American Journal of Sociology

Out of the Closets and into the Courts: Legal Opportunity Structure and
Gay Rights Litigation. By Ellen Ann Andersen. Ann Arbor: University
of Michigan Press, 2005.

Mary Bernstein
University of Connecticut

Out of the Closets and into the Courts by Ellen Ann Andersen is a superb
analysis of the relationship between the law and social movements. Using
Lambda as a case study, Andersen develops the concept “legal opportunity
structure” (LOS) to answer the questions “Under what circumstances are
gay rights claims more or less likely to prevail in court?” and “What impact
does winning—or losing—in court have on the real lives of lgb people?”
(p. 3). Andersen analyzes sodomy law reform, antigay initiatives, and
same-sex marriage to illustrate the explanatory power of her theoretical
framework.
In chapter 1, Andersen outlines the four elements of the LOS, which
includes access to the law based on the legal requirement of standing, the
configuration of elite alignments, the alliance and conflict system, and
legal frames. According to Andersen, the key difference between the LOS
and the political opportunity structure (POS) is the frames that are used.
Whereas movements seeking change in the political system rely on dom-
inant cultural themes, those seeking legal change are constrained by the
available “legal stock.” The law shapes “the kinds of legal claims that can
be made as well as the persuasiveness of those claims.” As the legal stock
shifts, opportunities for social movements may increase or decrease, re-
gardless of the social stock. Andersen points out that legal and cultural
frames are “mutually constitutive” with no clear hierarchy between them
(p. 13).
In chapter 2, Andersen argues that changing legal frames provided by
privacy cases in the courts and conflicts among legal elites regarding
whether or not to maintain criminal sanctions for consensual same-sex
sexual relations, coupled with the Stonewall riots, set the stage for legal
mobilization on behalf of gay rights. Chapter 3 illustrates the ways that
legal and cultural frames structured the types of cases that Lambda en-
gaged in over time.
In chapters 4 and 5, Andersen analyzes why gay rights advocates lost
Bowers v. Hardwick in 1986 but won Lawrence v. Texas in 2003. Andersen
reconstructs litigators’ rationales for bringing the doomed Bowers to the
U.S. Supreme Court as an example of the difficulty that activists have in
reading opportunity structures. By 2003, a shift in cultural frames had
made the impact of sodomy laws on the lives of LGB people more com-
prehensible than it was in 1986. In addition, the normalization of and
federal protection for people with AIDS undermined the rhetorical threat
that AIDS had once posed, and public tolerance toward lesbians and gay
men had increased. This cultural shift cast the premise that homosexual

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 Book Reviews

activity was completely unrelated to “family, marriage, [and] procreation”

(Bowers, quoted on p. 120) into doubt.
In chapter 6, Andersen compares the passage of the antigay Amendment
2 in Colorado and the U.S. Supreme Court’s decision to invalidate the
amendment as a way to illustrate differences in the structure of legal and
political opportunities. These differences “include the mechanics of the
decision-making [i.e., the referendum] process, the decision makers them-
selves, the alliance and conflict system, and the frames available to pro-
and antigay rights activists.” Whereas citizen decision making relies on
“sound-bite” slogans, decision making by the courts provides a setting
where more elaborate discussion of legal issues can take place. Lesbian
and gay rights advocates are on more equal ground in the courts where
much antigay sloganeering can be exposed as “the legal equivalent of
psycho-babble” (p. 172), meaningless in the face of the law.
In chapter 7 and the afterward, Andersen assesses the impact of the
same-sex marriage cases in Hawaii, Alaska, and Vermont. Andersen ar-
gues that court decisions “rarely produce clear wins or losses for advocates
of sociopolitical reform. Instead, they produce opportunities for action on
the part of both reformers and their opponents, opportunities that may
or may not be exploited successfully.” Access to citizen decision making,
actions by the courts, the configuration of political elites, and prior poltical
organizing explain the different outcomes. Andersen contends that from
one perspective, same-sex marriage litigation has produced favorable out-
comes, such as shifts in public opinion and increased mobilization. Yet
from another perspective, the backlash that has resulted from the legal
pursuit of same-sex marriage has produced new legal barriers to LGB
rights that will take decades to overcome. Andersen concludes in chapter
8 by arguing that “courts do not have the capacity to produce social change
when their decisions diverge too radically from the values and expectations
of the other two branches of government” (p. 218).
The concept of LOS is an important contribution to the social move-
ments and sociolegal literature. Yet despite efforts to keep the POS and
LOS separate, Andersen sometimes conflates the two, as in her periodi-
zation of sodomy law reform. Nonetheless, these are minor concerns, and
Andersen has produced a tour de force that will become standard reading
in both graduate and undergraduate courses on political sociology, social
movements, the law, and lesbian and gay studies.

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