You've Won, Now What? The Influence of Legal Change on Gay and Lesbian Mobilization, 1974–1999

Abstract

Research on movement outcomes primarily examines the conditions under which social movements influence the law. Less attention has been given to the influence that legal change might have on the movement's subsequent development. Does the achievement of legal goals help the movement mobilize or does the movement experience decline once change occurs? Using unique measures of gay and lesbian mobilization, I investigate the influence of legal change on the number of gay and lesbian movement organizations in each state from 1974 to 1999. Results demonstrate that the impact of legal change is contingent on the type of reform achieved and the cultural context surrounding the decision.

ACKNOWLEDGMENTS

Parts of this research were funded by grants from the National Science Foundation (SES-9906911) and the Vanderbilt University Graduate School. I would like to thank Holly J. McCammon and Pamela Brandwein for their thoughtful comments. I would also like to thank Carole J. Wilson and Sheryl L. Skaggs for their technical and statistical support. An earlier version of this article was presented at the annual meeting of the Southern Sociological Society in New Orleans, Louisiana, March 2003.

NOTES

Notes

¹ Antidiscrimination protection can also be passed at the city and county level. The first local antidiscrimination law was passed in Lansing, Michigan, in 1972, a full decade before the first state-level law (Button et al. 1997). While only 11 states had statewide protection by the end of 1999, a much larger percentage of lesbians and gays were protected from discrimination by local ordinances. For example, by 1998, over 23 percent of Texas residents had protection against discrimination based on sexual orientation even without a state-level law (Haider-Markel 2000).

² Antidiscrimination protection can also be achieved through executive order, but these orders only protect public employment (Lambda 2002a). In this study, I focus on the passage of laws, because of the wider protection they provide. Several states began by adopting executive orders and later passed laws with more extensive protections. I use the date civil rights protection was passed through the legislature, regardless of whether an executive order existed previously.

³ Since 1999, 10 other states have passed antidiscrimination laws protecting sexual orientation: Maryland (2001), New York (2002), New Mexico (2003), Illinois (2005), Maine (2005), Washington (2006), Iowa (2007), Oregon (2007), Colorado (2007), and Delaware (2009).

⁴ Between 1999 and the Lawrence v. Texas decision in 2003, four other states decriminalized sodomy: Arizona (2001), Minnesota (2001), Arkansas (2002), and Massachusetts (2002).

⁵ The inclusion of sexual orientation in hate crime legislation also meets these requirements. However, using data shared by Earl and Soule (2001), I found that this policy outcome did not significantly influence subsequent mobilization so I do not include it in the article.

⁶ While the achievement of desired policy is usually defined as a movement outcome, I argue that legal change is also a form of political opportunity. Political opportunity is a characteristic of the external environment that makes mobilization more or less likely (Kitschelt 1986; Tarrow [1994] 1998; Meyer 2004). Policy change can provide signals to the social movement about the need for and possible success of subsequent mobilization (Meyer and Minkoff 2004). For examples of research using the presence or absence of desired legal change as a form of political opportunity see Wald et al. (1996), McCammon et al. (2001), and Soule (2004).

⁷ This is not to suggest that the movement was uninterested in decriminalization. The majority of research on the gay and lesbian activism defines sodomy law reform as a goal of the movement, throughout the period under study (Clendinen and Nagourney 1999; Bernstein 2003).

⁸ I am not arguing that sodomy law reform was unimportant for lesbians and gays; it was a significant achievement. The decriminalization of sexual acts between consenting adults removed a significant justification for discrimination against lesbians and gays. However, sodomy laws could be removed without the state supporting lesbian and gay rights per se.

⁹ The Gayellow Pages has several regional editions, but the oldest of these was first published in 1979, six years after the first national volume. Therefore, I use the national edition to maximize the years that can be included in the analyses. There are variations between the national and regional editions, but not in a consistent pattern.

¹⁰ Although the Gayellow Pages has been published since 1973, there are seven years in which no volume was published. For these years—1979, 1981, 1984, 1989, 1991, 1993, 1996, 1998—the average number of organizations from the previous and following years was used. Using averages for the missing years does not influence the results. When I exclude the missing years, results are comparable to those presented below. Therefore, I include the missing state-years.

¹¹ While it would be interesting to examine the effect of legal change on different types of lesbian and gay organizations (political, general pride, etc.), it is not possible because of variations in the way the Gayellow Pages lists organizations across volumes. In recent years, the Gayllow Pages divides organizations into specific subheadings such as “Political/Legislative,” “Business & Professional,” and “General, Multi-Purpose, Pride”; but in earlier volumes, organizations were lumped together into more general categories. There is no way to separate these organizations into subcategories by name alone. Therefore, the analyses focus on the influence of legal change on the more inclusive definition of gay and lesbian SMOs.

¹² The number of organization is actually a conservative measure of mobilization. Relying upon organizational counts probably underestimates the influence of legal change on mobilization by missing shifts in more fluid forms of mobilization such as membership and fundraising.

¹³ The distinction between the decision and effective dates only applies to legislative repeals. In the case of judicial reform, the two dates are the same. However, in the case of legislative repeal, the implementation of decriminalization can happen a year or more after the legislative vote, especially when the law was repealed during larger penal code revisions. I use the year state officials made the decision to decriminalize the law because I am interested in the achievement of policy change which occurs when the state officials make their decision.

¹⁴ I also examined the existence of having a sodomy law or antidiscrimination protection, rather than its passage date, on the number of gay and lesbian SMOs (i.e., the variables are coded 1 for every year after the legal change occurred). Only the existence of antidiscrimination protection was significant, but lost significance when the legal change versions of the variables were added.

¹⁵ While most of the gay and lesbian movement's legal goals are achieved through legislative decisions, my measure of legislative party affiliation (the percentage of state legislators affiliated with the Democratic Party in nonsouthern states) is not significant; therefore, I do not include it.

¹⁶ PFLAG was started in 1981 so the variable is zero for all years prior to that.

¹⁷ I use change scores for the resource measures because the lagged versions are highly correlated with the lagged endogenous variable, creating the potential for multicollinearity.

¹⁸ In results not presented here, I also tested the effect of states with traditionalist orientations on the number of gay and lesbian organizations. It was not significant.

¹⁹ Libertarian ideology is not lagged because the variable does not vary over time, only by state.

²⁰ The number of colleges and universities is not available for 1980, 1983, 1988, and 1990. For those years, I use the average of the previous and following years.

²¹ I also examined the proportion of the state population with a BA degree or more. The variable was not significant, so I do not include it here.

²² Wald et al. (1996:1163) define the following as conservative Protestant religious opposing homosexuality: “Assemblies of God, Baptist (Southern Baptist Convention, General Conference, Missionary, Conservative, Free Will) Christian and Missionary, Church of Christ, Christian Reformed, Churches of God, Mennonites, Latter Day Saints, Nazarene, Lutheran (Missouri and Wisconsin Synods), Pentecostal, Presbyterian Church in America, Salvation Army, and Adventist.”

²³ Since data are only available every 10 years, I linearly interpolate the intervening years to create a measure from 1971 to 1999.

²⁴ I run the interaction terms in separate models because they share a term in common—the passage of antidiscrimination protection. Interpretation of the interaction effects would be unwieldy if they were in the same model.

²⁵ If legal protection against discrimination is already in place, sodomy law reform may be perceived as unnecessary, explaining why mobilization is not facilitated by sodomy decriminalization. To check this possibility I removed Wisconsin from the analyses, the only state to pass antidiscrimination protection before its sodomy law was repeal. The effect of antidiscrimination protection and sodomy law removal were unchanged in these analyses.

²⁶ This does not indicate that shifts to Republican control decrease mobilization. The two legislative instability measures are not mirror images of one another since there are numerous years in which the party in control of the legislature stays the same. I also considered the magnitude of shifts to Republican control, but it was not significant.

²⁷ I also tried two other measures of non-gay allies: National Organization for Women and ACLU support. Neither variable was significant.