Wednesday, May 28, 2014

Anticipatory Countermobilization

by Michael Dorf

In my latest Verdict column, I ask whether the post-Windsor unanimity of the lower courts (thus far) in striking down SSM bans will have any impact on the SCOTUS when the case eventually makes it there. Spoiler alert: I say the answer is yes. Here I'll discuss a related question about how we got to where we are today.

In an earlier post, I included a citation of a recent article in Law & Social Inquiry by me and my Cornell Government Dep't colleague Sid Tarrow. (Sid is probably the world's leading experts on social movements; it was a great honor to work with him, and to co-teach a seminar with him a few years ago.) The article is titled: Strange Bedfellows: How an Anticipatory Countermovement Brought Same-Sex Marriage into the Public Arena. Because of the journal's policy, the full-text version is behind a paywall, although if you're accessing the blog from a .edu domain, your institution probably has a site license for Wiley Online.  (OpenAthens is another possibility for some. L&SI is not available on Lexis or Westlaw.)  In any event, here's the abstract:
Since the 1980s, social movement scholars have investigated the dynamic of movement/countermovement interaction. Most of these studies posit movements as initiators, with countermovements reacting to their challenges. Yet sometimes a movement supports an agenda in response to a countermovement that engages in what we call “anticipatory countermobilization.” We interviewed ten leading LGBT activists to explore the hypothesis that the LGBT movement was brought to the fight for marriage equality by the anticipatory countermobilization of social conservatives who opposed same-sex marriage before there was a realistic prospect that it would be recognized by the courts or political actors. Our findings reinforce the existing scholarship, but also go beyond it in emphasizing a triangular relationship among social movement organizations, countermovement organizations, and grassroots supporters of same-sex marriage. More broadly, the evidence suggests the need for a more reciprocal understanding of the relations among movements, countermovements, and sociolegal change.
The germ of the article was my observation to Sid some years ago that I thought it was ironic that the anti-SSM groups on the right probably hastened the legalization of SSM because their opposition led the LGBT rights groups to fight for marriage equality. Sid noted that in the literature of social movements it is usually assumed that a movement puts an issue on the public agenda, whereupon a countermovement opposes it. We first wrote up a popular version of the story for CNN and then went about doing the research for the shcolarly paper.

Some of the conceptual work of that paper is devoted to coming up with non-circular definitions of "movements" and "countermovements" so that our thesis can even be evaluated, whereas the bulk of the paper is devoted to compiling evidence (from the existing literature and our own interviews) about what actually happened. We began with the hypothesis that "anticipatory countermobilization" catalyzed the marriage equality movement, and we found substantial evidence for that hypothesis, but as the abstract indicates, we also (somewhat unexpectedly) found that there was also a complicated dynamic between movement activists and the grass roots.

What about anticipatory countermobilization more broadly? The paper concludes by proposing a research agenda for enterprising scholars interested in describing the circumstances in which it is likely to occur. We note that the picture is likely to be quite complex.  Here is what we say:
[O]ur confirmation of the important, though not exclusive, role that anticipatory countermobilization played in leading the LGBT rights movement to champion same-sex marriage led us to wonder whether sociological accounts of movement/countermovement dynamics ought to be revised to include the dynamics of anticipatory countermobilization. At the least, this could be a fertile field for comparative research. We would guess that evidence of anticipatory countermobilization would most likely be found in movements concerning social issues, broadly defined, because such issues tend, by their nature, to be polarizing. For example: 
Did segregationists’ invocation of miscegenation spur civil rights activists to embrace interracial marriage at an earlier point than might otherwise have been expected? 
Did the pro-life movement’s efforts to ban so-called partial-birth abortion lead the pro-choice movement to define the targeted procedures as within the ambit of the abortion right it sought to protect? 
Has the gun rights movement in the United States been led to adopt ever-more absolutist positions by the gun-control countermovement’s backing of measures such as waiting periods and an assault weapons ban? 
We do not wish to prejudge the answers to these and other questions. Anticipatory countermobilization can lead a movement to rally around the cause that the countermovement attacks in anticipation, but it also can lead movement leaders to distinguish their cause from the one under attack. For example, the modesty of the US labor movement in the post–World War II United States relative to Europe’s can be understood as partly a reaction against the strength of US anticommunism: rather than embrace a radical agenda, labor leaders were often at pains to renounce one. Likewise, when opponents of the Equal Rights Amendment warned that it would lead to women being drafted into the military, some women’s rights activists responded by distancing themselves from that position, rather than embracing it.
Put differently, anticipatory countermobilization is real, but accurately predicting it is difficult. We hope that our case study and theorizing inspires further research into these questions.


Paul Scott said...

"Because of the journal's policy, the full-text version is behind a paywall..."

A total non-sequitur, but one in which I would like to see more professors engage across all disciplines. You and a volunteer staff (though given the "resume boost" there are reasons to not describe the student staff as volunteer) do all of the work. A journal publishes you work. You get nothing, the journal then restricts access. Academia needs to wrest control of this situation and step one is to have highly regarded professor refuse to publish in journals that put the electronic references behind a paywall.

You all put up with this system because 1. you are used to it and 2. all of academia has access; but the general public has to pay exorbitant rates to read your work (or has to know you personally so that they can request a copy). Academic work should not be restricted to the elite.

At this point, publishers are nothing but a leach on the system. They no longer provide the best (or even, I would suggest, a good) method of disseminating work. Professors, such as yourself, are the only ones that can put an end to this absurd situation.

Michael C. Dorf said...

Paul: I pretty much agree with you here. This is not a problem in law journal publications, which often put their material on their own free websites and, even when they do not, now permit authors to put up pdfs on SSRN, BePress, etc. E.g., you can find nearly all of my papers in law journals at my ssrn page:
or at my Cornell Law Library page:
Because I'm not accustomed to the contrary norms in the social sciences, I didn't read the contract sufficiently clearly when the publication offer was made, and so I was also surprised by this embargo. Nonetheless, I'm going to see whether I can get permission for SSRN and the Cornell law library to put it up.

Neil H. Buchanan said...

I can't find the link, but I wrote something recently in which I took the position that you took in the CNN piece, i.e., that the anti-SSM people ended up putting SSM on the agenda, thus crystallizing support for SSM among a gay rights population that was really not all that excited about the issue as an initial matter. A reader objected in a comment, saying that the anti-SSM was not anticipatory at all, because it had arisen in response to the Hawaiian court's SSM ruling. This point struck me as incomplete, at best, and most likely ahistorical, but I put it aside without much further thought. What's your take on it, Mike?

Neil H. Buchanan said...

And by the way, the Dorf-Tarrow piece is exactly the kind of thing that drives mainstream economists nuts: Really good sociology about an interesting subject, but something that cannot be mathematized and proven in an optimizing framework. As I've been saying in several recent posts (and will again in tomorrow's post), the only response is to call people like you
squishy" and "weak." Yet it's work like this that actually advances understanding.

Michael C. Dorf said...

Neil: Our thesis is that the right "anticipatorily countermobilized" before the LGBT rights movement was, as a movement, pushing for marriage; we do not claim that the right mobilized out of the blue. Here is what we say about Baehr, the Hawaii case:

Although Baehr excited LGBT activists all over the country, it was not the result of an organized campaign by the mainstream of the LGBT movement, which had, thus far, put marriage on the back burner of its concerns. But it sowed panic among social conservatives, who worried that—if same-sex marriage became legal in
Hawaii—the Full Faith and Credit Clause of the US Constitution would require other states to recognize same-sex marriages from across the Pacific. Baehr was the trigger for the religious right to push for passage of state and national legislation declaring marriage to be “between one man
and one woman.” It was mainly in response to this strategy that the US Congress, in 1996, passed DOMA.

Neil H. Buchanan said...

Got it. Thank you.

Scott said...

Paul: Or you can visit your local public university, where your tax dollars provide public access to a wide variety of academic publications in print and electronic forms. Or visit the webpage for your state library, which may provide access to some academic content if you can verify your state citizenship with a driver's license.

barcrunchsub said...

Regarding your Verdict column, could all this federal court unanimity on the unconstitutionality of SSM bans mean this issue may never get to the Supreme Court? The column mentions one Fourth Circuit Court of Appeals judge who may not sustain the lower court’s ruling invalidating a SSM ban, but what if he doesn’t, of if he is reversed en banc? Could all this federal court consensus, perhaps combined with the phenomenon of some attorneys general who have chosen not to even fight to law, and legislatures changing their state laws on their own, mean we reach a national consensus on the legality of SSM without the Supreme Court ever ruling definitively on the merits of SSM? I haven’t been following the court cases on this too closely so I’m not sure how close the Supreme Court is, procedurally, to having (another) chance to rule on a constitutional right to SSM.

Michael C. Dorf said...

barcrunchsub: Emily Bazelon raised that possibility on Slate last week:
I think it unlikely, even if no split develops given the importance of the issue, but you never know.

Evin Terna said...

Hawaii—the Full Faith and Credit Clause of the US Constitution would require other states to recognize same-sex marriages from across the Pacific. Baehr was the trigger for the religious right to push for passage of state and national legislation declaring marriage to be “between one

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