Framing (In)Equality for Same-Sex Couples

Abstract

This Essay shows how LGBT rights advocates successfully transformed civil unions and domestic partnerships from a sign of equality into a marker of inequality. The deployment of constitutional frames, and the articulation and resolution of those frames in court, played a significant role in this shift. Constitutional commitments provided the language through which advocates could embrace civil unions and domestic partnerships as ways to provide equality for same-sex couples and yet later reject those designations as badges of inequality. Advocates successfully transformed these nonmarital alternatives from constitutional remedies to constitutional violations. At crucial moments, courts played significant roles in this transition, providing venues for advocates to announce, hone, and resolve competing frames. Advocates, in turn, integrated courts’ treatment of those frames into their discursive strategies. Ultimately, the concepts of equality and inequality and their relationship to same-sex couples gained — and changed — meaning through court-based campaigns. To chart this trajectory, this Essay attends to four crucial judicial decisions along the path from equality to inequality in the framing of civil unions and domestic partnerships: (1) the 1999 Vermont Supreme Court Baker v. State decision, (2) the 2003 Massachusetts Supreme Judicial Court Goodridge v. Department of Public Health decision, (3) the 2005 New Jersey Supreme Court Lewis v. Harris decision, and (4) the 2010 Northern District of California Perry v. Schwarzenegger decision.