UC Berkeley

This dissertation examines the impact of litigation on a social movement's dominant substantive goals and message. While scholars have devoted substantial attention to the study of social movement litigation, research in this area typically focuses on how social movements affect substantive law, or more broadly, how a movement's legal tactics bring about social change. By contrast, my focus in this dissertation is on how litigation affects the social movement itself. In particular, how does litigation as a tactic shape a social movement's collective agenda? How does it affect which perspective among possible competing visions comes to define the movement?

I investigate these dynamics through a case study of the lesbian, gay, bisexual, and transgender (LGBT) movement from 1985 to 2008. The study involves three phases of original empirical research, each of which investigates a potential mechanism that may privilege litigation over other tactics in its ability to set the LGBT movement's primary substantive agenda. First, I use a content analysis of newspaper coverage of LGBT politics to determine which movement tactics have received the most media visibility. Second, I perform a statistical analysis of LGBT organizations to determine which movement tactics have been most associated with organizational survival and stability. Third, I perform a qualitative analysis of a subset of those LGBT organizations to examine variation in the strategy-formation processes used by primarily litigation-, lobbying-, or protest-based movement groups.

The media content analysis revealed that litigation received more news coverage than any other LGBT movement tactic, suggesting that litigation had greater visibility than other tactics. In addition, the statistical analysis revealed that the movement organizations that used litigation had greater survival rates than other types of LGBT movement organizations, suggesting that litigation has been a particularly stable feature of LGBT politics. The qualitative analysis of LGBT organizations revealed further insights into how litigation may influence the agendas of non-legal movement actors. Whereas litigating LGBT movement groups proactively pursued preplanned organizational priorities, protest groups formed their agendas reactively, focusing on the issues covered by the mainstream media. This phenomenon appears to have diverted protest groups away from their original priorities and toward the issues that the media found newsworthy. Given my findings that litigation coverage dominated news headlines, the processes identified here may enable litigation to dominate protest activism as well. Taken together, these findings suggest that the media visibility and stability of social movement litigation may contribute to the prominence of litigation and cause legal goals to dominate the movement's overall substantive agenda. I describe this process as the "legalization" of a social movement's agenda.

This dissertation makes a novel contribution to existing scholarship by exposing systemic processes that may privilege movement litigation relative to protest, elevating the issues being litigated to top movement priorities. Significant implications follow for theories of law and social change. Focusing on litigation narrows a movement's agenda because courts offer a forum for only those grievances that can be translated into legal claims. This may be particularly problematic for movements that base their legal claims in antidiscrimination law, which has become settled around quite limited understandings of equality as formal access to equal opportunity and discrimination as an intentional, individual harm. This interpretation not only denies remedies for the structural factors most responsible for perpetuating inequality, it also places the focus on preventing individual wrongdoing rather than producing substantive outcomes. Thus, when antidiscrimination litigation comes to define an equality movement's priorities, the movement may find itself privileging issues with little hope of creating substantive social transformation.