Academic journal article Sociological Focus

Turning to the Courts: A Quantitative Analysis of the Gay and Lesbian Movement's Use of Legal Mobilization

Academic journal article Sociological Focus

Turning to the Courts: A Quantitative Analysis of the Gay and Lesbian Movement's Use of Legal Mobilization

Article excerpt

We quantitatively examine the factors influencing the lesbian and gay movement's involvement in state-level appellate cases through an analysis of Lambda Legal's judicial agenda from 1981 through 2000. We combine a list of state appellate cases involving gay and lesbian rights during this period with data from Lambda's "Docket Update" to create a data set that identifies which cases Lambda was involved in. We theorize that Lambda's involvement will be shaped by the potential policy implications of the case, the organization's ability to influence the outcome, and organizational membership concerns. Using logistic regression, we examine the effect of case characteristics, the political and cultural climate in the state, and variations in the state's lesbian and gay community on the likelihood of Lambda participating in a particular state-level case. We add to the understanding of movement tactical decisions and the factors influencing the likelihood of legal mobilization.

The goal of this article is to investigate the conditions under which a social movement legal organization decides to petition the court. More specifically, the study quantitatively examines the factors influencing the gay and lesbian movement's involvement in state-level appellate cases through an analysis of Lambda Legal's judicial agenda from 1981 through 2000.1 During this period, 286 state-appellate cases involving gay and lesbian rights were decided. Lambda Legal (Lambda), the primary legal organization of the movement, participated in just over 27 percent of them. Our goal is to investigate the factors influencing Lambda's participation in some cases, but not others. As legal mobilization becomes a more frequent tactic, it is important to understand the factors that encourage and discourage a movement's petitioning of the courts. Through this analysis, we are able to add to the understanding of movement tactics, generally, and the factors influencing the likelihood of legal mobilization more specifically.

While research has explored the conditions under which legal mobilization is successful (e.g., Andersen 2005; McCammon and Kane 1997; Pinello 2003), fewer studies investigate a movement's decision to use legal mobilization as a tactic in its struggle for change (see McCammon 2001 and McCann 1994 for notable exceptions). Instead, scholars assume that movement organization dockets are determined by legal factors, such as whether or not the case is a good test case or the case's ability to set precedent (Andersen 2005). However, research suggests that the larger environment surrounding the case may shape the movement's willingness to mobilize the law (McCann 1994).

The modem gay and lesbian movement in the United States offers an ideal case in which to study legal mobilization. Though the movement is diverse and has emphasized a wide variety of goals and tactics over its lifetime, legal mobilization is a common tactic (Cain 2000; Rayside 1998; Vaid 1995). However, few quantitative studies have been conducted on the lesbian and gay movement's use of the courts (Pinello 2003). Beginning in the 1950s, individual gays and lesbians began to use the courts to fight oppression (Adam 1995; D'Emilio 1983). In 1973, the Lambda Legal Defense and Education Fund, now called Lambda Legal, was created specifically to fight for homosexual rights in the courts (Andersen 2005; Vaid 1995). By representing clients and filing amicus briefs in lesbian and gay rights cases, Lambda works to achieve movement goals through the court system. After Lambda's creation, several other legal organizations were formed, including the Gay and Lesbian Advocates and Defenders (1978), The National Center for Lesbian Rights (1977), the American Civil Liberties Union's [ACLU's] Lesbian and Gay Rights Project (1985) and the Servicemembers Legal Defense Network (1993) (Andersen 2005; National Center for Lesbian Rights 2014; Vaid 1995). In addition to being the oldest, national legal organization in the lesbian and gay movement, Lambda has been, by far, the largest with a significantly bigger budget and docket than those of the other groups (Andersen 2005; Vaid 1995). …

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