This chapter examines how opponents of same-sex marriage have used rights discourse to construct an identity of themselves as victims, and construct gays and lesbians as deviant “others.” I find that conservative rights discourse has been more effective outside the courtroom than in it. This is because these arguments rely on implicit discriminatory stereotypes which 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 be rejected if made explicitly.
The idea for this chapter started as part of my doctoral dissertation. Thanks to Jeff Dudes, David Yalof, and Kristin Kelly at the University of Connecticut for overseeing that project and providing considerable encouragement and feedback. Special thanks to Jeff for introducing me to much of the literature that forms the theoretical foundation of this chapter, and for providing extensive commentary on an earlier draft. Also thanks to the anonymous reviewers at Studies for their feedback and to Austin Sarat for agreeing to publish the manuscript.
Mello, J. (2015), "Rights Discourse and the Mobilization of Bias: Exploring the Institutional Dynamics of the Same-Sex Marriage Debates in America", Studies in Law, Politics, and Society (Studies in Law, Politics, and Society, Vol. 66), Emerald Group Publishing Limited, Bingley, pp. 1-34. https://doi.org/10.1108/S1059-433720150000066001
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