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38 Fla. St. U. L. Rev. 345
Florida State University Law Review
Winter, 2011
Articles
SHOTGUNS, WEDDINGS, AND LUNCH COUNTERS: WHY
CULTURAL FRAMES MATTER TO CONSTITUTIONAL LAW
Anders Walker a1
Copyright (c) 2011 Florida State University Law Review; Anders Walker
Abstract
Drawing from social movement theory, this Article shows that both the constitutional challenge to gun bans in Illinois and
the constitutional challenge to California's same-sex marriage ban have dealt with issues of frame alignment similar to those
confronted by the civil rights movement in the 1960s. Yet, it is the Second Amendment litigation, ironically, that has most
closely followed the movement's attention to aligning legal claims with cultural trends. Out of this analysis emerges a larger
claim that the analytics of frame alignment, and social movement theory generally, deserve more attention by constitutional
scholars, both as a uniform analytic for comparing divergent reform agendas, and for better understanding the central role of
cultural frames in determining the parameters of constitutional rights.
I. Introduction
II. The Sit-Ins and the Cultural Frames
III. The Second Amendment and Cultural Frames
IV. Same-Sex Marriage and Cultural Frames
V. Conclusion
345
348
361
370
382
I. Introduction
Though most constitutional scholars celebrate the civil rights movement, few have asked whether and to what extent the
movement relates to current efforts of constitutional reform. Yet, the rise of direct action in the 1960s marked a bold realignment
of the collective action, social movement frames of the civil rights struggle, a movement that has direct relevance to current
constitutional battles, particularly over marriage and guns. As this Article will show, both the constitutional challenge to gun
bans in Illinois and the constitutional challenge to California's same-sex marriage ban have dealt with issues of frame alignment
similar to those confronted by the civil rights movement in the 1960s. 1 Yet, it is the Second Amendment *346 litigation,
ironically, that has most closely followed the movement's attention to aligning legal claims with cultural trends. 2
To illustrate, this Article will proceed in three parts. Part II will introduce the analytics of frame alignment, a subset of social
movement theory that has been largely neglected by constitutional scholars. The analytics help explain the persuasive power of
the civil rights movement, particularly the sit-ins, together with strategic intersections between the sit-ins and Supreme Court
decisions, including Brown v. Board of Education 3 and New York Times Co. v. Sullivan. 4 Part III will show how gun rights
proponents learned from the civil rights movement, ultimately adopting a pragmatic, frame alignment strategy that stressed
sportsmanship and self-defense, while conceding federal regulation of automatic weapons banned after the assassination of
Martin Luther King, Jr. in 1968. Part IV will show how proponents of same-sex marriage carefully engaged in cultural frame
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alignment in the 1980s and 1990s, only to be upstaged by conservative lawyer Ted Olson, whose pursuit of litigation in the
face of opposing state trends risks ignoring the basic lessons that the civil rights movement has to teach. 5
Out of this analysis emerges a larger claim that the analytics of cultural frame alignment-a subset of social movement theorydeserve closer scrutiny by constitutional scholars, particularly those who focus on popular constitutionalism, social movements,
and civil rights. 6 Though leading authorities like Michael J. Klarman, Reva B. Siegel, and William N. Eskridge, Jr. have
recovered rich narratives and articulated important insights about connections between law, culture, and rights, they have tended
not to engage social movement scholarship as fully as they might. 7 One reason for this, articulated *347 by Edward L. Rubin,
is that social movement theory emerged out of scholarly interest in mass movements, not litigation, and focused on how those
movements influenced political opportunities, not constitutional results. 8 Yet, this has begun to change as socio-legal scholars
like Ellen Ann Andersen and James Laue have begun to extend political opportunity analysis to “legal opportunity” analysis,
indicating that social movement analytics developed in the 1970s and 1980s are not only relevant to the study of constitutional
law, but help to explain how key aspects of that law hinge on cultural frames. 9
The role of culture in American constitutional law remains one of the most undertheorized topics in legal studies. 10 To date,
the best *348 work focuses on a relatively limited definition of “constitutional culture,” meaning the discursive field in which
judges, lawyers, and social movement actors interact, altering constitutional meanings in the process. 11 Yet, such studies
ignore the full scope of cultural formations, or what Stuart Hall calls the “actual, grounded terrain of practices, representations,
languages and customs” that animate society at any given time, and that inform the manner in which social movement actors,
and constitutional litigators, choose to frame or align their specific legal claims. 12 The constantly shifting nature of culture writ
large, in other words, both precludes legal opportunities and, at the same time, opens them but only so long as social movement
litigators think strategically about the alignment of legal claims with cultural trends. 13 To illustrate, this Article borrows from
social movement theory to articulate explicitly that which is implicit in most of the best studies of constitutional change but
also to stress the practical value of thinking about the relationship between constitutional law and culture in systematic, crossdisciplinary terms, reconciling the fields of law, sociology, and political science. Even lawyers might benefit from such an
approach, for it is they who suffer most without an appropriate theoretical understanding of when litigation should be initiated,
how it should be framed, and ultimately how constitutional law and social movements intersect.
II. The Sit-Ins and the Cultural Frames
Perhaps no better example of the alignment between cultural frames and constitutional results exists than the civil rights
movement *349 of the 1950s and 1960s. Two pivotal cases-Brown v. Board of Education and New York Times Co. v.
Sullivan-illustrate how constitutional litigation stemming from the movement intersected directly, albeit differently, with
social movement organizing on the ground, both involving strategic decisions by litigants interested in aligning legal claims
with prevailing cultural frames. 14 As we shall see, however, Brown's success at linking civil rights with cultural concerns
became complicated by popular consternation over the consequences of school desegregation, resulting in southern hostility
and northern apathy, while Sullivan's alignment of civil rights with free speech proved conducive to maintaining the media
apparatus through which the civil rights movement would eventually win national support. 15
To explain how this is so, a short introduction to social movement theory and frame alignment is helpful. Beginning in the
1970s, sociologists and political scientists inspired by the civil rights movement began to take an interest in the various ways that
movement organizers articulated reform agendas in terms that average people could understand. 16 Average understandings,
they theorized, hinged on “frameworks,” or “schemata of interpretation” that lay individuals use to “locate, perceive, identify,”
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and in short explain events. 17 To be successful, social movement actors needed to construct their own frames, or schematic
interpretations, that diagnosed social problems, identify a clear prognosis of those problems, and then mobilize target audiences
to solve them. 18 These “collective action frames,” as they came to be called, worked best when aligned with the ideas,
assumptions, and beliefs-in short cultural frames-already held by target audiences, a technique that David A. Snow, Robert
Benford, and others have termed “frame alignment.” 19
Beginning in the 1980s, socio-legal scholars began to identify different types of frame alignment, ultimately settling on four
basic categories. 20 In the first, social movement actors who attempt to link two *350 separate collective action frames, like gun
rights and abortion, for instance, engage in “frame bridging.” 21 In the second, movement strategists who focus on one particular
issue that average people may otherwise be apathetic towards, like global warming, engage in “frame amplification.” 22 Third,
social movement actors who find little support for their particular positions may have to broaden their reform agenda, or
engage in “frame extension” by expanding the boundaries of their claims to “encompass interests or points of view that are
incidental” to their own goals, but popular among their target audience. 23 Finally, movement actors who take on a subject
that has very little support at all, say plural marriage, might have to completely transform popular opinion in what is called
“frame transformation.” 24
While the various strategies of frame alignment can help effect social change, they by no means guarantee that movement actors
will be able to overcome, or for that matter transform the collective “stock of meanings, beliefs, ideologies, practices, values,”
and “myths,” shared by average people, or what socio-legal scholars call culture. 25 Interest in the cultural boundaries of reform
has led some scholars to conclude that reform is ultimately contingent on either appealing to or changing prevailing cultural
norms, or frames, what Mayer Zald has called “cultural stock.” 26 While movement campaigns that reject cultural stock fail,
argues Zald, movement efforts that draw from existing stock, or reveal “contradictions” in that stock, i.e., between prevailing
prejudice and popular ideals, tend to succeed. 27 As do movements that successfully transform cultural stock, either by altering
popular opinions, beliefs, or practices (frame transformation), for example, or by linking movement claims to larger majority
values (frame bridging), both processes that fall under the larger theoretical umbrella of “cultural framing.” 28
To show how cultural framing impacted the trajectories of civil rights, it is helpful to look at the decisions made by litigants in
Brown v. Board of Education. When Thurgood Marshall first decided to file Brown in 1950, his decision reflected a prognosis
that constitutional *351 litigation, as opposed to voter registration, mass demonstration, or congressional lobbying, represented
a more effective tool for social change. 29 Of course, this coincided with Marshall's professional background. 30 As a lawyer,
he represented a particular type of social movement actor, an individual bound by procedural rules and doctrinal parameters,
or legal frames, who at the same time shared the social movement goal of effecting political reform. 31
Interestingly, Marshall's decision to focus on desegregation in the decade after World War II marked a prescient awareness of
what socio-legal scholars would later call frame alignment. 32 Intuitively, Marshall knew that by linking a formal legal claim
rooted in equal protection with the plight of African Americans living under Jim Crow, he could take advantage of larger cultural
shifts occurring in the United States, particularly among national elites. 33 As early as July of 1946, for example, Attorney
General Tom Clark spoke out against racial violence in Georgia, declaring it “ ‘an affront to decent Americanism.’ “ 34 One
year later, a civil rights committee appointed by President Truman published To Secure These Rights, a bold report identifying
civil rights-including voting rights, segregation, and restrictive covenants-as important areas of needed reform. 35 Shortly
thereafter, Truman himself publicly endorsed the need for robust action in the civil rights arena, ordering desegregation of the
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armed forces. 36 The Supreme Court joined, declaring racially restrictive covenants unconstitutional in 1948 and undermining
segregation in higher education in 1950. 37
Though southern officials rankled at such moves, other changes materialized at the grassroots that boded positively for Marshall
as *352 well. 38 One such change-ironically-was a surge of interest in the psychological development of youth, particularly
teenagers. 39 Harvard Professors Sheldon and Eleanor Glueck spearheaded such interest by conducting a massive study of 1000
children to discern what precisely led some to become productive citizens and others to break the law. 40 Others followed
suite, including New York psychiatrist Fredric Wertham who became nationally known for exposing the harmful effects of
violent “crime comics” on youth, even as he became interested in the effects of segregation on race. 41 In 1946, for example,
Wertham served as the “guiding force” behind the creation of a free psychiatric clinic in Harlem, geared towards helping African
Americans deal with the debilitating psychological effects of racism. 42
Impressed, NAACP lawyer Jack Greenberg contacted Wertham to see if he might bring black school children from Delaware
to be examined at the free clinic. 43 Wertham agreed, later volunteering as an expert witness for Greenberg in the Delaware
case Belton v. Gebhart, 44 one of the five segregation cases that would be consolidated into Brown v. Board of Education. 45 In
court, Wertham argued that segregated schools engendered an “unsolvable emotional conflict” in the minds of minority youth,
ultimately causing “tension in all interpersonal relationships.” 46
Wertham's testimony in the Delaware portion of Brown, together with the work of social scientists Franklin Frazier, Kenneth B.
Clark, and others, proved a strategic success. 47 Not only did the scientists *353 testify to the psychological development of
children, an issue that possessed a high level of what socio-legal scholars call “resonance,” but their very presence aligned the
cultural authority of the scientific establishment with Marshall's diagnostic framing of segregation as an institution that caused
harm-not something that white southerners were willing to admit. 48 The Supreme Court proved so impressed with Marshall's
social science evidence that Chief Justice Earl Warren used it to support the core legal claim that segregation violated the Equal
Protection Clause of the Fourteenth Amendment because it harmed black youth. 49 “Segregation of white and colored children
in public schools,” asserted Chief Justice Earl Warren, two years after Wertham testified in Delaware, “has a detrimental effect
upon the colored children.” 50 To support its assertion, the Court cited a string of sociological studies, gathering them in footnote
eleven of its ruling. 51
Of course, white southerners disagreed. Aghast that the Court had invoked science to overturn Jim Crow-a legal system that had
enjoyed longstanding constitutional support-southern segregationists engaged in what social movement theorists call counter
framing, or a contest to undermine the alignments made by social movement actors; in this case Marshall. 52 “I submit that white
children also have rights,” proclaimed Mississippi Senator James O. Eastland, only weeks after Brown was handed down. 53
“[T]ensions and frictions generally found in an interracial school,” continued Eastland, “certainly will have a bad effect on
a white child, and in my judgment *354 will interfere with the white child's ability to learn.” 54 South Carolina journalist
William D. Workman echoed Eastland's concerns in a book that earned him region-wide acclaim. 55 “[T]he integrationists, who
cry for racial admixture in the cause of bolstering the personality development of a Negro minority,” complained Workman,
“do not hesitate to compel the mingling of a white minority with a black majority without any consideration of the inevitable
psychological impact upon the personalities of the white children.” 56
To support the counter-thesis that integration would harm whites, segregationists employed elaborate compilations of crime
rates, venereal disease rates, and illegitimacy rates, even manipulating state law to exacerbate seeming disparities in these
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rates. 57 For example, in 1955 Mississippi invalidated common law marriage in the hopes it might artificially boost the
appearance of black illegitimacy rates in the state. 58 North Carolina, conversely, manipulated state law to mask the compilation
of white illegitimacy rates by encouraging adoptions. 59
Segregationist manipulations of statistics sought to align the southern position on race with an aspect of the national concern over
child development that Marshall had not anticipated, namely white delinquency. 60 Though concerns over juvenile delinquency
and crime had existed as early as the 1920s, such fears exploded in the 1950s-after Marshall had already decided on his litigation
strategy in Brown. 61 Part of the reason for this was an actual increase in the rate of juvenile crime, a jump of fifty-five percent
between 1952 and 1957. 62 Though partially explained by changes in the types of crimes that were tabulated, mass media
portrayals of teen rebellion exacerbated public perceptions of the crisis. 63 Hollywood films like The Wild One, Blackboard
Jungle, and Rebel Without a Cause all stoked popular concern over youth crime. 64
Even Fredric Wertham, the same psychiatrist who testified for the NAACP in Belton v. Gebhart, published a book on
delinquency entitled Seduction of the Innocent in 1954, the same year that Brown was *355 decided. 65 While the book
concentrated on the negative effect of crime comics, illustrated serials with titles like Tales from the Crypt, Reform School
Girl, and Crime Detective, Wertham endorsed a larger theory that children were uniquely vulnerable to negative influences in
their surroundings, a claim made again and again by segregationists. 66 “Even more than crime,” wrote Wertham, “juvenile
delinquency reflects the social values current in a society.” 67 Both adults and children absorb these social values in their
daily lives, argued Wertham, whether at home, in school, at work, or “in all the communications imparted as entertainment,
instruction or propaganda through the mass media, from the printed word to television.” 68
As the cultural frame of delinquency became more and more pervasive, Thurgood Marshall found northern support for public
school desegregation waning. Though opinion polls registered initial support for Brown, that support never rose to a level
significant enough to overcome southern opposition to civil rights bills in Congress in the 1950s. 69 For example, a civil rights
bill aimed at curbing massive resistance to Brown was almost completely gutted by southern congressmen in 1957, while a
similar bill was neutered by southern elected officials in 1959. 70 Even antics like Governor Orval Faubus's refusal to protect
black students from white mobs in Little Rock in 1957 only triggered a temporary spike in northern outrage, doing relatively
little to stoke sustained northern support for Brown. 71 For example, one year after President Eisenhower sent federal troops
into the city to maintain peace, Orval Faubus closed Central High School, effectively ending integration, without significant
northern complaints. 72
*356 In fact, just as the problems in Little Rock subsided, opposition to school desegregation actually began to grow in the
North, particularly in northern cities like New York. 73 As early as 1957, for example, white parents in Brooklyn resisted
NAACP efforts to redistrict public schools in Bedford-Stuyvesant, desperately attempting to keep their children separated from
blacks. 74 Animating white fears were concerns over juvenile delinquency, reinforced by a grand jury investigation in November
1957 that found remarkable levels of youth violence and crime in New York City, so much so that the jury recommended police
officers be stationed in schools to maintain peace. 75 In December, disaster struck when George Goldfarb, the principal of an
integrated high school in Brooklyn, committed suicide after being called to testify before a grand jury investigating school
violence, including the rape of a female student in his school's basement. 76
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Pleasantly surprised, southern newspapers and political leaders trained their sights northward. Racially “[m]ixed school
violence” led to Goldfarb's suicide, announced Mississippi's Jackson Daily News. 77 “[I] would ‘hate to think what the
metropolitan press would have done to us,’ ” exclaimed Arkansas Governor Orval Faubus in January 1958, “if the Brooklyn
school violence had happened in Little Rock.” 78 “Racists” at the New York Times were trying to hide the role that blacks played
in the violence, announced the Montgomery's Advertiser. 79 White southerners were “deeply sympathetic with the citizens
of Brooklyn in the difficulties they are experiencing in maintaining the integrity and independence of their public schools,”
announced former Senator of Georgia Herman Eugene Talmadge. 80
Southern exuberance over New York's racial quandaries coincided with a larger shift in the South away from defiant opposition,
or massive resistance, and towards a more moderate, legalist stance against integration. 81 Though legal historian Michael
Klarman argues that the extremist backlash to Brown lasted into 1963, a close survey of the evidence indicates that this might
be an overstatement. *357 82 By the spring of 1959, the more radical aspects of the backlash to Brown in the South had
begun to fizzle, entering what historian Numan V. Bartley has called a “thermidorean reaction,” as moderates replaced massive
resisters across the region. 83
Meanwhile, debate broke out in elite legal northern circles over the wisdom of the Court's foray into school segregation in the
first place. In January 1958, Learned Hand, a revered federal circuit judge, publicly criticized the Supreme Court for exceeding
its constitutional bounds, behaving like a “third legislative chamber” and even jeopardizing American democracy. 84 According
to Hand, “nothing” in the Constitution granted the Court the power to invalidate state law, including Jim Crow laws in the
South. 85 In fact, the federal circuit judge went so far as to attack the theory of judicial review itself, arguing that it was “not
a logical deduction from the structure of the Constitution,” but amounted instead to a “practical condition” that should only be
invoked when absolutely necessary to preserve democratic government. 86 Such was not the case with school desegregation,
he maintained, a policy issue that had little, if anything, to do with vital national interests. 87 According to Hand, questions
of public education and race constituted little more than debates over “relative values” best left to the legislative branch of
government. 88 Judicial interventions in the matter, argued Hand, amounted to little more than dubious grabs for power that
failed to “accord” with the “underlying presuppositions of popular government.” 89
Stunned, leading constitutional scholar Herbert Wechsler responded directly to Hand's critique of judicial review during a spring
address at Harvard Law School in 1959. 90 To Wechsler's mind, the Court had not been wrong to go down the road of liberal
reform, but had done so in an inappropriate, “ad hoc” manner. 91 Of particular concern was Brown's reliance on social science
evidence, particularly data on child psychology, that the Court used to bolster its claim that segregation, per se, violated equal
protection by harming black children. 92 “I find it hard to think [that Brown] really turned upon the *358 facts,” declared
Wechsler to a shocked audience at Harvard. 93 What if, he pondered, students were actually “hurt” by integration? 94
The idea that students might be hurt by integration was not something that either Thurgood Marshall or the Warren Court had
considered in 1954, yet cultural frames had shifted to the point that it was on people's minds by 1959, particularly in New York.
Not only had the New York Times provided extensive coverage of violence and crime in desegregated schools in Brooklyn, but
the paper had also covered shocking abuses endured by black students in the American South. Almost immediately after federal
forces left Little Rock, Arkansas in November 1957, for example, the New York Times reported a campaign of cruel harassment
by white students against their black peers that lasted for the remainder of the school year. 95 Instead of psychological healing,
the nine black students found themselves kicked, pushed, showered with food, and, in the case of one unfortunate African
American girl, pushed down a flight of stairs. 96
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Not only were the above instances of racial harm all reported in the New York Times, where Herbert Wechsler and others could
read about them, but one of the Little Rock Nine actually abandoned Little Rock for New York City in January 1958. 97 In a
well-publicized move, Minnijean Brown left Central High School and accepted a scholarship to attend the private New Lincoln
School on West 110th Street in Manhattan, claiming it unlikely that her eight black peers could withstand much more abuse
from their white counterparts. 98
Though Wechsler did not mention Little Rock directly in his Harvard address, Minnijean Brown's flight helps contextualize his
observation that integration might, in some cases, have “hurt” blacks. 99 To his mind, this meant that Brown's equal protection
argument was itself unstable, a complaint that he chose to articulate in terms of the ruling's lack of neutrality. Though many
took Wechsler's words to be an overly-legalist approach to constitutional reasoning, the kind of *359 argument that someone
who knew nothing about actual racial conditions in the South might make, Wechsler had in fact been involved in southern racial
politics since the 1930s. 100 As a young attorney, he had worked for three years to free black communist, Angelo Herndon,
from a chain gang in Georgia, ultimately writing the bulk of Herndon's briefs before the Supreme Court between 1934 and
1937. 101 In 1941, Wechsler struck a crippling blow to white supremacy in the South by arguing United States v. Classic, 102
a case that declared Louisiana's white primary a form of state action thereby paving the way for Thurgood Marshall's death
blow to the white primary in Smith v. Allwright. 103
Rather than an outsider who understood little about racial issues in the South, Wechsler had in fact been deeply involved in those
issues for almost three decades. 104 However, the cases that he argued tended to be aligned much more closely with national
and even regional, cultural frames than Brown-particularly after the moral panic over delinquency. How so? In Herndon,
Wechsler had been careful to frame his appeal in terms of First Amendment free speech, not black rights or communism. 105
This represented a type of frame bridging, an effort to link the legal argument of a relatively unpopular client to a cause that
enjoyed relatively widespread support, indeed what some identified as a ” ‘bedrock principle’ “ of American democracy, the
First Amendment. 106 Similarly, even though United States v. Classic had huge implications for black voting rights in the Deep
South, a fact that Wechsler was well aware of when he took the case, he refused to even mention the disfranchisement of black
people in his Supreme Court briefs, focusing instead on whether the level of state involvement in Louisiana's white primary
was sufficient to make it a form of state action. 107
Once Wechsler's past involvement in civil rights is recovered, his plea for neutral principles emerges, not as an insensitive bid
for legal formalism, but as a call for more diligent frame alignment, a more strategic attention to how the Court framed its civil
rights rulings so as to maximize cultural synergy and minimize popular backlash. Not only had this become an issue with Brown,
but the Court had decided *360 a string of cases based on Brown that had nothing to do with the psychological development
of children, cases that bothered Wechsler because they extended the child-centered harm argument to adult contexts, including
public buses, parks, and golf courses. 108 “What shall we think,” he queried, “of the Court's extension of [Brown] to other
public facilities, such as public transportation, parks, golf courses, bath houses, and beaches, which no one is obliged to useall by per curiam decisions?” 109
Dubious of the Supreme Court's reasoning in civil rights cases beginning with Brown, Wechsler offered to formulate his own
reasoning on civil rights in a libel case filed by Montgomery Police Commissioner L.B. Sullivan against the New York Times
for running a full page ad criticizing Montgomery's handling of sit-in demonstrations in 1960. 110 Though different from most of
the lawsuits that arose out of the sit-ins-almost all of which focused on whether evicting demonstrators from private restaurants
was a form of state action-New York Times v. Sullivan focused on whether the South could keep the national media out of the
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region by way of frivolous libel suits. 111 This question touched directly on the larger issue of cultural framing, for without the
media, direct action protest would arguably never have been able to reach national audiences, or have a national effect. 112
Aware that the fate of direct action protest might be in jeopardy, Wechsler engaged in a deft example of frame bridging, linking
civil rights in the American South to the nationally popular First Amendment right to free speech. 113 Specifically, he likened
Alabama's libel law to the widely unpopular Sedition Act of 1798, a measure so repressive that it had gone down in American
history as an example of government oppression. 114 Gambling that most Americans would not approve of an overly aggressive
libel doctrine that allowed for the curtailment of speech when the speaker did not have actual malice, Wechsler convinced the
Supreme Court to rule in favor of the Times and impose a more onerous burden on libel cases in the future, an *361 argument
that led many news organizations, including the Times, to send reporters back into Dixie. 115
Though rarely compared to Brown, New York Times v. Sullivan was similar in that the lead attorneys in both cases, Thurgood
Marshall and Herbert Wechsler, both tried to align their legal claims with prevailing cultural norms. In Marshall's case, this
meant aligning civil rights with national concern for youth, while in Wechsler's, it meant aligning civil rights with national
support for the First Amendment. Both succeeded at the Supreme Court level, yet Brown encountered considerable resistance,
arguably failing to do what it set out to accomplish by 1959. New York Times v. Sullivan, by contrast, helped the movement
win federal legislation that removed obstacles to black voting rights. 116
In the next section, we will see how proponents of gun rights learned from the movement, carefully aligning their own legal
claims with prevailing cultural trends. Though culture, as Marshall learned, can be hard to read, Second Amendment advocates,
like the National Rifle Association (NRA) began to successfully align their interests with popular concerns in the 1970s,
arguably even shaping those concerns by building popular support for sportsmanship and self-defense. This process of frame
alignment reinforces the notion that lawyers, like social movement actors, must frame their agendas in terms that most people
can support and understand.
III. The Second Amendment and Cultural Frames
Though generally not associated with the civil rights movement, the American gun lobby proved an astute imitator of movement
tactics, arguably even emerging like a phoenix out of the movement's ashes. Prior to the 1960s, for example, organizations
like the NRA had little interest in lobbying to curb federal gun controls. Founded in 1871, the NRA began its career primarily
interested in target-shooting, not defending the right to bear arms. In fact, from 1871 to 1977 the organization's main agenda
was promoting marksmanship and safety. 117 Organized by Civil War veterans disgruntled with the Union Army's lack of
emphasis on “target practice,” a skill the military believed would instill a negative “sense of individualism among the soldiers,”
the NRA built a “state-of-the-art rifle range” at Creedmoor, New York to train soldiers, primarily National Guardsmen, in
*362 marksmanship. 118 The NRA also began holding shooting competitions, including an international competition that
drew almost 8000 spectators to Creedmoor in 1874. 119 From 1874 to 1977, “marksmanship training” and “firearms safety”
remained the primary concerns of the NRA while lobbying formed only a “minor part” of its institutional mission. 120
Evidence of the NRA's initial lack of political interest in gun control emerged in 1934, when Congress enacted a sweeping
National Firearms Act regulating certain types of machine guns, short-barreled shotguns, and silencers. 121 While a strict
textualist reading of the Second Amendment might have justified challenging such a law, the NRA refrained. 122 Part of this
was due to the negative connotations of the guns themselves, all of which were identified by the Court as gangster weapons,
made famous during a frightening wave of organized gang violence during the first half of the 1930s. 123
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By contrast, the 1934 Act did not regulate military-style weapons, heavier arms that the National Guardsmen training at
Creedmoor might use. 124 In a 1939 case challenging the Act, the Supreme Court of the United States declared, ironically, that
the Second Amendment only protected military-style weapons from federal regulation, not gangster weapons, hunting rifles,
or any other type of small arm that did not have an obvious military use. 125 To support this view, the Court cited the text of
the Second Amendment itself, which rationalized limits on federal gun regulations because of the need for ” ‘well regulated’
“ state militias to the ” ‘security of a free State.’ “ 126
Precisely because the NRA was in the business of training state militias, it did not rankle at regulations controlling nonmilitia
style guns. This apolitical stance changed, however, when the federal government moved to control military-style weapons in
1968. That year, Congress enacted a sweeping Gun Control Act (GCA), spurred by outrage over the assassinations of Robert F.
Kennedy and Martin *363 Luther King, Jr. 127 While older NRA leaders tended to support the legislation, which recodified
the National Firearms Act of 1934, a younger cadre of activist-oriented “hard-liners” viewed the GCA to be the beginning of
a larger, liberal assault on gun rights generally in the United States. 128 Led by a former Border Patrol officer named Harlon
Carter, these “Young Turks” voted proponents of the GCA out of power in 1977 and quickly made lobbying against gun
regulations one of the primary functions of the association. 129
For constitutional scholar Reva Siegel, Harlon's insurgents mounted a relatively straightforward campaign of “popular
constitionalism” aimed at upholding an individual, not collective right to bear arms. 130 To do this, they joined an “emergent
New Right movement” that also “sought restoration of the Constitution in matters concerning criminal defendants' rights, gun
control, and other ‘social issues,’ including prayer, busing, and abortion.” 131 While Siegel might have identified this move as
a type of frame bridging, she avoids any discussion of frame alignment in her analysis, focusing instead on the insurgents' use
of direct mail techniques to push the NRA to the right and, ultimately, contribute to a larger transformation of “the Republican
Party platform.” 132 A crucial part of this platform, argues Siegel, was the appointment of Republican judges willing to frame
conservative legal causes, like the individual right to bear arms, in terms of ” ‘original intent,’ “ a skillful way of “changing the
Constitution” by avoiding the amendment process and calling instead for the restoration of first principles. 133
While all of this is true, Siegel's reluctance to focus on frame alignment obfuscates the level of strategy that went into the
NRA's litigation campaigns. For example, despite the fact that the NRA vigorously pursued an individual right to bear arms, as
Siegel argues, it never challenged the 1968 Gun Control Act in court. 134 Much like civil rights attorneys Thurgood Marshall
and Herbert Wechsler, NRA lawyers carefully aligned their legal claims with cultural positions *364 that they believed most
Americans would condone at the time, positions that did not include combat weapons. This meant that widespread, private
ownership of military-style weapons-AK-47s, M-16s, and so on-never made it onto the NRA's litigation agenda, even though
past Supreme Court rulings like Miller indicated that these were precisely the type of weapons that the Second Amendment
did indeed protect. 135
Why did the NRA, a diligent if not aggressive lobbying group, not promote deregulating military-style weapons through court
cases? 136 Perhaps the best answer is that American attitudes towards military-style weapons-their cultural frame, if you willevolved considerably after 1939 away from images of responsible National Guardsmen keeping guns safely in their homes,
to radical extremists plotting government overthrow. To take just a few examples, not long after the GCA's passage in 1968,
stories began to break of people arrested under the law, many with ties to right-wing extremism and organized crime. On June 5,
1969, for example, Alcohol, Tobacco, and Firearms agents arrested Arthur Needles, a supplier to right wing groups and the mob
in Suffolk County, New York, seizing “dynamite bombs, machine guns, and dozens of rifles, shotguns, and handguns.” 137 On
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July 19, 1969, federal agents arrested “Robert Bolivar DePugh, founder of the ultra-right Minutemen,” a covert organization
dedicated to “stockpiling weapons” in preparation for “a Communist take-over of all governmental machinery in the United
States.” 138 More raids followed of Nazis, the Ku Klux Klan, the Black Panthers, and other groups, none of whom enjoyed
majority support. 139
*365 In 1995, popular opposition to extremist militias exploded when Timothy McVeigh, a disgruntled ex-soldier with militia
ties bombed a federal building in Oklahoma City. 140 While Siegel notes that the NRA took an overtly public stand against
militias at this point, even hiring Charlton Heston to soften the organization's image, she does not invoke the analytic of frame
alignment to explain the organization's actions. 141 Yet, such an analytic shows how the NRA engaged in a strategy similar
to the one that civil rights lawyers first attempted in Brown and then again in Sullivan, namely aligning legal claims with
prevailing cultural trends, in this instance frames that opposed militias but supported self-defense. 142 Indications of such a
trend emerged early. In 1969, Republican Senator Roman Hruska of Nebraska declared that handgun regulations should be
left to the states. 143 “[U]rban unrest” contributed to this sentiment, as riots “spurred sales of guns” for use in self-defense. 144
When Chicago Congressman Abner Mikva proposed a ban on handguns in Illinois in 1971, he confronted significant opposition
in the state house and senate. 145 Indiana Senator Birch Bayh encountered similar problems in 1972 when he tried to increase
regulation of handguns following an assassination attempt on Alabama Governor George Wallace. 146 Both Senators Jacob K.
Javits of New York and Charles H. Percy of Illinois confronted problems when they tried to introduce a federal ban on handguns
in “areas where violent crime is 20 per cent or more above the national average.” 147 Though local urban populations tended
to favor such bans, national majorities proved skeptical. 148
*366 Political support also began to build for sportsmen. In October 1969, Massachusetts Senator Edward M. Kennedy failed
to block an exception to the 1968 Gun Control Act exempting certain types of shotgun shells popular among hunters from
licensing requirements. 149 Taking this as a sign that sportsmen should be exempted, Indiana Senator Birch Bayh attempted
to push through a more restrictive federal gun control law, making sure to exempt weapons used for ” ‘sporting purposes,’
“ but failed. 150 Such political trends sent clear signals to the NRA. Regardless of the Second Amendment's text and the
Supreme Court's ruling in United States v. Miller, frame alignment placed the greatest chance of success on hunting weapons
and handguns. 151
By the 1990s, rights-based Second Amendment claims were joined by another argument, one that countered historians who
challenged the idea that the Second Amendment could be understood outside the militia context. Specifically, NRA advocates
fleshed out the dual position that not only was the right to bear arms an individual constitutional right, but also that the right
to bear arms in self-defense was an even greater, absolute right worthy of constitutional protection independent of the Second
Amendment. 152 For example, NRA official Wayne LaPierre argued in 1994 that the “use of arms for self-defense” was a
right that derived from natural law itself, predating the founding. 153 One year later, Tanya Metaksa, executive director for
the NRA's Institute for Legislative Action, maintained that self defense was nothing less than “the primary civil right” without
which “there are no rights.” 154
Though Siegel does not mention it, Metaksa and Pierre's attempt to frame self-defense as a civil right represented yet another
example of cultural frame alignment by the NRA. Conscious of popular opposition to militia related violence like the Oklahoma
City bombing, both Metaksa and Pierre shored up the NRA's legal position by aligning their legal claims with the civil rights
tradition of the 1960s, even *367 declaring the NRA “America's oldest civil rights organization,” a not-so-subtle allusion to
the 1909 founding of the NAACP. 155
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Perhaps because she does not focus on frame alignment, Siegel misses the reinvention of self-defense as a civil right. Yet,
this is arguably one of the more interesting aspects of the NRA litigation story. Indeed, the NRA and other gun groups would
stress ties to the civil rights movement even more explicitly in the litigation challenging Washington, D.C.'s handgun ban in
2008. That year, the NRA joined other social movement actors interested in gun rights, including the libertarian Institute for
Justice, Washington attorney Alan Gura, a majority of senators and representatives in the United States Congress, and, perhaps
surprisingly, the Congress of Racial Equality, or CORE. 156 Founded in 1942, “CORE spent over two decades advocating nonviolent protest as a means of dismantling racial segregation in the American South.” 157 In 1947, CORE targeted segregation
on interstate carriers by sending integrated buses through the Deep South, an endeavor that it repeated in 1961 only to find its
“freedom riders” targeted by white racists in places like Anniston and Montgomery, Alabama. 158
Precisely because CORE activists found themselves confronting repeated instances of white violence, the organization gradually
grew weary of nonviolence as a political strategy, particularly nonviolent refusals to engage in armed self-defense. 159 Indeed,
by the close of 1966, CORE president Floyd McKissick joined black activists like Stokely Carmichael, who rejected Thurgood
Marshall's early push for integration, and opted instead for “Black Power.” 160 McKissick even went so far as to call nonviolence
“a dying philosophy.” 161
Convinced that nonviolence had become ineffectual and that black equality hinged on gun ownership and armed self-defense,
CORE focused its Heller brief on the Fourteenth Amendment, arguing that many of the amendment's framers intended that the
Due Process and Privileges and Immunities Clauses be used to protect the rights of freed slaves to own guns. 162 Though the
NRA resisted such an argument, Alan Gura, the Institute for Justice, and a majority of United States senators and congressmen
agreed, marking a significant effort *368 to align the legal frame of private gun ownership with the cultural frame of black
rights. 163
The Supreme Court, perhaps surprisingly, sanctioned this reasoning, adopting the originalist claim that the Fourteenth
Amendment was designed to protect black gun ownership, even though the Amendment itself did not technically apply to the
District of Columbia. 164 Why the Court cited such evidence was not clear as a matter of law, a point that Siegel notes. 165 Yet,
the Court's decision to cite the Fourteenth Amendment argument may ultimately have had less to do with legal doctrine than
frame alignment. Because CORE linked gun ownership to black rights, the citation to black history might have appealed to the
Court as an olive branch to the black community of D.C. that had, after all, voted for the gun ban. Whether this was true or not,
prominent African Americans, including future president Barack Obama, endorsed the Supreme Court's opinion in Heller. 166
Immediately following the Supreme Court's ruling against D.C., Alan Gura filed a follow-up case in the Northern District of
Illinois, arguing that Chicago's handgun ban, dating to 1982, violated the Second Amendment. Parallel suits followed, including
two suits by the NRA, one against the Village of Oak Park, Illinois and the other against the City of Chicago. 167
Both the NRA and Gura argued, as in Heller, that the Fourteenth Amendment was intended to protect freed people of color in the
post-Civil War South by protecting their right to bear arms against confiscation by Klan-governed southern states. 168 However,
the NRA stressed the Amendment's Due Process Clause, while Gura dedicated a majority of his brief to the Amendment's
privileges and immunities clause. 169 This divergence, though subtle, represented its own form of frame alignment. By aligning
his brief with privileges and immunities, Gura hoped to gain the support of legal academics and liberals who opposed the
Supreme Court's narrow curtailment of the clause in the Reconstruction era Slaughterhouse Cases. He, agreed that an expanded
reading of the clause might be used not only to help gun owners, but also to help other, more liberal interests, not least of *369
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them free speech, abortion, and, perhaps ironically given Perry v. Schwarzenegger's challenge to Proposition 8 in California, gay
rights. 170 Gura's decision to focus on privileges and immunities, in other words, represented a classic case of frame bridging,
by connecting the cause of gun owners to a larger panoply of liberal positions.
Conversely, the NRA pursued a more conservative, less liberal line of argument, pushing the Court to incorporate the Second
Amendment through the Due Process Clause of the Fourteenth Amendment. 171 While this position also required the overruling
of precedent-the Supreme Court's decision in United States v. Cruickshank 172 -it held less interest for law scholars and liberals.
Of course, this represented its own form of frame alignment, a bid to keep conservative support for gun rights high, including
conservative support on the Supreme Court. During oral argument, for example, Justice Scalia endorsed the idea of incorporating
the Second Amendment to the states through the Due Process Clause of the Fourteenth Amendment, but objected to the
privileges and immunities argument, the so called “darling of the professoriate.” 173 Justice Alito agreed, making it clear in
the Court's majority opinion that the Privileges and Immunities Clause would be untouched, while holding that the Second
Amendment should in fact be incorporated to the states because “the right to keep and bear arms was highly valued for purposes
of self-defense.” 174
The Court's emphasis on self-defense in McDonald was revealing, an indication that the gun lobby's frame alignment strategies
had worked. Despite differences in litigation strategy, both the NRA and Alan Gura had agreed on one thing, litigating against
handgun bans as infringements on the right to self-defense represented a more strategic alignment of legal and cultural frames
than trying to overturn more stringent regulations, like the GCA's limits on automatic weapons. Though the Supreme Court had
once maintained that military-style weapons were the only weapons protected by the Second Amendment, the NRA, and other
proponents of gun rights like Gura, realized that such a position had become politically and culturally untenable by the close of
the twentieth century. Indeed, while the NRA did indicate support for a bill tightening the definition of machine guns in 2007,
its litigation team steered clear of an outright *370 challenge, indicating that the lobby had learned the value of prudent frame
alignment. 175 The fact that both the NRA and Gura made black rights a cornerstone of their Second Amendment arguments
in Heller and McDonald indicates that at least some of this strategy might have derived from earlier lessons learned by the
civil rights movement. 176
In the next section, we will see how lessons from the civil rights movement shaped not only gun litigation, but litigation on
behalf of lesbian, gay, and bisexual (LGB) social movement groups as well. As with the Second Amendment, LGB litigators,
like Lambda Legal, worked diligently to align legal claims with cultural frames, achieving generally positive results. However,
the decision by conservative lawyer Ted Olson to bring a legal challenge to California's same-sex marriage ban indicates a
radical departure from the frame alignment lessons that the civil rights era has to teach.
IV. Same-Sex Marriage and Cultural Frames
Though generally not associated with guns, another area of constitutional law heavily implicated in the alignment of legal and
cultural frames is gay rights, an issue that, not coincidentally, can also trace its lineage to the end of the civil rights era. Prior to
the 1970s, for example, most states criminalized sexual conduct between persons of the same sex, and no organized movement
existed to lobby for legal protections on their behalf. 177 This began to change in the 1960s, however, when the American
Law Institute recommended the decriminalization of sodomy and the American Civil Liberties Union amended its policy on
homosexuality, agreeing to represent gay plaintiffs in discrimination suits. 178 Expressly gay litigation groups *371 formed
not long thereafter, including the Lambda Legal Defense Fund in 1972, the Gay Rights Advocates (GRA) in 1977, and the Gay
and Lesbian Advocates and Defenders (GLAD) in 1978. 179
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While gay litigation groups like Lambda factor into most legal histories of LGB social movements, a dramatically different
level of granularity emerges in the work of socio-legal scholars who focus on cultural frame alignment rather than in the work
of law scholars who simply focus on mobilization, counter-mobilization, and “rights discourse.” 180 Leading LGB litigation
scholar William Eskridge provides an example. Following the traditional legal perspective that “social movements literature
does not adequately reflect the importance of law,” Eskridge cites relatively few social movement studies in his work. 181
Yet, as this section will show, this approach misses important strategic aspects of constitutional litigation surrounding issues
of gay rights, a point best made by comparing the history of gay rights as recounted by Eskridge to the history of gay rights
as recounted by Ellen Andersen, a social movement theorist and political scientist at the cutting edge of merging the study of
constitutional litigation with cultural frame alignment. 182
At first glance, Andersen and Eskridge appear quite similar. Both discuss significant historical events that impacted the
LGB movement, including the 1948 Kinsey Report, the Model Penal Code's decriminalization of sodomy in 1962, and the
Stonewall Riot. 183 Both also discuss the formation of litigation groups like Lambda Legal as well as the broader implications
of conservative reactions to such developments. 184
Yet, Eskridge and Andersen differ in their recovery of the strategic frame alignment that went into LGB litigation decisions.
For example, Eskridge describes the litigation campaign against sodomy laws in the 1970s to be a factor of Supreme Court
privacy rulings, opinions which encouraged groups like the ACLU to challenge state sodomy statutes. 185 By contrast, Andersen
shows how the decision to pursue privacy litigation was not simply a factor of Supreme Court privacy rulings, but a strategic
choice not to pursue more common *372 claims by LGB parents desiring legal custody of their children. 186 Cognizant that
the Supreme Court's privacy jurisprudence aimed to shield heterosexual couples from the state, Lambda made the strategic
decision to attack laws limiting what private couples could do in the privacy of their own homes, including sexual acts that
applied to both heterosexual and homosexual pairs. 187 By contrast, Lambda lawyers deliberately avoided lawsuits that aimed
to extend custody rights to gay parents, reasoning that such a move would lack the kind of general support that a more neutral
push for privacy might achieve. 188 Lambda's strategic decision to downplay custody and emphasize privacy reflected an astute
alignment of the legal frame of gay rights with the cultural frame of heterosexual, middle class privacy interests. 189
Despite privacy's promise, lawsuits challenging sodomy statutes based on a privacy theory confronted their own strategic
challenges, a problem that Andersen identifies but Eskridge occludes. For example, in one of the first suits to challenge a
state sodomy statute, Doe v. Commonwealth's Attorney, the ACLU brought a legal challenge to Virginia's sodomy law in
federal district court in 1973. 190 As Eskridge tells it, the fact that a three-judge panel was assigned to hear the case bore little
significance. “The majority of the three-judge court rejected the ACLU arguments,” writes Eskridge, and “[t]he Supreme Court
summarily affirmed.” 191 To Andersen, however, the ACLU's decision to appeal the ruling of a three-judge panel was a strategic
frame alignment mistake, one that exacerbated the challenge of overturning sodomy laws in court. 192 How so? Because of the
three-judge panel, the ACLU was able to exploit a rare procedural provision that allowed for direct, automatic appeal to the
Supreme Court. 193 Under this rule, the Supreme Court could not choose to deny certiorari but had to review the case, leading
Andersen to conclude that the ACLU actually forced a decision that may have been better left for some later date, when the
legal and cultural frames regarding sodomy laws were more closely aligned. 194 As it was, however, the Supreme Court *373
ended up affirming a district court decision holding that privacy protections did not extend to homosexual couples, a ruling
that arguably had some precedential weight. 195 Though Eskridge is correct that the Supreme Court affirmed Doe, his account
misses a potentially important lesson for both social movement scholars and litigators, namely the question of how structuring
appeals might factor into cultural frame alignment.
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More occlusions emerge in Eskridge's account of the events that led from Doe to Bowers v. Hardwick, decided in 1986. 196
While Eskridge acknowledges that state trends toward overturning sodomy laws increased from 1976-the year Doe was decidedto 1982, the year Hardwick was filed, he omits at least two reasons why LGB lawyers felt that a federal challenge to sodomy
statutes made strategic sense. First, Eskridge neglects to mention Ronald Reagan's presidential victory in 1980, which according
to Andersen caused LGB litigators to accelerate an appeal before more conservative justices could be appointed to the court. 197
Second, Eskridge avoids discussing a Texas district court's ruling in Baker v. Wade, 198 a case similar to Bowers decided in
1982, the same year that Bowers was filed. 199 In Baker, the plaintiff presented evidence suggesting that social and even medical
attitudes towards homosexuals were changing, essentially altering the structure of legal opportunity for gay rights claims. 200
For example, the plaintiffs presented evidence that the American Psychiatric Association had removed homosexuality from
its list of mental disorders; that homosexuality had no statistical correlation to higher crime; and that homosexuality was not
simply a matter of moral choice. 201 Much of this testimony was delivered by experts, indicating that views of homosexuality
were changing rapidly, at least among elites. 202
Ironically, just as elites seemed to be softening their attitudes towards homosexuality, more conservative rustlings could
be heard coming from the base, leading to the third omission that Eskridge leaves out of his analysis. 203 Specifically, the
election of Ronald Reagan *374 in 1980 tolled an ominous bell for gay rights activists, not because Reagan personally made
homosexuality a campaign issue, but because much of his support came from moral reactionaries associated with the Christian
Right. 204 Though Reagan never identified himself as an evangelical, his victory raised questions for gay litigants, convincing
some that assaults on sodomy laws should wait, while persuading others that legal attacks should commence forthwith before
Reagan could appoint moral conservatives to the federal courts. 205 Ambivalence ensued. When a legal group called the Gay
Rights Advocates, or GRA, challenged an Oklahoma law making ” ‘public homosexual conduct or activity’ “ grounds for firing
school teachers, Lambda counseled against pursuing the matter out of fear that a loss at the circuit level might preclude future
gay rights claims. 206 Andersen covers this reluctance, showing how it illustrates conscious frame alignment, but Eskridge
ignores it, even indicating that Lambda was in favor of the litigation. 207
By omitting strategic considerations like Lambda's reluctance to participate in the Oklahoma case, Eskridge fails to fully explain
why Bowers v. Hardwick was filed when it was. 208 This, in turn, precludes a larger understanding of how strategic frame
alignment works. As we have seen, reasonable choices can misfire in the long run, but still constitute reasonable choices at the
time, arguably like Thurgood Marshall's decision to focus on child psychology in Brown. 209
Conversely, lawyers who appear to be making unreasonable choices may have a deeper theory guiding their litigation decisions,
as did Lambda in Bowers. For example, Eskridge himself notes that lawyers for the plaintiff in Bowers focused on Lewis
F. Powell, Jr., a Nixon appointee who was socially conservative yet favored privacy protections of abortion. 210 Andersen
indicates this emphasis was even more strategic, influenced in part by Powell's vote to strike down a New York law limiting
the distribution of contraceptives in 1977, again on privacy grounds. 211 Powell's recurring interest in privacy led Lambda to
suspect that he may have been prone to expanding pri-vacy protections even more, including to consensual behavior between
*375 same-sex adults. 212 Yet, even though the legal frame of gay rights and the cultural frame of privacy seemed like they
might line up, Powell proved unwilling. He conceded that if Hardwick had been incarcerated he might have ruled in his favor,
reasoning that it was a violation of the Eighth Amendment to punish someone as severely for sodomy as for “aggravated
battery . . . first-degree arson . . . and robbery,” but Powell ultimately found that because Georgia had dropped its prosecution
of Hardwick, he suffered no real harm. 213
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Though Lewis Powell proved to be the critical vote against Michael Hardwick, larger historical forces contributed to the
decision's outcome as well. One, clearly, was the election of Ronald Reagan in 1980, which placed Sandra Day O'Connor on the
Court, giving Georgia a critical conservative vote in what would become a five-to-four decision. 214 Another factor was a shift
in the cultural frame of gay rights due to AIDS. 215 First recognized as a health crisis in the mid-1980s, the emergence of AIDS
engendered a backlash in many states against homosexuality on the grounds that gays jeopardized public health. 216 In 1986,
for example, Missouri's Supreme Court upheld the state's sodomy law not on moral grounds, but out of a concern for public
health, holding that “the general promiscuity characteristic of the homosexual lifestyle made such acts among homosexuals
particularly deserving of regulation.” 217 Here, health concerns over AIDS helped to explain how the state could rationalize the
decriminalization of oral and anal sex between people of the opposite sex, meanwhile retaining criminal sanctions for samesex couples. 218
Health concerns over AIDS, conservative appointments to the federal judiciary, and Bowers v. Hardwick all reduced the
structure of legal opportunities open to gay rights advocates in the 1980s, marking a shift in the nation's cultural frame against
homosexual litigants. Yet, Bowers arguably had a positive impact as well, one that Andersen documents but Eskridge largely
ignores. To Eskridge, Bowers' main contribution was pedagogical, a point he makes by noting that the ruling “transformed the
constitutional law curriculum of *376 Yale and every other law school in America.” 219 To Andersen, by contrast, Bowers's
primary contribution was political: together with the crisis over AIDS, argues Andersen, Bowers helped encourage social
movement organizing. 220 Rather than accept the Supreme Court's opinion, LGB activists rallied against it, holding a March on
Washington for Lesbian and Gay Rights in 1987-a clear parallel to the civil rights movement-and tripling donations to Lambda
from 1985 to 1986. 221
While Andersen arguably does a better job of capturing the link between constitutional litigation and social movement
organizing than Eskridge, both Eskridge and Andersen show how LGB mobilization polarized electoral politics in states across
the country, pitting urban cosmopolitans against rural evangelicals. 222 “Between 1972 and 1992,” observes Eskridge, LGB
activists “persuaded dozens of city and county councils to adopt ordinances prohibiting employers, public accommodations,
and landlords from discriminating against employees, tenants, and patrons on the basis of their sexual orientation.” 223 Though
moral conservatives tried to fight such initiatives at the local level, they tended to be out-numbered, leading to statewide,
conservative coalitions that sought to overturn localized gay protections through state referenda. 224
When Colorado enacted such a referendum in 1992, it triggered an automatic LGB response. 225 Rather than engage in the
political spade-work necessary to transform majority opinion, Lambda Legal and others made a direct appeal to the courts,
gambling that the legal frame of equal protection, the same constitutional provision used in Brown, would sway the federal
judiciary. 226 Lambda even mimicked the NAACP's strategy in Brown by introducing sociological data showing that “LGB
people posed neither physical nor psychological harm to children.” 227 Though such evidence played less of a role in Romer v.
Evans 228 than it did in Brown, the end result proved the *377 same: Lamba's appeal inspired the Court to overturn Amendment
2 in 1996. 229
For Eskridge, Romer represented “that rare Supreme Court decision that successfully anticipated changes in public opinion
before they were clear to other officials.” 230 Yet, the question of just how far public opinion would go in the direction of gay
rights remained uncertain. Attuned to cultural frames, Andersen provided a more conservative analysis, positing that Romer
represented a combination of legal frames undergirding the case particularly equal protection jurisprudence, and cultural frames,
or liberal values held by legal elites. 231 That Romer represented an elite view, something that Andersen stresses, is important
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to note for at least two reasons. One, it illustrates the complexity of cultural frames, indicating how diverging opinions, beliefs,
and moral frameworks can exist in the same culture at the same time, making it hard to determine whether certain legal frames
will align or not. Two, it underscores the problem of intracultural conflict, or warring values, the victor of which can prove
determinative of legal results.
Out of all the Justices on the Court at the time Romer was decided, only Antonin Scalia identified the cultural tensions at
stake in the decision. To his mind, the Court had interfered in nothing less than a “Kulturkampf” or cultural war between
secular homophiles and “modest” Coloradans interested in preserving “traditional sexual mores.” 232 While one way to
interpret this was that Scalia endorsed “a state-sponsored campaign to force a minority into conformity,” another possible
interpretation, discredited by Eskridge, was that Scalia really meant a “culture clash between fundamentalists and progay
nomoi,” or interests. 233
Pursuant to this view, progay and antigay activists were literally engaged in a battle for hearts and minds, a cultural conflict with
direct political results, something that cultural theorist Stuart Hall called a “war of position.” 234 However, neither Andersen
nor Eskridge invoke Hall's analytic, limiting the extent to which either successfully convey the role that culture played in the
post-Romer era. For example, even though Andersen mentions that fears of AIDS declined in the 1980s, she fails to mention
obvious cultural flashpoints like Ryan White, who contracted AIDS from a blood transfusion when he was fourteen years old
and quickly became a national celebrity *378 after fighting local opposition to enroll in public school in Kokomo, Indiana
in 1985. 235 Andersen also omits mention of National Basketball Association star Magic Johnson who contracted the disease
through heterosexual sex and proved, to many, that one could live with the condition. 236 Such figures helped “pierce myths”
about AIDS, convincing average voters that the disease was not simply a homosexual threat. 237
The emergence of respectable victims like Magic Johnson and Ryan White in the 1980s prefigured a much more aggressive
campaign to normalize homosexuality undertaken, perhaps ironically, by corporate interests involved in media and marketing
in the 1990s. 238 As Eskridge-who actually cites more pop culture references than Andersen-puts it, “homosexuality began to
saturate public culture, with more positive and complex depictions of gay people showing up in the movies, on Broadway, in
popular stories and novels, and even on television,” presumably all with profitable results. 239 For example, Eskridge cites Will
and Grace, a National Broadcasting Corporation (NBC) sitcom featuring Debra Messing and Eric McCormack as a straight
woman and gay man sharing an apartment. 240 While critics complained that the program limited gay roles to instances where
“sexually viable” gay males were “safely (albeit chastely) paired with a heterosexual woman,” the series, which premiered in
1998 went on to draw an average weekly audience of almost seventeen million viewers, making it the “third-most watched
sitcom on network television” in 2002. 241
Perhaps just as groundbreaking was Ellen, another popular sitcom that predated Will and Grace by a year, and focused on
comedian Ellen DeGeneres. 242 Though lesbian, DeGeneres did not make her sexual preference clear until after building a
dedicated viewing audience, at which point the show's writers consciously devised a sympathetic coming-out moment, when
Ellen declared offhandedly at an airport that she was, in fact, gay. 243 Though controversial, Ellen's *379 ratings remained
high, making her the first “avowedly gay leading character in television history.” 244
Perhaps even more importantly, Ellen's advertisers stayed. 245 Once pioneering progay business models like Ellen succeeded,
corporations felt more comfortable reaching out more openly to gay consumers, a market demographic that some estimated to
be worth over $400 billion. 246 To take just one example, in 1998, the same year that Will & Grace premiered, Levi Strauss
& Co. embarked on an “ambitious marketing campaign aimed at gay men and lesbians,” in the hopes that it might “reverse
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flagging sales” by appealing to “trend-setting consumers.” 247 Other companies followed, “aiming sales pitches at homosexuals
for products from cars to computers.” 248
Such shifts in consumer culture are not mentioned by Andersen or Eskridge, but help explain why Lambda decided to revisit
the Court's position on state sodomy laws in 1998, over ten years after Bowers. 249 Also, a string of victories against sodomy
statutes at the state level, together with a string of legislative repeals of sodomy laws, which Andersen and Eskridge do mention,
all indicated that cultural frames regarding sodomy were veering in the direction of LGB interests. 250 Sensing opportunity,
Lambda attorneys challenged the arrest of a gay man for sodomy in Houston, Texas in 1998, arguing that the state sodomy
statute violated both equal protection and privacy. 251
In a cautionary 2003 ruling, Justice Anthony Kennedy marshaled a majority declaring that the Texas law violated privacy, but
not equal protection. 252 Though some took this to be a categorical victory for LGB interests, both Eskridge and Andersen
picked up on the mixed signals, namely that while some cultural progress in the direction of gay rights had been achieved,
more aggressive initiatives on *380 behalf of LGB interests were unlikely to prevail. 253 To Eskridge, Lawrence indicated
“a confluence of opinion” between “sexual pro-choice liberals, . . . relationals who understood that gay people formed families
and committed unions, and . . . pragmatic traditionalists who believed the legal line should be drawn at gay marriage rather than
homosexual criminality.” 254 To Andersen, the ruling reflected a simple matter of frame alignment. 255
While both analytical descriptions were arguably correct, Andersen's was less idiosyncratic. Rather than invoke arcane terms
like “relationals” and “pragmatic traditionalists” she made the simple, straightforward case that cultural frames had evolved
since Bowers, but not as far as LGB activists might have liked. Based on her analysis of Lawrence, one could deduce that
moves in the direction of more outwardly gay causes like same-sex marriage were likely to fail. Even same-sex marriage cases
seemed to suggest as much. As Andersen herself illustrates, two same-sex plaintiffs in Alaska sued the state for marriage
licenses in 1998, the same year that Lawrence was filed, only to precipitate a constitutional backlash as heterosexual voters
approved an amendment restricting marriage to persons of the opposite sex, indicating cultural frames were resistant to samesex marriage. 256 Meanwhile, two same-sex plaintiffs in Hawaii met similar resistance as voters amended the state constitution
to prohibit same-sex marriage there as well. 257 By 2008, twenty-nine states had enacted bans on gay matrimony. 258
While anyone versed in cultural frame alignment might have interpreted the rise of nearly thirty state bans against same-sex
marriage as an indication that cultural frames were closing, this did not occur to constitutional attorney Ted Olson, a wellknown conservative who had argued against affirmative action in federal contracting, assisted in the impeachment of President
Clinton, and served as President George W. Bush's solicitor general. 259 Only ten days after California voters approved a
proposition banning same-sex marriage, Michele Reiner, Hollywood director Robert Reiner's wife, recommended that a friend
contact Olson about the possibility of an appeal. *381 260 After a meeting at Reiner's home, Olson took the case, prompting
speculation that he might have been interested in seeing the appeal lose. 261 While evidence emerged suggesting that this was
not the case, leading gay-rights organizations like Lambda Legal issued a public statement opposing Olson's advocacy, arguing
that the “odds of success” for a Supreme Court ruling were not good, and that the Court “typically does not get too far ahead
of either public opinion or the law in the majority of states.” 262 Instead of rushing to court, Lambda counseled patience, and
attention to the democratic process. 263 “We lost the right to marry in California at the ballot box,” declared the group, and
“[t]hat's where we need to win it back.” 264 While Lambda had once urged a rush to the Court in Bowers, afraid that newly
elected President Ronald Reagan would appoint conservatives to the nation's highest tribunal, Barack Obama's victory in 2008
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indicated that discretion might be a more prudent strategy here, particularly given the likelihood that Obama might appoint
liberals to the Court over the course of his administration. 265
Even William Eskridge, who had not invoked frame alignment in any of his studies of LGB legal campaigns, publicly declared
that he remained “pessimistic” about Olson's chances for success. 266 Paralleling Lambda, Eskridge expressed concern that
since Proposition 8 had been approved, Maine had passed a referendum overturning its same-sex marriage law, meanwhile the
senates of New York and New Jersey, both liberal-leaning, had decided not to allow gay marriage. 267 This meant that, while
a handful of states allowed same-sex couples to marry, a significant majority opposed it. 268
Ignoring obvious trends, Olson began a bizarre frame transformation effort, hoping to use his conservative credentials as
leverage against opponents of same-sex unions, and to use the case, Perry v. Schwarzenegger, as a “teaching opportunity.” 269
Sure that he alone could convince conservative America of the intrinsic morality of gay marriage, Olson cavalierly declared
that “people will listen to us talk *382 about the importance of treating people with dignity and respect,” an unlikely outcome,
particularly given the fact that even better-known conservatives than Olson, including Vice President Dick Cheney, had come
out in favor of gay marriage, with little visible impact on conservative voters. 270 Unswayed, Olson published an article entitled
“The Conservative Case for Gay Marriage,” in Newsweek two days before the beginning of trial, positing that same-sex marriage
advanced “values [that] conservatives prize,” among them “a stable bond between two individuals,” and a commitment to the
“bedrock . . . principle of equality” sanctified by the “noble and elegant” words of the Declaration of Independence. 271
While Ted Olson's cavalier foray into LGB litigation is probably more attributable to vainglory than to the failure of law schools
to train students in cultural frame alignment, his case provides an excellent example of why cultural frames matter. Though
largely ignored by constitutional scholars like Eskridge, Siegel, and Klarman, frame alignment theory provides a uniform
analytic for comparing litigation strategies in separate constitutional areas, and even constitutional times, like the Second
Amendment, same-sex marriage, and civil rights for example. Indeed, once compared to the civil rights litigation in Sullivan and
Brown and the Second Amendment litigation in McDonald and Heller, Olson's approach in Perry v. Schwarzenegger appears to
blithely ignore troubling cultural developments, not least of them a groundswell of conservative, evangelical opposition to the
notion of same-sex marriage. Even if Olson succeeds in his litigation campaign his victory may prove Pyrrhic as conservatives
use Perry to marshal evangelical support against him. By contrast, the NRA's careful strategizing in Heller and McDonald,
neither of which evoked a backlash, emerge a much closer cousin to civil rights cases like New York Times v. Sullivan in
the 1960s.
V. Conclusion
At a symposium on social movements and law reform held at the University of Pennsylvania Law School in 2001, Edward L.
Rubin lamented that legal academics remained “largely oblivious” to work done by social movement scholars in sociology and
political science. 272 Despite Rubin's plea that law scholars “mak[e] contact with the social movements literature,” however,
relatively little has been done in that direction, particularly in regard to the subfield of social movement theory known as frame
alignment. 273 As this Article has *383 attempted to show, leading scholars of civil rights, Second Amendment litigation, and
LGB litigation have all ignored frame alignment theory and in so doing not only missed strategic aspects of their own chosen
areas of inquiry, but also failed to see the degree of similarity across divergent constitutional fields.
To illustrate, Michael J. Klarman's analysis of civil rights activism in the aftermath of Brown posits that a southern backlash to
the opinion created an opportunity that civil rights activists could exploit through the use of direct action protest. 274 Missing
from this analysis, however, is any awareness of the fact that cultural frames surrounding school integration in the 1950s
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became inextricably linked to cultural frames surrounding delinquency, and that northern interest in desegregation and southern
hysteria over desegregation both declined rapidly by the end of the decade. 275 When civil rights activists decided to stage sitin demonstrations in 1960 they did not benefit from a backlash to Brown so much as work to create a new backlash, one that
recast cultural assumptions about race to the nation. 276
Meanwhile, civil rights litigators shifted their frame alignment strategies to match new developments initiated by social
movement actors on the ground. 277 Whereas Thurgood Marshall had once gambled that aligning the legal frame of civil rights
with cultural frames surrounding the psychological development of children, this frame alignment strategy failed to be of any use
to the direct action phase of the civil rights movement. 278 In fact, focusing on the psychological development of children only
aided counterframing moves initiated by segregationists. 279 Consequently, civil rights litigator Herbert Wechsler, a veteran
of aligning civil rights legal claims with larger cultural frames going back to the 1930s, took a new tact, defending northern
media interests who had covered the sit-in demonstrations from southern libel suits. 280 Not attuned to the subtle shifts in frame
alignment being carried out by litigators like Wechsler, Klarman occludes the significance of New York Times v. Sullivan to
the race beat, reinforcing a larger misconception about the central role of culture in civil rights reform, and about the precise
manner in which legal cases facilitated cultural frame alignment and impacted constitutional results. 281
*384 Reva Siegel makes a similar mistake in the Second Amendment context. Just as Klarman reads civil rights strategy in
broad brush strokes, lumping over a decade of strategic decisionmaking into an overly simplistic backlash thesis, so too does
Siegel read Second Amendment litigation as a relatively monolithic process of “popular constitutionalism.” 282 To Siegel, gun
rights groups like the NRA mounted a four-decade campaign to associate the Second Amendment with an individual right to
bear arms, particularly handguns and hunting rifles. 283 Though true in the broad sense, missing from Siegel's analysis is any
sense of the strategic frame alignment choices that groups like the NRA made, particularly their decision not to deregulate the
ownership of automatic weapons. 284 Precisely because cultural frames regarding automatic weapons were relatively negative
following the Gun Control Act of 1968, the NRA's litigation strategy was actually a relatively conservative frame alignment
approach, one that stressed culturally popular notions of sportsmanship and self-defense. 285
Further missing from Siegel's analysis of Second Amendment litigation is the extent to which the NRA went to establish the
right to self-defense, and to some extent the individual right to bear arms as “civil rights.” 286 Again, this strategy represented
an exercise in frame alignment inspired, in large part, by the success of the civil rights movement, a movement that the NRA
consciously sought to identify itself with, both by designating the nation's “oldest” civil rights organization in its Heller brief,
and by stressing the role that gun ownership played in denying African Americans their citizenship rights during both the
Colonial and Reconstruction eras. 287
Finally, a third example of missed opportunities due to avoidance of social movement theory can be found in William Eskridge's
recovery of LGB litigation strategies. 288 When compared to the work of social movement scholars like political scientist
Ellen Andersen, Eskridge's recovery of critical moments in the legal history of the LGB succumbs to the same problems of
overgeneralization that can be found in Siegel and Klarman's work. To take just a few examples, while Eskridge contends that
the decision by organizations like Lambda to focus on privacy concerns in the 1970s were logical outgrowths of the Warren
Court's privacy jurisprudence, missing is any awareness of the strategic frame alignment choices that went into *385 the
LGB movement's privacy based assault on state sodomy laws. 289 As Andersen shows, the most common legal complaints to
emerge in LGB communities in the 1970s did not involve sodomy statutes but custody claims by gay parents. 290 Yet, Lambda
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recognized that the cultural frames surrounding gay parenthood were much more negative than cultural frames surrounding
privacy, hence the frame alignment choice to target sodomy statutes. 291
Once into his discussion of sodomy cases, Eskridge occludes alignment choices that involved appellate procedure as well. 292
In discussing the ACLU's decision to attack Virginia's sodomy statute in 1973, for example, Eskridge fails to note that the
ACLU's decision to appeal a three-judge panel ruling at the federal district level constituted a strategic mistake. 293 While a
normal appeal would have allowed the Supreme Court to consider whether or not to grant certiorari, the three-judge appeal
forced the Supreme Court to hear the case, leading to a negative ruling that, Andersen posits, may have actually have rushed
the issue, generating a negative precedent counterproductive to the legal assault on sodomy laws generally. 294
While other omissions emerge regarding both Bowers and Lawrence, what makes such occlusions particularly baffling is that
Eskridge actually cites Andersen's work for minor issues of fact, meanwhile neglecting her analytic framework. 295 Why?
Presumably more is going on than simply a different set of scholarly concerns, for the concerns that Eskridge pursues would
actually be better served by Andersen's approach. 296 This indicates that Eskridge has been captured by a larger reluctance to
cross disciplinary lines, a reluctance that might explain the general resistance to cultural frame analysis evident not only in his
work, but Siegel and Klarman's as well.
What can be gained from encouraging law scholars to reach across interdisciplinary bounds and engage more fully with social
movement theory? As this Article has tried to illustrate, social movement theory provides an analytic framework that lends itself
to the excavation of strategic choices otherwise submerged in simplistic conceptions of popular constitutionalism and backlash.
Further, sub-fields of social movement theory like frame alignment help to foreground culture in the analysis of constitutional
rights, even as they help to reconcile unnecessarily disparate discourses in law, sociology, and political science. Finally, even
lawyers stand to benefit from cultural *386 frame alignment for it is they who suffer most without at an appropriate theoretical
understanding of when litigation should be initiated, how it should be framed, and ultimately how constitutional law and social
movements intersect.
Footnotes
a1
Assistant Professor, Saint Louis University School of Law, PhD Yale University 2003; JD/MA Duke University 1998; BA Wesleyan
University 1994. I would like to thank Tomiko Brown-Nagin, Ariela Gross, Naomi Mezey, Ariela Dubler, Michael J. Klarman, Risa
Goluboff, Dan Markel, Carol Rose, Eric Miller, Sam Jordan, Chad Flanders, and Jeff Redding for comments on sections of this
piece. I would also like to thank the organizers of “50 Years after the Sit-Ins: Reflecting on the Role of Protest in Social Movements
and Law Reform,” University of Virginia School of Law, Charlottesville, Virginia, January 29, 2010, the Florida State University
College of Law faculty workshop series, and the Law & Humanities Junior Scholar Workshop at Georgetown University Law School,
Washington, D.C., June 2009.
1
See McDonald v. City of Chicago, 130 S. Ct. 3020 (2010); Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW, 2010 WL 3212786
(N.D. Cal. Aug. 16, 2010).
2
Indeed, current battles over guns and same-sex marriage underscore a core aspect of social movement theory that has remained largely
ignored by constitutional scholars, namely the centrality of cultural frames to constitutional law. For a discussion of cultural frames,
or “stock,” see Mayer Zald, Culture, Ideology, and Strategic Framing, in Comparative Perspectives on Social Movements: Political
Opportunities, Mobilizing Structures, and Cultural Framings 261, 266-73 (Doug McAdam, et al. eds., 1996). For a discussion of
frame bridging, or frame alignment processes generally, see David A. Snow, et al., Frame Alignment Processes, Micromobilization,
and Movement Participation, 51 Am. Sociological Rev. 464, 467-76 (1986).
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3
347 U.S. 483 (1954).
4
376 U.S. 254 (1964).
5
This question is particularly timely given signs that lower courts in California are siding with Olsen. See Perry, 2010 WL 3212786.
6
Edward Rubin made a similar claim about the divide between law scholars and social movement theory in a symposium issue of
the Pennsylvania Law Review dedicated to social movements. See Edward L. Rubin, Passing Through the Door: Social Movement
Literature and Legal Scholarship, 150 U. Pa. L. Rev. 1 (2001). For more on frame alignment, see generally Snow, supra note 2 and
Zald, supra note 2, at 266-74.
7
Perhaps the one legal scholar who has written the most about social movements, yet cited the least social movement theory, is
William Eskridge. Though willing to concede that “[l]aw professors have a lot to learn from sociologists and political scientists who
have studied social movements,” Eskridge himself spends virtually no time digesting such lessons, preferring instead to argue that
“social movements literature does not adequately reflect the importance of law.” William N. Eskridge, Jr., Channeling: Identity-Based
Social Movements and Public Law, 150 U. Pa. L. Rev. 419, 419, 420 (2001) [hereinafter Eskridge, Channeling]; see also William
N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L.
Rev. 2062 (2002). Reva Siegel acknowledges the existence of frame alignment in two articles, describing it as a movement's effort
to “represent or reinterpret daily life in terms calculated to move individuals to action.” Reva B. Siegel, Dead or Alive: Originalism
as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008) [hereinafter Siegel, Dead or Alive] (discussing the NRA's
strategy in terms of “popular constitutionalism,” not social movement theory); Reva B. Siegel, Text in Contest: Gender and the
Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 340 (2001) [hereinafter Siegel, Text in Contest]. While
true, this only partially describes the extent of frame alignment as a set of practices by which social movement actors, including
litigators, seek to relate their political goals to the political goals or cultural assumptions of others. Robert C. Post & Reva B. Siegel,
Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale
L.J. 1943, 2000 n.170 (2003). Another study that discusses the interaction between social movements, culture and law-but does not
invoke social movement theory-includes Michael J. Klarman, From Jim Crow to Civil Rights: the Supreme Court and the Struggle
for Racial Equality (2004) (recovering the interrelationship between constitutional law, politics, and the black struggle for racial
equality, without invoking social movement theory).
8
Rubin, supra note 6, at 46-47; see also Eskridge, Channeling, supra note 7, at 420-21.
9
James Laue, still the preeminent theorist of the sit-in movement, defines social movements as “broadly based” protests that have
their origins in the grassroots, not elites. James H. Laue, Direct Action and Desegregation, 1960-1962: Toward A Theory of the
Rationalization of Protest 8-10 (1965). Perhaps the only scholar to truly apply social movement theory to legal actors is political
scientist Ellen Ann Andersen, whose path-breaking study on Lambda Legal provides a theoretical model for this work. See Ellen Ann
Andersen, Out of the Closets & Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (2005). Precisely because
social movement scholars did not traditionally occupy themselves with constitutional law, constitutional scholars have opted for a
separate analytic framework, rooted in terms like mobilization, countermobilization, and popular constitutionalism. See, e.g., Siegel,
Dead or Alive, supra note 7, at 193. A radical example of this position is maintained by Tomiko Brown-Nagin, who argues that
social movements “are generally incompatible with constitutional litigation.” Tomiko Brown-Nagin, Elites, Social Movements, and
the Law: The Case of Affirmative Action 105 Colum. L. Rev. 1436, 1439 (2005).
10
The best studies focus on “constitutional culture,” or the “interactions among members of the polity and between members of the
polity and government officials,” to create constitutional meaning. Reva B. Siegel, Constitutional Culture, Social Movement Conflict
and Constitutional Change: The Case of the de facto ERA, 94 Cal. L. Rev. 1323, 1325 n.6 (2006) [hereinafter Siegel, Constitutional
Culture]; Robert M. Cover, The Supreme Court 1982 Term-Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 11 (1983) (arguing
that “the creation of legal meaning-'jurisgenesis'-takes place always through an essentially cultural medium”); see also Guyora Binder
& Robert Weisberg, Cultural Criticism of Law, 49 Stan. L. Rev. 1149 (1997) (endorsing an ethnographic approach to studying legal
texts). For an examination of law as a cultural form, see Paul W. Kahn, The Cultural Study of Law (1999).
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11
Siegel, Constitutional Culture, supra note 10, at 1325 n.6; see also Jack M. Balkin, How Social Movements Change (or Fail to
Change) the Constitution: The Case of the New Departure, 39 Suffolk U. L. Rev. 27 (2005); Jack M. Balkin, Plessy, Brown, and
Grutter: A Play in Three Acts, 26 Cardozo L. Rev. 1689 (2005); Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social
Movements, 154 U. Pa. L. Rev. 927 (2006); Jack M. Balkin, What Brown Teaches Us About Constitutional Theory, 90 Va. L. Rev.
1537 (2004); Brown-Nagin, supra note 9.
12
Stuart Hall, Gramsci's Relevence for the Study of Race and Ethnicity (1986), reprinted in Stuart Hall: Critical Dialogues in Cultural
Studies 439 (David Morley & Kuan-Hsing Chen eds., 1996).
13
See Andersen, supra note 9; Anders Walker, The Ghost of Jim Crow: How Southern Moderates Used Brown v. Board of Education
to Stall Civil Rights 4 (2009) [hereinafter Walker, The Ghost of Jim Crow]; Sidney Tarrow, Mentalities, Political Cultures, and
Collective Action Frames: Constructing Meanings Through Action, in Frontiers in Social Movement Theory 174, 189 (Aldon D.
Morris & Carol McClurg Mueller eds., 1992).
14
See Brown v. Bd. of Educ., 347 U.S. 483 (1954); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).
15
Anders Walker, “Neutral” Principles: Rethinking the Legal History of Civil Rights, 1934-1964, 40 Loy. U. Chi. L.J. 385, 426-32,
435 (2009) [hereinafter Walker, “Neutral” Principles].
16
Early works on the civil rights movement tended to focus on the formation of movement structures. See, e.g., Aldon D. Morris,
The Origins of the Civil Rights Movement: Black Communities Organizing for Change (1984); Lewis M. Killian & Charles U.
Smith, Negro Protest Leaders in a Southern Community, 38 Soc. Forces 253 (1960); August Meier, Negro Protest Movements and
Organizations, 32 J. Negro Educ. 437 (1963).
17
Erving Goffman, Frame Analysis 21 (1974).
18
Robert D. Benford & David A. Snow, Framing Processes and Social Movements: An Overview and Assessment, 26 Ann. Rev. of
Sociology 611, 615-18 (2000).
19
See, e.g., Snow, supra note 2, at 464.
20
Id. at 467.
21
See id. at 467-69.
22
See id. at 469-72.
23
Id. at 472.
24
See id. at 473-76.
25
This particular definition of culture is taken from Benford & Snow, supra note 18, at 629. Benford and Snow were themselves
influenced by Stuart Hall. See, e.g., Hall, supra note 12, at 439. Other scholars interested in the limits that cultural frames place on
reform include James M. Jasper, The Art of Moral Protest: Culture, Biography, and Creativity in Social Movements 74-77 (1997)
and Jeff Goodwin & James M. Jasper, Caught in a Winding, Snarling Vine: The Structural Bias of Political Process Theory, 14 Soc.
F. 27, 28 (1999).
26
Zald, supra note 2, at 267.
27
Id.
28
Tarrow, supra note 13, at 188.
29
Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality 293-94
(1975).
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30
Id.
31
See id.
32
For Marshall's decision to target segregated schools directly, see id.
33
Id. at 290-91.
34
Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy 20 (William Chafe, Gary Gerstle, & Linda
Gordon eds., 2000).
35
Charles E. Wilson, et al., To Secure These Rights: The Report of the President's Committee on Civil Rights (1947).
36
See David McCullough, Truman 569-70 (1992); William H. Chafe, The Unfinished Journey: America Since World War II 91 (3d
ed. 1995) [hereinafter Chafe, Unfinished Journey].
37
See Shelley v. Kraemer, 334 U.S. 1, 20 (1948). Though often overlooked, To Secure These Rights provided a blueprint for much
of the civil rights reform that would emerge in the 1950s and 1960s, including the ruling against covenants, which borrowed the
Committee's theory that although covenants were private in nature, they depended on “court orders enforcing the private agreement.”
Wilson, supra note 35, at 169. In 1950, the Court decided Sweatt v. Painter holding that the University of Texas Law School had to
admit a black applicant, and McLaurin v. Oklahoma State Regents, holding that Oklahoma could not segregate black students within
its university system. Sweatt v. Painter, 339 U.S. 629, 642 (1950); McLaurin v. Okla. State Regents, 339 U.S. 637, 642 (1950).
38
Trends in the South actually went against racial equality as South Carolina Senator Strom Thurmond led a revolt by southern
democrats in the aftermath of Truman's civil rights plank, creating a third “States' Rights,” or “Dixiecrats” Party. See Michael R.
Gardner, Harry Truman and Civil Rights 99, 101-03 (2002).
39
See James Gilbert, A Cycle of Outrage: America's Reaction to the Juvenile Delinquent in the 1950s 183 (1986).
40
Education: Blueprint of Danger, Time, Oct. 30, 1950, at 79.
41
See Bart Beaty, Fedric Wertham and the Critique of Mass Culture 134 (2005).
42
Kluger, supra note 29, at 442-43.
43
See Beaty, supra note 41, at 95.
44
87 A.2d 862 (Del. Ch. 1952).
45
See Kluger, supra note 29, at 443-44.
46
Id. at 444; Fredric Wertham, Psychological Effects of School Segregation, Papers of the NAACP, Part 3, Ser. C, Reel 4.
47
To support the theory that segregation damaged black youth, the NAACP not only sent black children to be examined in New York,
but invited Wertham down to serve as an expert witness in Delaware. Beaty, supra note 41, at 95. Wertham testified in Belton v.
Gebhart, the Delaware portion of the series of cases that would eventually be consolidated into Brown v. Board of Education. In his
testimony, Wertham contended that although “the physical differences” between black and white schools in Delaware was “not at all
really material” it was nevertheless true that “segregation in general” was “anti-educational.” Kluger, supra note 29, at 445. By this
he meant that “most of the children” that he examined “interpret segregation in one way and only one way-and that is they interpret
it as punishment.” Id. Whether the state of Delaware wanted to punish black children or not, continued Wertham, had “nothing to
do with it.” What he was interested in was “what is in the minds of children.” Id.; Jack Greenberg, Crusaders in the courts: How a
Dedicated Band of Lawyers Fought for the Civil Rights Revolution 137 (1994).
48
See Benford & Snow, supra note 18, at 619.
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49
See Brown v. Bd. of Educ., 347 U.S. 483, 494-95 (1954).
50
Id. at 494.
51
Id. at 495 n.11. The footnote specifically cited: Kenneth B. Clark, Effects of Prejudice and Discrimination on Personality Development
(Midcentury White House Conference on Children and Youth, 1950); Helen Leland Witmer & Ruth Kotinsky, Personality in the
Making, the Fact-Finding Report of the Midcentury White House Conference on Youth and Children 135-58 (1952); Max Deutscher
& Isidor Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psych. 259-87 (Oct.
1948); Isidor Chein, What Are the Psychological Effects of Segregation Under Conditions of Equal Facilities? 3 Int.J. Opinion &
Attitude Research 229-34 (1949); Theodore Brameld, “Educational Costs,” in Discrimination and National Welfare 44-48 (Robert
M. MacIver ed., 1949); E. Franklin Frazier, The Negro in the United States 647-781 (1949); Gunnar Myrdal, An American Dilemma
(1944). The Court did not cite Frederic Wertham, perhaps because it did not want to confuse the debate over segregation with larger
debates over mass culture at the time. Wertham's larger work, because it focused so extensively on comic books, may have threatened
to introduce issues of censorship and the First Amendment into what was otherwise a decision on race. If segregation harmed black
children and therefore should be abolished, for example, then why shouldn't comic books, which did the same thing, be banned?
52
See Benford & Snow, supra note 18, at 617.
53
100 Cong. Rec. 11523 (daily ed. July 23, 1954) (statement of Sen. Eastland).
54
Id.
55
See William D. Workman, Jr., The Case for the South (1960).
56
Id. at 241.
57
Walker, The Ghost of Jim Crow, supra note 13, at 41-42, 77-82.
58
Id. at 42.
59
Id. at 80-81.
60
See generally Anders Walker, Blackboard Jungle: Delinquency, Desegregation, and the Cultural Politics of Brown, 110 Colum. L.
Rev. 1911, 1953 (2010).
61
See Gilbert, supra note 39, at 3.
62
Grace Palladino, Teenagers 161 (1996).
63
For example, while the FBI reported that juvenile delinquency rose fifty-five percent between 1952 and 1957, the majority of reported
crimes were vaguely described as incorrigible behavior, disorderly conduct, and violation of curfew. Id. at 161.
64
See Gilbert, supra note 39, at 182, 183, 188.
65
Frederic Wertham, The Seduction of the Innocent (1954). For a description of the popularity and influence of Wertham's work,
see Gilbert, supra note 39, at 103-04. In part due to its emphasis on mass conditioning, The Seduction of the Innocent received
widespread acclaim and transformed Wertham into a popular authority not only on comic books, but on the social psychiatry of
children in general. For a nation seized by concern over errant youth, Wertham gave structure to popular fears by rooting delinquency
not in nebulous forces, but distinct, controllable causes. As he summarized in Seduction, “You cannot understand or remedy a social
phenomenon like delinquency by redefining it simply as an individual emotional disorder. It is on the basis of such an approach,
however, that important mass influences on the child's mind have for years been completely overlooked.” Wertham, supra, at 156-57.
66
See Numan V. Bartley, The Rise of Massive Resistance: Race and Politics in the South During the 1950's 176-77 (1999).
67
Wertham, supra note 65, at 149.
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68
Id.
69
See Bartley, supra note 66, at 60-61.
70
Chafe, Unfinished Journey, supra note 36, at 157; see Bartley, supra note 66, at 60-61.
71
See Bartley, supra note 66, at 277.
72
See id. at 328-29. Though northern audiences recoiled at the violence in Little Rock, even they seemed ambivalent about integration
when it came to their own children's well-being. See Clarence Taylor, Knocking At Our Own Door: Milton A. Galamison and the
Struggle to Integrate New York City Schools 72-83 (1997).
73
See Benjamin Fine, City to Spur Integration By Building of 60 Schools, N.Y. Times, Oct. 31, 1957, at 1; see also Taylor, supra
note 72, at 72-83.
74
Fine, supra note 73, at 34.
75
Lawrence Fellows, Policeman for Each City School Urged by Brooklyn Grand Jury, N.Y. Times, Nov. 26, 1957, at 1.
76
Emanuel Perlmutter, Head of School Beset by Crime Leaps to Death, N.Y. Times, Jan. 29, 1958, at 1; Outrage in Brooklyn, Time,
Feb. 10, 1958, at 36.
77
Depth from Dixie, Time, Mar. 10, 1958.
78
Faubus Scores School Violence, N.Y. Times, Feb. 1, 1958, at 10.
79
Depth from Dixie, supra note 77.
80
2 Senators Clash on City's Schools, N.Y. Times, Feb. 5, 1958, at 16.
81
See William H. Chafe, Civilities and Civil Rights: Greensboro, North Carolina and the Black Struggle for Freedom 80-82 (1980);
Walker, The Ghost of Jim Crow, supra note 13, at 116.
82
See Klarman, supra note 7, at 421.
83
Bartley, supra note 66, at 320; see also Walker, The Ghost of Jim Crow, supra note 13, at 118-19. But see Klarman, supra note 7, at
421 (arguing that the backlash to Brown continued well into the 1960s).
84
Learned Hand, The Bill of Rights 55 (1958).
85
See id. at 54-55.
86
Id. at 15.
87
See id. at 54.
88
See id.
89
Id. at 72-73.
90
See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 1 (1959).
91
Id. at 31.
92
Id. at 32-33.
93
Id. at 33.
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94
Id.
95
See, e.g., Negro Suspended at Central High: Girl Dumps Food on White Boys in Little Rock-New Attack on N.A.A.C.P. Aide, N.Y.
Times, Dec. 18, 1957, at 31 (describing an incident where an African American female student lost her temper and dumped food
on a group of white boys).
96
See White Girl Reports Little Rock Penalty, N.Y. Times, Jan. 11, 1958, at 23; Little Rock Gets Guard at Night: Troops Posted at
School as ‘Precautionary’ Step After Clash of 2 Students, N.Y. Times, Jan. 17, 1958, at 10 (discussing incidents of intimidation
including throwing soup and bomb threats); Little Rock High Ousts Negro Girl: Student Was Involved in Several Racial Incident-3
Whites Suspended, N.Y. Times, Feb. 18, 1958, at 25.
97
See Mildred Murphy, School Welcomes Little Rock Girl: Director Greets Expelled Negro Pupil Here-She Hopes for Calm Stay,
N.Y. Times, Feb. 25, 1958, at 29; Little Rock Girl Sees More Strife: Expelled Pupil Doubts that 8 Remaining Negroes Can Stand
Harassment, N.Y. Times, Feb. 23, 1958 at 59 [hereinafter Little Rock Girl Sees More Strife].
98
Little Rock Girl Sees More Strife, supra note 97.
99
See Wechsler, supra note 90, at 33.
100
Walker, “Neutral” Principles, supra note 15, at 385-87.
101
Id. at 394-95.
102
United States v. Classic, 313 U.S. 299 (1941).
103
Classic, 313 U.S. 299; Smith v. Allwright, 321 U.S. 649 (1944); Walker, “Neutral” Principles, supra note 15, at 411.
104
See Walker, “Neutral” Principles, supra note 15, at 389-408.
105
See id. at 400-01.
106
For a discussion of the First Amendment's central role in the “Imagined Communities” of the United States, see Robert L. Tsai,
Eloquence & Reason: Creating a First Amendment Culture 31-34 (2008).
107
See Walker, “Neutral” Principles, supra note 15, at 408-12.
108
See id. at 419.
109
Wechsler, supra note 90, at 22.
110
See Walker, “Neutral” Principles, supra note 15, at 426-32.
111
See Gene Roberts & Hank Klibanoff, The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation 239-41,
357-58 (2006).
112
See id.
113
For the popularity of the First Amendment, see Tsai, supra note 106, at 32-34. For Wechsler's role in Sullivan, see Walker, “Neutral”
Principles, supra note 15, at 428.
114
Walker, “Neutral” Principles, supra note 15, at 429-30. See generally John C. Miller, Crisis in Freedom: The Alien and Sedition Acts
(1952); James Morton Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (1956).
115
See Walker, “Neutral” Principles, supra note 15, at 430-31. To Pulitzer Prize-winning journalists Gene Roberts and Hank Klibanoff,
New York Times v. Sullivan represented “a form of liberation.” See Roberts & Klibanoff, supra note 111, at 364.
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116
See Walker, The Ghost of Jim Crow, supra note 13, at 131, 140-41 (discussing legal rights for African Americans and the Voting
Rights Act).
117
See Osha Gray Davidson, Under Fire: The NRA and the Battle for Gun Control 22 (expanded ed. 1998).
118
Id. at 21, 22.
119
Id. at 23.
120
See id. at 23, 35-36.
121
See Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J.L. & Liberty 48, 60-63 (2008).
122
See U.S. Const. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.”).
123
Cf. United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939), rev'd, 307 U.S. 174 (1939) (addressing the constitutionality of
regulating short-barrel weapons).
124
United States v. Miller, 307 U.S. 174, 178 (1939).
125
Id.
126
Id. (quoting U.S. Const. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed.”)).
127
James M. Naughton, U.S. Panel Urges Handgun Seizure to Curb Violence, N.Y. Times, July 29, 1969, at 1, 18; see also Crisis in the
Cities, N.Y. Times, July 29, 1967, at 24; Hruska Opposed on Violence Unit: Schlesinger Says Senator Fought New Gun Curbs, N.Y.
Times, June 10, 1968, at 29; Transcript of Johnson's TV Address on the Riots, N.Y. Times, July 28, 1967, at 11.
128
Davidson, supra note 117, at 30; Registration Due on Certain Weapons, N.Y. Times, Oct. 31, 1968, at 17; see also Anders Walker,
From Ballots to Bullets: District of Columbia v. Heller and the New Civil Rights, 69 La. L. Rev. 509, 513 (2009) [hereinafter Walker,
From Ballots to Bullets].
129
Davidson, supra note 117, at 30-36.
130
Siegel, Dead or Alive, supra note 7, at 201.
131
Id. at 212.
132
Id. at 212, 215.
133
Id. at 217, 220.
134
Arguably the only challenge to the 1968 Gun Control Act, as Siegel notes, was the 1986 Firearm Owners Protection Act, which
limited aspects of the earlier law. Id. at 216.
135
A distinction must be made here between the NRA's actual litigation strategy and some of the rhetoric of its leaders. As Siegel notes,
prominent NRA officials like Tanya Metaksa did voice opposition to regulations of automatic weapons, though they never dared
bring a legal Second Amendment challenge to them in court. See id. at 228.
136
Some might argue that the NRA's participation in Printz v. United States was part of a larger opposition to federal regulation of
automatic weapons, but this overreads the claim in Printz, which opposed background checks required by the Brady Bill. See Printz
v. United States, 521 U.S. 898 (1997).
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137
Robert D. McFadden, Weapons Cache is Seized With 4 Suspects in Suffolk, N.Y. Times, June 6, 1969, at 1, 21; see also High Bail
Imposed in L.I. Arms Case: Raids Yielded Big Caches of Guns and Ammunition, N.Y. Times, June 7, 1969, at 45.
138
Donald Janson, Fugitive Minutemen Never Aroused Suspicion in New Mexico, N.Y. Times, July 20, 1969, at 47; see also 2 Held
in Seizure of Machine Guns In California Raid, N.Y. Times, Dec. 1, 1969, at 51 (describing federal raid of weapons cache owned
by “Nazi buff” James Gary Steuard).
139
See Martin Waldron, Militants Stockpile Illegal Guns Across the U.S., N.Y. Times, Dec. 28, 1969, at 42; see also 2 Held with Truck
Carrying Dynamite, N.Y. Times, Jan. 21, 1970, at 94; 6 Men and 1,151 Guns Seized in New York Area, N.Y. Times, July 30, 1980, at
B8 (describing suspects arrested for sale of “gangster guns” that looked like “ball point pens and fire[d] one bullet”); 15 Are Arrested
in Weapon Raids: U.S. Agents in Midwest Act on ‘Illicit Gun Dealing’, N.Y. Times, July 25, 1971, at 38; Rap Brown Resentenced
in New Orleans, N.Y. Times, June 3, 1972, at 18 (describing sentencing of black militant for violation of the GCA).
140
See Todd S. Purdum, Clinton Assails The Preachings Of the ‘Militias', N.Y. Times, May 6, 1995, at 1, 9.
141
See Siegel, Dead or Alive, supra note 7, at 232.
142
See Gun Club President Reports an Easing In Demand for Curb, N.Y. Times, Apr. 4, 1971, at 35.
143
Naughton, supra note 127, at 18.
144
Id. at 18.
145
Abner Mikva, A Plea for Gun Control Legislation, Chic. Trib., Sept. 16, 1971, at 24; Gun Controls Too Hot for Most Politicians,
Chi. Trib., June 29, 1972, at 1, 4.
146
Bayh recommended an amendment to the GCA banning “the sale or transfer of any handgun to anyone but a law enforcement officer”
unless the gun was considered primarily aimed at ” ‘lawful sporting purposes.’ “ Ben A. Franklin, Shooting of Wallace Spurs a New
Effort to Tighten Gun Controls, N.Y. Times, May 17, 1972, at 29.
147
Nancy Hicks, Javits and Percy Ask Handgun Curb: Bill Calls for Prohibition in High Crime-Rate Areas, N.Y. Times, July 22, 1975,
at 32.
148
See William E. Farrell, Majority at Hearing in Chicago Urges Congress to Ban Pistols, N.Y. Times, Apr. 16, 1975, at 24; Wayne
King, Efforts to Curb Cheap Pistols Called Failure, N.Y. Times, June 20, 1975, at 32; Robert Pear, Crime Bill Challenged by
Conservative Republicans, N.Y. Times, Sept. 15, 1980, at A17 (describing opposition to federal criminal code restricting firearms
by the conservative Senate Steering Committee). National opposition to gun control led to a more localized approach, focusing on
municipal bans. See, e.g., Joanna Dember, Trying a New Tactic in Handgun Control, N.Y. Times, Dec. 2, 1979, at 32.
149
Kennedy Plea Fails to Retain Gun Curb, N.Y. Times, Oct. 10, 1969, at 13.
150
Franklin, supra note 146, at 29.
151
John Hinckley's attempted assassination of Ronald Reagan created a surge of popular support for gun regulation, culminating in the
Brady Handgun Violence Prevention Act, 18 U.S.C. §§ 921-922 (2006). President Clinton signed the Brady Bill into law in 1993.
Clinton Signs Bill on Guns into Law, N.Y. Times, Dec. 1, 1993, A12. A provision of the bill was invalidated by the Supreme Court
in Printz v. United States, 521 U.S. 898, 933 (1997).
152
See Wayne LaPierre, Self-Defense: The Right and the Deterrent, reprinted in Guns in America: A Reader 173, 174 (Jan E. Dizard
et al. eds., 1999).
153
Id. at 174.
154
Tanya K. Metaksa, Self-Defense: A Primary Civil Right, reprinted in Guns in America: A Reader 194, 195, 198 (Jan E. Dizard et
al. eds., 1999).
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155
Brief for the Nat'l Rifle Ass'n and the NRA Civil Rights Def. Fund as Amici Curiae in Support of Respondent at 1, Dist. of Columbia
v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290).
156
Brief of Amicus Curiae Congress of Racial Equality in Support of Respondent, Dist. of Columbia v. Heller, 128 S. Ct. 2783 (2008)
(No. 07-290).
157
Walker, From Ballots to Bullets, supra note 128, at 515-16.
158
Id. at 516.
159
Id. at 517-19.
160
August Meier & Elliot Rudwick, CORE: A Study in the Civil Rights Movement, 1942-1968 412 (1973).
161
Id. at 414.
162
Brief of Amicus Curiae Congress of Racial Equality in Support of Respondent at 10, 11, Dist. of Columbia v. Heller, 128 S. Ct.
2783 (2008) (No. 07-290).
163
See Walker, From Ballots to Bullets, supra note 128, at 527-33.
164
See id. at 534-35, 539.
165
Siegel, Dead or Alive, supra note 7, at 239, 242.
166
See Robert Barnes, Justices Reject D.C. Ban On Handgun Ownership, Wash. Post, June 27, 2008, at A1.
167
Nat'l Rifle Ass'n v. Vill. of Oak Park, 617 F. Supp. 2d 752 (N.D. Ill. 2008). After the district judge ruled in favor of the bans, both
Gura and the NRA appealed, and the Seventh Circuit joined their appeals in a single case, titled McDonald v. Chicago.
168
Brief for Petitioner at 6, McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (No. 08-1521).
169
Robert Barnes, NRA Avoids Getting Shut Out of Gun Case, Wash. Post, Feb. 8, 2010, at A13.
170
See Adam Liptak, Justices Will Weigh Challenges to Gun Laws, N.Y. Times, Oct. 1, 2009, at 17; Tony Mauro, Liberals Use Supreme
Court Gun Ban to Bolster Other Rights, Legal Times, Feb. 24, 2009.
171
For the dispute between Gura and the NRA over litigation strategy, see Robert Barnes, supra note 169, at A13.
172
92 U.S. 542 (1874).
173
Adam Liptak, Justices Seem to Lean Toward Extending Individual Right to Own Guns, N.Y. Times, Mar. 3, 2010, at 14.
174
McDonald v. City of Chicago, 130 S. Ct. 3020, 3038 (2010).
175
Gary Emerling & David C. Lipscomb, Gun Control Still in Force, Chief Says-Semiautomatics Banned, Wash. Times, June 28, 2008,
at A1.
176
Popular support for gun control dwindled during the first decade of the Twentieth Century, increasing the Legal Opportunity
Structure for federal cases like Heller and McDonald. To take just a few examples, a 2008 Gallup poll indicated that only twentyeight percent of Americans favored an absolute ban on handguns, significantly lower from the time the poll was first taken in
1959, when sixty percent of the population favored a total ban. Jeffrey M. Jones, In U.S., Record-Low Support for Stricter Gun
Laws, GALLUP (Oct. 9, 2009), http://www.gallup.com/poll/123596/in-u.s.-record-low-support-stricter-gun-laws.aspx. According
to a CNN/Opinion Research Corporation poll conducted in 2009, only thirty-nine percent of Americans favored stricter gun laws of
any kind, much less outright bans. Bill Schneider, Poll: Fewer Americans Support Stricter Gun Control Laws, CNN (Apr. 8, 2009),
http:// www.cnn.com/2009/POLITICS/04/08/gun.control.poll/#cnnSTCText.
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177
William N. Eskridge, Jr., Gaylaw 65, 99 (1999) [hereinafter Eskridge, Gaylaw]. Perhaps the largest gay rights group in existence in
the 1960s was the North American Homophile Conference, which boasted a relatively meager 6000 members. Webster Schott, Civil
Rights and the Homosexual: A 4-Million Minority Asks for Equal Rights, N.Y. Times, Nov. 12, 1967, at 47.
178
See Schott, supra note 177, at 451. One of the first gay plaintiffs represented by the ACLU was Clive Boutilier a Canadian immigrant
deported for being homosexual pursuant to the Immigration and Nationality Act of 1952. High Court Denies Homosexual Plea, N.Y.
Times, May 23, 1967, at 49.
179
Andersen, supra note 9, at 19.
180
Eskridge, Gaylaw, supra note 177. at 100.
181
Andersen, supra note 9, at 17-26; Eskridge, Channeling, supra note 7, at 420.
182
See generally Andersen, supra note 9; Eskridge, Gaylaw, supra note 177, Eskridge, The Case for Same-Sex Marriage: From
Sexual Liberty to Civilized Commitment (1996) [hereinafter Eskridge, The Case for Same-Sex Marriage]; William N. Eskridge, Jr.,
Dishonorable Passions: Sodomy Laws in America 1861-2003 (2008) [hereinafter Eskridge, Dishonorable Passions].
183
Eskridge, Gaylaw, supra note 177, at 109-11.
184
Andersen, supra note 9, at 19; Eskridge, Gaylaw, supra note 177, at 107; Eskridge, Dishonorable Passions, supra note 182, at 160.
185
See Eskridge, Gaylaw, supra note 177, at 105; Eskridge, Dishonorable Passions, supra note 182, at 184-85.
186
See Andersen, supra note 9, at 32.
187
Id. at 33-34.
188
Id. at 32-33.
189
Id. Initially the concern of elites, privacy became a middle class concern following World War II as thousands of American families
adopted new modes of living-suburbanization-and embraced new modes of leisure, including consequence-free, contraceptiveprotected sex-both of which amplified popular interest in privacy, an “interest whose importance,” notes William J. Stuntz, “grows
with one's bank account, or one's square footage.” William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 Geo. Wash.
L. Rev. 1265, 1289 (1999).
190
403 F. Supp. 1199, 1200 (E.D. Va. 1975).
191
Eskridge, Gaylaw, supra note 177, at 105.
192
See Andersen, supra note 9, at 66.
193
Id.
194
Id. at 66-67.
195
Doe, 403 F. Supp. at 1203, summarily aff'd, 425 U.S. 901 (1976), reh'g denied, 425 U.S. 985 (1976).
196
478 U.S. 186 (1986).
197
Andersen, supra note 9, at 82.
198
553 F. Supp. 1121 (N.D. Tex. 1982).
199
Eskridge mentions the Fifth Circuit opinion overturning Baker, but not the district court opinion upholding it. Eskridge, Dishonorable
Passions, supra note 182, at 238-39.
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200
Andersen, supra note 9, at 70-71.
201
Id. at 71.
202
See id.
203
Eskridge mentions the Reagan election in passing, noting that it constituted one of the “calamities of the decade,” but fails to show
how it accelerated LGB litigation in Bowers. Eskridge, Dishonorable Passions, supra note 182, at 235.
204
Lisa McGirr, Suburban Warriors: The Origins of the New American Right 259 (2001).
205
Cf. Kenneth A. Briggs, Evangelicals Debate Their Role in Battling Secularism, N.Y. Times, Jan. 27, 1981, at A12 (discussing
antihomosexual evangelical Christian influence in national politics and electing Reagan).
206
Andersen, supra note 9, at 82-83.
207
See id.; Eskridge, Dishonorable Passions, supra note 182, at 226.
208
Eskridge, Dishonorable Passions, supra note 182, at 238-39.
209
See supra Part II.
210
See Eskridge, Dishonorable Passions, supra note 182, at 243-47.
211
Andersen, supra note 9, at 88-89. The decision striking down New York's anti-contraceptive law was Carey v. Population Servs.
Int'l, 431 U.S. 678 (1977).
212
Andersen, supra note 9, at 89.
213
Bowers v. Hardwick, 478 U.S. 186, 197-98 (1986) (Powell, J., concurring).
214
Andersen, supra note 9, at 75. See generally Herman Schwartz (1988). For the impact of this campaign on actual cases, see Steven
Alumbaugh & C.K. Rowland, The Links Between Platform-Based Appointment Criteria and Trial Judges' Abortion Judgments, 74
Judicature 153 (1990).
215
See Sara Rimer, Fear of AIDS Grows Among Heterosexuals, N.Y. Times, Aug. 30, 1985, at A1; see also Eskridge, Dishonorable
Passions, supra note 182, at 261-62; Andersen, supra note 9, at 78-81.
216
See Rimer, supra note 215, at B2; Eskridge, Dishonorable Passions, supra note 182, at 261-62; Andersen, supra note 9, at 78-81.
217
State v. Walsh, 713 S.W.2d 508, 512-13 (Mo. 1986).
218
See Eskridge, Dishonorable Passions, supra note 182, at 261-62; Andersen, supra note 9, at 80-81.
219
Eskridge, Dishonorable Passions, supra note 182, at 266.
220
Andersen, supra note 9, at 95-96.
221
See id. at 95.
222
See Eskridge, Dishonorable Passions, supra note 182, at 279; Andersen, supra note 9, at 153.
223
Eskridge, Dishonorable Passions, supra note 182, at 279.
224
Id.
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225
Id. at 280-81; Andersen, supra note 9, at 160. Amendment 2 barred the state from granting LGB people any kind of “protected status,”
effectively invalidating anti-discrimination ordinances passed in Aspen, Boulder, and Denver. Eskridge, Dishonorable Passions, supra
note 182, at 280; see also Colo. Const. art. II, §30b.
226
Eskridge, Dishonorable Passions, supra note 182, at 281; Andersen, supra note 9, at 160.
227
Andersen, supra note 9, at 171.
228
517 U.S. 620, 635-36 (1996).
229
See Linda Greenhouse, Colorado Law Void: Majority Says Measure was Discriminatory-Hostility Cited, N.Y. Times, May 2, 1996,
at A1.
230
Eskridge, Dishonorable Passions, supra note 182, at 289.
231
Andersen, supra note 9, at 164-67.
232
Romer, 517 U.S. at 636 (1996) (Scalia, J., dissenting).
233
Eskridge, Dishonorable Passions, supra note 182, at 288; Eskridge, Gaylaw, supra note 177, at 294.
234
Hall, supra note 12, at 439.
235
Dirk Johnson, Ryan White Dies of AIDS at 18; His Struggle Helped Pierce Myths, N.Y. Times, Apr. 9, 1990, at D10; Andersen,
supra note 9, at 119.
236
Richard W. Stevenson, Basketball Star Retires on Advice of His Doctors, N.Y. Times, Nov. 8, 1991, at A1; Anna Quinden, Believe
in Magic, N.Y. Times, Nov. 9, 1991, at 23.
237
Johnson, supra note 235, at D10.
238
See supra notes 214-17.
239
Eskridge, Dishonorable Passions, supra note 182, at 267-68.
240
Id. at 268; Stephen McCauley, He's Gay, She's Straight, They're A Trend, N.Y. Times, Sept. 20, 1998, at 31.
241
McCauley, supra note 240 at 31; Bernard Weinraub & Jim Rutenberg, Gay-Themed TV Gaining a Wider Audience, N.Y. Times,
July 29, 2003, at C5.
242
Lawrie Mifflin, Title Character in ‘Ellen’ May Come Out as Gay, N.Y. Times, Sept. 16, 1996, at C14.
243
Lawrence Van Gelder, Celebrations as a TV Lesbian Goes Prime Time, N.Y. Times, May 1, 1997, at B15.
244
‘Ellen’ a Test Case for Publicity and Ratings: After the Hype, the Numbers, N.Y. Times, Apr. 30, 1997, at C18; Courtney Kane,
Only Real Surprise on ‘Ellen’ Was Lineup of Advertisers, N.Y. Times, May 2, 1997, at D2; Saralyn Chestnut, Letter to the Editor,
‘Ellen’ Opened Our Eyes to Gay Humanity, N.Y. Times, May 5, 1997, at A14.
245
Kane, supra note 244, at D2.
246
See Stuart Elliott, Levi Strauss Begins a Far-Reaching Marketing Campaign to Reach Gay Men and Lesbians, N.Y. Times, at Oct.
19, 1998, at C11. Some estimated the buying power of the gay community to exceed $300 billion a year. MTV and Showtime Plan
Cable Channel for Gay Viewers, N.Y. Times, Jan 10, 2002, at C1, 5.
247
Elliott, supra note 246, at C11.
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248
Id.
249
According to Lambda's attorneys, “the legal and political context surrounding sodomy and homosexuality” had changed dramatically
since 1986, warranting a frontal assault on precedent. Andersen, supra note 9, at 122.
250
Andersen makes this point explicitly. See id. at 136; see also Eskridge, Dishonorable Passions, supra note 182, at 289-98.
251
Lawrence v. Texas, 41 S.W.3d 349, 350, 359 (Tex. App. 2001), rev'd, 539 U.S. 558 (2003).
252
Lawrence v. Texas, 539 U.S. 558, 574-75, 578-79 (2003).
253
Eskridge, Dishonorable Passions, supra note 182, at 378-86; Andersen, supra note 9, at 136.
254
Eskridge, Dishonorable Passions, supra note 182, at 332.
255
Andersen, supra note 9, at 136.
256
Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI., 1998 WL 88743, at *1 (Alaska Super. Ct. Feb. 27, 1998); Andersen,
supra note 9, at 175.
257
Baehr v. Lewin, 852 P.2d 44, 48-49 (Haw. 1993).
258
Hendrick Hertzberg, Eight is Enough, The New Yorker, Dec. 1, 2008, at 27; Margaret Talbot, A Risky Proposal; Is it too soon to
petition the Supreme Court on Gay Marriage?, The New Yorker, Jan. 18, 2010, at 40.
259
Jo Becker, A Conservative's Road to Same-Sex Marriage Advocacy, N.Y. Times, Aug. 18, 2009.
260
Becker, supra note 259; Hertzberg, supra note 258, at 27; Talbot, supra note 258, at 40.
261
Talbot, supra note 258, at 40. Olson's case is not to be confused with Strauss v. Horton, the 2009 California case that upheld Proposition
8 on the grounds that it was an ordinary amendment and not a more far-reaching revision. See Editorial, A Setback for Equality,
N.Y. Times, May 27, 2009, at A26; Cheryl Wetzstein, California High Court Explains its Decision-Gay Marriage Ban Lawfully
Established, Wash. Times, May 28, 2009, at A18.
262
Talbot, supra note 258, at 40.
263
Id.
264
Id.
265
Id.
266
Id
267
Id.
268
Id.
269
Id.
270
Id.
271
Theodore B. Olson, The Conservative Case for Gay Marriage; Why same-sex marriage is an American value, Newsweek, Jan. 9,
2010, at 48.
272
Rubin, supra note 6, at 2.
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Walker, Anders 9/28/2015
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SHOTGUNS, WEDDINGS, AND LUNCH COUNTERS:..., 38 Fla. St. U. L. Rev. 345
273
See id. at 3.
274
See supra Part II.
275
See supra Part II.
276
See supra Part II.
277
See supra Part II.
278
See supra Part II.
279
See supra Part II.
280
See supra Part II.
281
To Pulitzer Prize-winning journalists Gene Roberts and Hank Klibanoff New York Times v. Sullivan represented “a form of
liberation.” See Roberts & Klibanoff, supra note 111, at 364.
282
See supra Part III.
283
See supra Part III.
284
See supra Part III.
285
See supra Part III.
286
See supra Part III.
287
See supra Parts II & III.
288
See supra Part III.
289
See supra Part IV.
290
See supra Part IV.
291
See supra Part IV.
292
See supra Part IV.
293
See supra Part IV.
294
See supra Part IV.
295
Eskridge, Dishonorable Passions, supra note 182, at 463 n.14.
296
See supra Part IV.
38 FLSULR 345
End of Document
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
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