Rights Discourse and the Mobilization of Bias: Exploring the Institutional Dynamics of the Culture Wars

Date of Completion

January 2012


Law|GLBT Studies|Political Science, General




This dissertation manuscript examines how conservative opponents of same-sex marriage have used rights discourse to construct an identity of themselves as victims of oppression, and gays and lesbians as dangerous and deviant "outsiders." I focus in particular on how this process of identity construction has played out differently in different institutional environments. I find that conservative rights discourse has been much more prevalent, and much more effective, outside the courtroom, than in it. This finding is counterintuitive, given that rights discourse would seem to be well-suited for a legal environment. Conservative rights discourse is less effective inside the courtroom because these arguments often rely on implicit discriminatory stereotypes, or rest on claims that cannot be adequately supported with evidence. These shortcomings are frequently exposed under the scrutiny of dispassionate judicial actors. However, in a popular arena, they are free to operate with considerably less scrutiny. Here, rights discourse is used to mask discriminatory stereotypes, and lend legitimacy to positions that would frequently be rejected if made explicitly. ^ This dissertation manuscript adds to our current understanding of how rights function in American politics in a number of important ways. While many studies of legal mobilization have explored the implications of legal symbols and discourse, less attention has been given to how institutional norms and constraints structure this discourse. I find that rights claims advanced by conservative opponents of same-sex marriage thrive outside of the courtroom despite the fact that they have typically been rejected or ignored by formal legal actors. This challenges conventional understandings of legal mobilization, which tend to preference activities that occur inside of a legal setting. These findings also challenge the popular understanding of rights as a "liberating" force in American society. Many scholars have studied how rights can be used to challenge status quo hierarchies; but there is nothing inherently "liberal" about rights. Rights are given meaning by the parties who seek to use them, and the institutional contexts in which they are advanced. Thus, conservative groups seeking to preserve status quo power structures are just as likely and able to use rights discourse as liberal ones. ^