Document Type

Article

Publication Date

2015

Center/Program

Center for Gender & Sexuality Law

Abstract

Talking about marriage equality and reproductive rights advocacy1 together presents an interesting, and sometimes puzzling, assortment of challenges and opportunities. Both involve efforts to secure legal protections and social recognition that are fundamentally important to those who need them yet also deeply provocative to their opponents. For both, too, advocacy takes place on a shifting terrain shaped by competing views of sexuality, autonomy, equality, personhood, and more.

Yet the two advocacy efforts have experienced very different receptions over time. Just over two decades ago, the Supreme Court expressly affirmed that women have a constitutional right to seek an abortion and rejected an effort by abortion adversaries to have the Court overturn Roe v. Wade.2 Marriage equality, by contrast, seemed almost like a pipe dream. Although the Hawaii Supreme Court's recognition of same-sex couples' marriage rights claim the following year3 seemed to hold promise, the federal government and many states rushed to pass "defense of marriage" acts (DOMAs) to short-circuit similar claims throughout the country.4

During the 1980s, the pattern was similar, with the prospects for reproductive rights seeming far more secure than the hopes for marriage equality. In the same term that the Supreme Court invalidated another Pennsylvania law restricting access to abortion,5 the Court also rejected a gay man's constitutional claim against Georgia's sodomy law, observing that it was "at best, facetious."6 Popular views about homosexuality generally, and marriage rights for same-sex couples in particular, were also overwhelmingly negative, while roughly half of Americans supported a woman's right to choose an abortion.7

More recently, though, the trajectories appear to have crossed. Public opinion and legal developments have moved sharply in favor of marriage equality.8 By contrast, during the same period, both case law and legislation have increasingly rejected advocates' claims and circumscribed access to abortion.9

This Essay aims to understand how advocacy strategies-particularly advocacy that is outside the courtroom but linked to litigation on a related issue-have contributed to these shifts in trajectories and helped to shape the environment in which courts are deciding cases.10 In particular, my focus is on the role of lawyers in contributing to and guiding that environment-shaping process.

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