Multidimensional Advocacy as Applied: Marriage Equality and Reproductive Rights

Abstract

Talking about equality and reproductive rights advocacy (1) together presents an interesting, and sometimes puzzling, assortment of challenges and opportunities. Both involve efforts to secure legal protections and social recognition that are fundamentally important to those who need them yet also deeply provocative to their opponents. For both, too, advocacy takes place on a shifting terrain shaped by competing views of sexuality, autonomy, equality, personhood, and more. Yet two advocacy efforts have experienced very different receptions over time. Just over two decades ago, Supreme Court expressly affirmed that women have a constitutional right to seek an abortion and rejected an effort by abortion adversaries to have Court overturn Roe v. Wade. (2) Marriage equality, by contrast, seemed almost like a pipe dream. Although Hawaii Supreme Court's recognition of same-sex couples' rights claim following year (3) seemed to hold promise, federal government and many states rushed to pass defense of marriage acts (DOMAs) to short-circuit similar claims throughout country. (4) During 1980s, pattern was similar, with prospects for reproductive rights seeming far more secure than hopes for equality. In same term that Supreme Court invalidated another Pennsylvania law restricting access to abortion, (5) Court also rejected a gay man's constitutional claim against Georgia's sodomy law, observing that it was best, facetious. (6) Popular views about homosexuality generally, and rights for same-sex couples in particular, were also overwhelmingly negative, while roughly half of Americans supported a woman's right to choose an abortion. (7) More recently, though, trajectories appear to have crossed. Public opinion and legal developments have moved sharply in favor of equality. (8) By contrast, during same period, both case law and legislation have increasingly rejected advocates' claims and circumscribed access to abortion. (9) This Essay aims to understand how advocacy strategies--particularly advocacy that is outside courtroom but linked to litigation on a related issue--have contributed to these shifts in trajectories and helped to shape environment in which courts are deciding cases. (10) In particular, my focus is on role of lawyers in contributing to and guiding that environment-shaping process. I examine these efforts through lens of what I call multidimensional advocacy. (11) This framework, which is at once theoretical and strategic, calls attention to multiple and often mutually-reinforcing strategies that can be implemented to change perceptions, conversations, and ultimately, outcomes related to particular laws or policies. (12) It calls attention, too, to central role that public perceptions can play in likelihood of litigation success: when end goal of a social change lawsuit seems plausible in surrounding society, legal claims are likely to be better received by judges. (13) The multidimensional advocacy framework thus highlights both responsibility of advocates to generate that social and judicial receptivity as well as practices--including community engagement and media outreach, among others--advocates use for that purpose. With respect to responsibility, one might even say that it is advocacy malpractice not to work in a multidimensional fashion on most issues. In both public and private law settings, best lawyers routinely advocate on many fronts, understanding that engaging with perceptions of their claims and their clients can be critical to success. As George Washington put point, in an admittedly different context, the truth is, people must feel before they will see. (14) When advocates engender feelings receptive to their claims outside of court, they enhance likelihood that decisionmakers will similarly feel--and see--their way to desired outcome. …