Civil unions are set to become law in Illinois, with Gov. Pat Quinn promising to sign legislation approved by the General Assembly on Dec. 1. The law would take effect next summer. At the same time, a court case striking down California’s Proposition 8 ban on same-sex marriage may be winding its way to the Supreme Court, and President Obama has signed legislation that repeals the military’s “don’t ask, don’t tell” policy. Anna-Maria Marshall, head of the sociology department and also a professor of law at the University of Illinois, is an expert on the relationship between social movements , social change and the law, and has followed the development of gay-rights legislation. Marshall was interviewed by News Bureau social sciences editor Craig Chamberlain.
What has surprised you, if anything, about the passage of a civil unions bill in Illinois?
What’s most surprising is that the debate has been carried out and legislation has been passed with so little rancor. In other states that have considered civil unions and same-sex marriage, there have been lawsuits, often accompanied by expensive ad campaigns designed to generate public opposition. We haven’t seen any of that here in Illinois, where the issue came up during our gubernatorial election, but took a back seat to the state economy and budget.
You studied the campaign in Vermont that resulted in the passage, with little opposition, of a civil unions bill there – and the Legislature has since approved same-sex marriage. What were the keys to that happening?
The campaign in Vermont began with a lawsuit, but the lawyers understood that litigation alone would not produce a meaningful victory. Even a favorable judicial decision can be undermined if it doesn’t have enough public support. So the lawyers who led that campaign laid the groundwork for the Vermont Supreme Court’s decision before they even filed the lawsuit. They worked with community organizations and religious groups, and they organized events at state fairs to raise public consciousness about same-sex marriage and civil unions. So by the time they filed the lawsuit, many Vermont citizens were already sympathetic to their cause.
Was the California court case a good move for the cause of gay marriage, or gay rights in general?
The most recent California litigation seemed risky to me. It was brought by high-powered constitutional lawyers, Ted Olson and David Boies, who have extensive experience litigating constitutional claims in the federal courts but who have little experience with the legal issues surrounding sexual orientation and no obvious connection to the gay-rights movement. And choosing federal court seemed perilous given that the Supreme Court has been so skeptical of expansive new claims for equality.
Using the courts in these cases poses several different risks. First, losing the case can set back a movement for years. If the Supreme Court says that depriving same-sex couples of marriage rights is acceptable, it obviously would not end the struggle, but it would make it much harder to proceed. And even favorable judicial decisions can create backlash. Opponents can attack such decisions as judicial activism that subverts the will of the people.
Are there common patterns in the success of social movements – such as in where and when it’s best to work through courts, legislatures, or the media?
When marginalized groups are locked out of the political process because of their minority status, they often choose to go to court. Litigation can be an effective strategy for articulating a claim of injustice using the language of rights, which is particularly powerful in American politics. They can use these lawsuits as a way of educating the public about their plight and generating public support for reform. This creates a political environment that later supports legislative success. As noted, however, relying too much on the courts carries some risk, and even favorable decisions can be undermined if they lack sufficient public support.
Given recent events and trends, how do you gauge the state of the debate on gay rights in the U.S. and where we’re headed on these issues?
I think we’re at the tipping point. The political battles over gay rights are by no means over, but we’re seeing more and more legislation and judicial decisions that expand equal rights rather than restrict them. Interestingly, the American public seems way out in front of its elected officials. Public opinion polls show extensive support for civil unions and the repeal of “don’t ask, don’t tell.” At some point, our politicians will catch up.
