The Legal Mobilization Dilemma
Douglas NeJaime, The Legal Mobilization Dilemma, 61 Emory L.J. 663 (2012).
This Article examines Perry v. Brown, the federal lawsuit challenging Proposition 8, through a social movement lens. While lawyers at the leading LGBT legal organizations sought to keep the federal courts away from Proposition 8, a new organization, the American Foundation for Equal Rights (AFER), filed the Perry suit. AFER’s well-resourced challenge to conventional movement wisdom materialized in large part because LGBT movement advocates had achieved so much success in using a legal mobilization strategy – one that deployed litigation in conjunction with a range of other tactics and exploited the mobilizing and political potential of rights claims – to place marriage equality on the national agenda. Using social movement theory to examine the effects of legal mobilization exposes a tension that social movement advocates must confront and that scholarly accounts have failed to fully capture: The same strategy that yields movement progress may channel tactical conflict into powerful litigation that threatens and redirects that strategy. This is what I term the legal mobilization dilemma. As a general matter, litigation poses a threat when tactical disagreement arises; any single movement member can initiate a lawsuit that threatens to bind the entire movement. But sustained and successful legal mobilization may make litigation an especially appealing and powerful option through which to contest movement strategy. By attracting constituent and elite support for rights-based frames and court-centered tactics and by making litigation more viable as both a political and doctrinal matter, successful legal mobilization may channel tactical conflict into potent lawsuits that have the capacity to significantly redirect the movement’s strategic trajectory.