The Courts, the Ballot Box, and Gay Rights: How Our Governing Institutions Shape the Same-Sex Marriage Debate

If the same-sex marriage debate tells us one thing, it's that rights do not exist in a vacuum. What works for one side at the ballot box often fails in the courtroom. Conservative opponents of same-sex marriage used appeals to religious liberty and parental rights to win ballot measure campaigns, but could not duplicate this success in court. Looking at the same-sex marriage debate at the ballot box and in the courts, this timely book offers unique insights into one of the most fluid social and legal issues of our day—and into the role of institutional context in how rights are used.

Why, Joseph Mello asks, did conservative opponents of same-sex marriage enjoy such an advantage when debating this issue in the popular arena of a ballot measure campaign? And why were they less successful at mobilizing the language of rights in the courts? His analysis shows us that rights don't just entitle us to resources; they also shape the way we see ourselves and are perceived by others. Thus, by using the language of rights to frame their cause, conservative opponents of same-sex marriage were able to construe themselves as victims of oppression, their religious and moral beliefs under threat. The same language, however, proved less useful, or even counterproductive, in courtrooms, Mello concludes, because the court’s norms and constraints force arguments to undergo more searching scrutiny—and rights-based arguments against same-sex marriage contain discriminatory stereotypes that cannot be supported with evidence.

In its analysis of the same-sex marriage issue,
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