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This chapter uncovers the destabilizing and transformative dimensions of a legal process commonly described as assimilation. Lawyers working on behalf of a marginalized group often argue that the group merits inclusion in dominant institutions, and they do so by casting the group as like the majority. Scholars have criticized claims of this kind for affirming the status quo and muting significant differences of the excluded group. Yet, this chapter shows how these claims may also disrupt the status quo, transform dominant institutions, and convert distinctive features of the excluded group into more widely shared legal norms. This dynamic is observed in the context of lesbian, gay, bisexual, and transgender (LGBT) rights, and specifically through attention to three phases of LGBT advocacy: (1) claims to parental recognition of unmarried same-sex parents, (2) claims to marriage, and (3) claims regarding the consequences of marriage for same-sex parents. The analysis shows how claims that appeared assimilationist – demanding inclusion in marriage and parenthood by arguing that same-sex couples are similarly situated to their different-sex counterparts – subtly challenged and reshaped legal norms governing parenthood, including marital parenthood. While this chapter focuses on LGBT claims, it uncovers a dynamic that may exist in other settings.

Within the legal mobilization framework, sociolegal scholars identify elite support as a key indirect benefit of litigation. Court-centered strategies generate support from influential state and private actors, and this support helps a movement to achieve its goals. Instead of assuming elite support to be a decidedly positive step in a movement’s trajectory, a more contextual analysis situates elite support as a complex, dynamic factor that movement advocates attempt to manage. Such support may at times create political and legal risks that jeopardize a movement's progress. My analysis of the marriage equality movement suggests a tentative typology with which to approach elite support: Elite support appears generally productive for a movement when it leads to action consistent with the movement's strategy. On the other hand, elite support may pose significant risk when it prompts action inconsistent with the movement's strategic plan, even if it is consistent with the movement's substantive positions.

This chapter comments on the papers produced as part of the symposium on Law and the Imagining of Difference. The chapter observes that the diversity that marks the human species gives rise to differences across individuals and groups. These differences create a challenge for law, for legal rules, and categories tend, among other things, to flatten or suppress difference. How to ensure that law treats differences properly? One way is to require that legal rules be rationally related to a proper purpose. Another is to require that persons be treated equally. If the principle of equality solves certain problems of flattening, it also may create problems. The key to applying properly the principle of equality, then, is to answer a set of antecedent questions: “who” must be treated as equal to whom, “with respect to what” rights or interests, and “how”? Martha Minow has provided rubrics for addressing these questions in ways that uncover problematic applications of the principle of equality. The chapter addresses the distinct versions of equality presupposed in claims for Douglas NeJaime’s arguments for same-sex marriage, Julie C. Suk’s social and economic approach to sex-based equality, and Megan A. Conway’s and Zanita E. Fenton’s ambitious explorations of the value of equality in the law of disabled persons. The chapter concludes that law can be directly responsive to some claims of inequality, but that other claims will require something other than law.

Those interested in studying the relationship between law and social movements have a wide variety of theoretical and empirical research to draw on, from both social movement theory and legal studies. Yet these disparate studies of law and social movements rarely engage with each other. In this chapter, we review current developments in research on law and social movements and summarize the chapters in this special issue. These chapters offer insight into the multivalent nature of law for social movements, the factors shaping movements’ strategic engagements with the legal system, the relationship between law and identity for social movement activists, and the complex role that cause lawyers play in social movement processes and dynamics.

This chapter examines the relationship between constitutional guarantees of sex equality, understood as prohibiting unequal treatment between men and women, and the constitutional protections of maternity. Textual guarantees of sex equality are nearly universal in constitutions around the world, and many constitutions in Europe, Latin America, and Asia also include provisions guaranteeing mothers the special protection of the state. In the United States, by contrast, the special treatment of mothers has long been contested as a threat to gender equality, and the efforts to add a sex equality amendment to the U.S. constitution have failed over the past century because of conflicts about the status of motherhood. This study traces the origins and jurisprudential development of maternity clauses in European constitutions to shed light on the possibility of synthesizing maternity protection with a constitutional commitment to gender equality.

The chapter intervenes in the debate among scholars of legal impact about the extent to which law can change society. Reformers, aims are frustrated when targets of law respond with resistance to court decisions, especially where mechanisms to enforce case law are weak (Hall, 2010; Klarman, 2006; Rosenberg, 1991). Even when law’s targets abide by a law, however, other important studies have demonstrated that organizations can leverage ambiguous language to craft policies in compliance that further their aims (Barnes & Burke, 2006; Edelman, 2016; Lipson, 2001). This chapter examines a case in which a state constitutional provision banning affirmative action was written in relatively unambiguous language and one of its targets announced its intention to comply. Through extensive interviews with University officials, this chapter examines the University of Michigan’s use of financial, technological, and political resources to follow the language of the law while still blunting its impact. These findings suggest that to understand law’s impact on society, we need to reconceive compliance and not only take the clarity of the law and its enforcement mechanisms into account but also attend to the goals, resources, and practices of the groups it targets.