This paper focuses on how gay rights activists had no real choice but to use the court system to advance marriage rights for same-sex couples because they were unable to use the political process to effectively rebut the claim that gays and lesbian were harmful to children. Part I begins with an overview of the ways in which the initiative process has been used to limit gay rights and prevent marriage equality. It then details how, in contrast to the political process, courts have been more receptive to advancing marriage rights for same-sex couples. Part II details Walter Fisher's narrative paradigm as a theory of communication and rhetoric, which provides a theoretical basis for why courts are more likely to challenge arguments against same-sex marriage while voters are likely to adopt arguments if they ring true to their own experiences and values. Part III applies Fisher's theory to show how gay rights opponents, in their first initiative campaigns to rescind gay rights, effectively developed a narrative that gay people were harmful to children. This narrative was subsequently cemented into the nation's collective psyche through the HIV/AIDS crisis, the rise of the Moral Majority, the Catholic Church molestation scandal, and the Boy Scouts' ban on gay members. Part IV uses the California Proposition 8 campaign and subsequent federal trial to provide a detailed example of the difference in the way voters and courts evaluate the narrative that gay people are harmful to children, with the narrative swaying voters but being rejected by the court.
21 Duke J. Gender L. & Pol'y 21 (2013).