UC Berkeley

In public discourse the notion of civil rights is intractably linked to litigation and the courts, a clear by-product of the Civil Rights Movement and other court-based rights battles. Yet, despite an abundance of court decisions, and a seemingly unflappable public sentiment that courts protect rights, scholars remain skeptical of the courts' ability to advance social change, particularly change that involves minority rights. These critics examine the degree to which court decisions are able to transform social norms, shift attitudes or modify public institutions and find that, while symbolically meaningful, many of the courts' most salient rights decisions did not result in significant policy changes. Students of the courts are left with the impression that, in the absence of the "sword and the purse," advocates who use the courts to advance the claims of unpopular minorities are vulnerable to opposition movements that can use majoritarian institutions to thwart civil rights efforts. While this is undoubtedly true in some, if not many instances, I examine one as-of-yet-unexplored tactic used by court-centered civil rights advocates to achieve substantive and significant, rather then merely symbolic, victories for their clients--that is the use of "below the radar" approaches to achieving or enforcing civil rights.

I start from the premise that much of the literature on backlash to court decisions ignores the many instances where disenfranchised minorities make measurable gains through the courts and have successfully withstood backlash. This literature, I argue, suffers from two problems. First, by focusing almost exclusively on constitutional issues, the scholars miss an opportunity to explore the transformative potential of statutory, administrative, or common law claims. (Melnick 1994). Second, and relatedly, by treating litigation as a single strategy (rather than a category of strategies linked by institutional setting), many scholars ignore the strategic choices made by interest groups and activists who use the courts--strategies deliberately designed to avoid backlash and promote successful implementation.

After summarizing the aftermath of a well-known instance of high-profile litigation, same sex marriage, this project introduces two policy arenas in which minority rights were advanced due in large part to the use of the litigation-based strategies designed to reduce the public's awareness of the case or issue and avoiding or diminishing backlash. In each of these two areas of law--same-sex parenting rights and group housing for the disabled--advocates use "below the radar" tactics to keep their issue off the public agenda, thereby diminishing the risk of backlash.