The United States has seen a dramatic shift in support for marriage equality for same-sex couples over the past decade, culminating in a recent gay rights victory in the U.S. Supreme Court. (1) Also in the past year, several states have approved marriage rights for same-sex couples through the legislative or initiative process, reflecting the increasing cultural and political acceptance of marriage between same-sex partners. Polls support this cultural shift in the United States, with a 16% jump in approval for same-sex marriage since 2001 and a 24% jump since 1996. (2) This reflects a significant change in public opinion over a very short period of time and is in stark contrast to the large number of states that have passed and continue to enforce constitutional amendments banning marriage rights for same-sex couples. (3)
After the Hawaii Supreme Court held in 1993 that a ban on same-sex marriage was presumptively unconstitutional because it made an impermissible classification based on sex, (4) opponents of same-sex marriage successfully used the initiative process to pass several state constitutional amendments to prevent similar rulings by other state courts. (5) This backlash prompted many legal scholars to debate whether gay rights activists should have used the judicial system or the political process to gain marriage rights. (6) On one side, scholars argued that pushing social change through the court system does not produce tangible results (7) and may cause a backlash. (8) Others argued that using the court system to push for social change can serve to educate the public, (9) sway public opinion, (10) and foster the political process. (11) Some opponents of using the judicial system point to the continuing conflict associated with Roe v. Wade, (12) and others point to the political backlash that resulted from a few state court decisions holding that bans on same-sex marriage were unconstitutional. (13)
In one of the leading books on whether courts can influence social change, The Hollow Hope, Gerald Rosenberg analyzes the extent that courts have helped advance many political and social causes in the last several decades, focusing on civil rights, abortion and women's rights, the environment, and criminal law. (14) In his most recent edition, he details the fight for marriage equality for same-sex couples, discussing the backlash and the subsequent change in public opinion, but he asserts that the benefit of using the court system to advance civil rights is generally outweighed by the subsequent political cost. (15)
This discussion about the role that courts should play in advancing civil rights fails to address the difference in how voters and judges evaluate arguments. A communication theory by Professor Walter Fisher proves instructive in understanding this difference. Fisher's theory, called the "narrative paradigm," presumes that all humans are storytellers and communicate mostly through stories. (16) People evaluate the stories they hear based on their own experiences, views of morality, and values. (17) Fisher labels this evaluative process "narrative rationality." (18) Fie believes that only experts have the skills and abilities to use logic and reason, where most lay people make judgments based on culture, biography, and their life experiences. (19) Under Fisher's theory, voters are lay people who are more likely to evaluate political arguments using their own life experiences and views on morality, while judges are experts who are more likely to use reason and logic to evaluate legal arguments.
This difference between the rhetoric used in initiative campaigns and the rhetoric used in courts helps explain why gay rights activists have generally been much more successful at advancing marriage rights through the judicial system than through the political process. (20) When a few local governments were passing laws that protected gay people from discrimination, gay rights opponents learned very quickly that they could reverse or block those laws through the ballot initiative process. …