Scott Barclay

The States and the Differing Impetus for Divergent Paths on Same-Sex Marriage, 1990–2001

Using a regression model of pooled time series data from the 50 states in the United States in the period 1990 to 2001, we look at the political, demographic, and social movement factors that provide the impetus for the enactment of state laws that proscribe the celebration of marriages involving lesbian and gay couples. In doing so, we consider the validity of existing indicators that have been previously associated with the introduction of policies concerning sexual orientation at the state and local level, as well as introduce new factors that might apply uniquely to the area of same-sex marriage laws.

Two spinning wheels: Studying law and social movements

Those interested in studying the relationship between law and social movements have a wide variety of theoretical and empirical research to draw on, from both social movement theory and legal studies. Yet these disparate studies of law and social movements rarely engage with each other. In this chapter, we review current developments in research on law and social movements and summarize the chapters in this special issue. These chapters offer insight into the multivalent nature of law for social movements, the factors shaping movements’ strategic engagements with the legal system, the relationship between law and identity for social movement activists, and the complex role that cause lawyers play in social movement processes and dynamics.

Backlash, Consensus, Legitimacy, or Polarization The Effect of Same-Sex Marriage Policy on Mass Attitudes

What are the effects of judicial action and policy implementation on attitude change? The previous literature indicates that attitudes may change, but there is some debate about its direction. According to some theories, legislation or litigation should strike a backlash, resulting in greater disapproval of the issue. Other perspectives contend that these acts reflect consensus, legitimate, or polarize the issue. We analyze panel data on attitudes toward same-sex marriage and feelings toward lesbians and gay men. In 2013, the U.S. Supreme Court made historic decisions on same-sex marriage, and residents in some states had same-sex marriage legalized. Given this variation, we decompose the multiple pathways attitudes change among residents in different policy contexts over time. We find that residents of states that had same-sex marriage policy introduced had the greatest reduction of anti-gay attitudes. We consider consensus and legitimacy as most applicable and provide minimal indication of backlash or polarization.

Lesbians, Gays, Bisexuals, and the Transgendered in Political Science: Report on a Discipline-Wide Survey.

This article reviews the results of a discipline-wide survey concerning lesbians, gays, bisexuals, and the transgendered in the discipline. We find that both research and teaching on LGBT topics have made some headway into the discipline, and that political scientists largely accept that LGBT issues can be fundamentally political and are worth studying and teaching for that reason. Nonetheless, troubling questions about discrimination both against those who conduct research concerning LBGT issues and LGBT individuals themselves remain.

In Search of Judicial Activism in the Same-Sex Marriage Cases: Sorting the Evidence from Courts, Legislatures, Initiatives and Amendments

In 2006, President Bush publicly stated that, in relation to the same-sex marriage issue, “activist judges” were thwarting the preferred policy of the elected representatives and the expression of popular will embodied in popular initiatives and constitutional amendments. Notwithstanding the philosophical discussion of the constitutionally assigned role of courts in the political system and the idea of judicial independence, President Bushs statement raises an interesting empirical question: In the case of same-sex marriage, have state and federal courts really acted in direct opposition to the expressed policy preferences of current or recent legislative majorities or overturned popular initiatives and constitutional amendments? Using evidence from state and federal legislative and judicial action around same-sex marriage primarily from the fifteen years preceding President Bushs 2006 statement, I argue that, with some rare exceptions, judges can not easily be identified as “activist” on the issue of same-sex marriage even if we assess their actions according to President Bushs criteria.

Posner’s Economic Model and the Decision to Appeal

Among those at the forefront of the attempt to restrict the growing appellate caseload has been legal scholar and federal judge Richard Pasner. Posner proposed a method, based upon economic assumptions, that he argues will liberate the appellate courts from the deluge of recent civil appeals. Because Posner’s model has played such an important theoretical and practical role in how we view the decision of losing litigants to appeal, the validity of the model and the real role of economic constraints have important implications. Using empirical research, I tested the validity of Posner’s model and I propose that economic considerations are not the primary motivations in losing litigants’ decision to appeal. I argue that, if Posner’s model is flawed, using this model may not only fail to decrease appellate case filings but could actually harm the legitimacy of the judiciary.

Appealing (but not Necessarily Winning) to Improve Your Social Status

In this article, I argue that litigants identify the appellate courts as offering a powerful and public arena where litigants’ claims are placed (at least temporarily) on an equal footing with the current state of the law. In this context, the initiation of appeals is treated as synonymous with receiving endorsements from the appellate courts that the litigants’ original claims had sufficient merit to deserve better treatment than they had received previously from either the opposing parties or the trial courts. These actions work to raise appellants’ social status, and I propose that such activity is one additional reason why some litigants might appeal.