Goodridge et Al. V. Department of Public Health et Al.: The Role of Litigation in the Struggle for Same-Sex Marriage

By Filho, Jos Luiz Prado | Human Architecture, Fall 2008 | Go to article overview

Goodridge et Al. V. Department of Public Health et Al.: The Role of Litigation in the Struggle for Same-Sex Marriage


Filho, Jos Luiz Prado, Human Architecture


Abstract: Much debate in Political Science has focused on the role of court decisions as catalysts of social reform. Scholar Gerald Rosenberg has argued litigation often only creates short-term effects, as courts are constrained in creating concrete public policy. Scholar Michael McCann, instead, has suggested legal strategies have lasting effects even when decisions go against activists' claims. In his view, they are capable of increasing social mobilization and awareness of rights, and helping activists develop alternative strategies. This thesis tests those diverging theories by analyzing the effects of the landmark 2003 Massachusetts Supreme Judicial Court decision on same-sex marriage (Goodridge, et al. v. Department of Public Health, et al.). This requires empirical research on select political, judicial and social events throughout the country, evaluation of public opinion towards the legal recognition of same-sex relationships, analysis of surveys of gays and lesbians' response to the same-sex marriage debate, and personal interviews with select Massachusetts figures involved in the same-sex marriage movement. The findings suggest that the Goodridge suit was an effective strategy used by activists in the creation of concrete policy regarding same-sex marriage in the Commonwealth. Despite the backlash it created, the decision has spurred further same-sex marriage litigation across the country, influenced nonlegal actors to support and often promote same-sex marriage, increased "rights consciousness" in the gay and lesbian community, and strengthened the work among national and state gayrights groups. This thesis argues that effective social reform can be achieved through the use of litigation, legal strategies have lasting extra-judicial effects, and that state supreme court decisions have become crucial in changing the status quo.

The year 2003 and 2004 were marked by a wave of events related to gay and lesbian rights throughout the country. First, in June 2003, the U.S. Supreme Court delivered a landmark decision in Lawrence v. Texas by declaring the unconstitutionality of sodomy laws. The decision marked a great victory for gay-rights activists who for decades had battled the issue at the state and national levels. Yet, Lawrence only preceded what some have called one of the most groundbreaking legal decisions regarding gay and lesbian rights in the United States. On November 18, 2003, in Goodridge et al. v. Department of Public Health et al. , the Massachusetts Supreme Judicial Court delivered a landmark ruling by stating that gay and lesbian couples could no longer be excluded from civil marriage in the state. The 4-3 opinion recognizing the plaintiffs' argument that barring gays and lesbians from marrying their loved ones was unconstitutional was the first of its kind in the country. As established by the Justices, one-hundred-and-eighty days following the decision, the first same-sex marriages were performed in the state.

Goodridge became a major victory in the more-than-half-a-century-long struggle for rights by gays and lesbians in the United States. The suit was part of a strategically crafted decision by gay-rights advocates to use litigation in pursuing the right for same-sex couples to legally marry. The S.J.C. decision sent shockwaves across the country, and same-sex marriage became part of the national political and social debate. Goodridge has also been responsible for revitalizing a debate among scholars on the role of court decisions in bringing about social reform. Political scientists have long ago come to question the effectiveness of the use of legal strategies by social movements in challenging the status quo and creating lasting social changes.

In regards to the debate on the importance and necessity of the use of litigation as catalyst of social reforms, the arguments of scholars Gerald N. Rosenberg and Michael W. McCann illustrate the diverging views on the issue. Rosenberg has argued that legal mobilization is a futile and ineffective tactic used by reformers, either because law often only creates short-term effects, courts are constrained in creating concrete public policy, or due to the fact that legal tactics block a more collective participation in pushing for change. …

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