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

Reviewed by Zein Murib

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Scholars, activists, and political actors generally agree that focusing on rights claims is one of the key ways that marginalized groups can articulate political grievances, mobilize movements, and, ultimately, achieve successful outcomes in American politics. The near-axiomatic power of rights in both social science scholarship and political practice stems from the perceived successes of the black civil rights movement, which demonstrated that claims to rights could be used to influence significant political changes, either through the courts or legislation, and thus provide a pathway to full standing for members of oppressed groups.

Perhaps owing to this focus on the gains of the civil rights movement, political scientists have paid less attention to what happens when two different groups engage in public conflicts over rights, as in the case of proponents and opponents of same-sex marriage. In The Courts, the Ballot Box, and Gay Rights, Joseph Mello examines these conflicts over same-sex marriage and extends the study of rights claims and minority groups in a useful direction, asking under what circumstances rights discourse might be used by political actors to advance the interests of one group at the expense of another. Using a mixed-methods approach that combines quantitative content analysis with two indepth case studies of same-sex marriage battles in California and Maine, Mello compellingly demonstrates that opponents of same-sex marriage successfully used the language of rights as a “contingent resource” to stymie efforts to achieve marriage equality through ballot initiatives but failed to do so when the question of same-sex marriage came before judges (p. 11).

Mello probes these divergent outcomes in his case studies to advance the argument that institutional contexts—such as ballot initiatives or the legal system—shaped the debates over marriage and that these differences are due to institutional norms. For instance, his case study of California's Proposition 8 shows that the populist norms undergirding ballot initiatives in that state created the conditions in which same-sex marriage opponents could incite a “moral panic” by claiming that same-sex marriage would limit religious freedom as well as the rights of parents to insulate their children from questions of sex and sexuality. By tapping into these populist anxieties and underscoring the rights that presumably would be lost if same-sex marriage was to become legal, opponents successfully used rights discourse to obscure their religious affiliations and appeal to a broader secular base of supporters who ultimately approved Proposition 8.

These same assertions about the costs of same-sex marriage, however, failed to pass muster when they were debated in the courts. Mello argues that this is because norms of evidence, facts, and sustained debate by both sides in legal proceedings. Using California's 2010 Perry v. Schwarzenegger case, Mello shows how proponents of same-sex marriage exploited these norms by calling on expert witnesses to effectively rebut the arguments that same-sex marriage would limit parental rights and religious freedoms.

By focusing on opponents of same-sex marriage and institutional contexts, Mello's book makes a much-needed contribution to the scholarship on lesbian, gay, bisexual, and transgender politics in the United States, which tends to examine these debates from the perspective of proponents in the courts or ballot initiatives. It is for this reason that I would have liked to see Mello discuss the interrelationship between political actors and institutions more explicitly. In other words, are institutional norms shaping debates or are political actors tailoring discourse for specific audiences with the hope of shifting institutional norms? These questions lingered after I finished the book, but by no means do they detract from the breadth and depth of this impressive study, which I think would make an excellent addition to a graduate seminar on state politics.

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