Backlash Politics: How Constitutional Litigation Has Advanced Marriage Equality in the United States

Article excerpt

INTRODUCTION

There are few issues that excite lawyers and law students more than same- sex marriage recognition. The sheer drama of the issue is hard to match. A generation ago, so-called "homosexuals" cowered in the closet, hated or scorned by most Americans and fearful that any open relationship would lead to loss of employment, social ostracism, loss of professional license (including the license to practice law), police harassment, and possibly even imprisonment and rape within prison. Today, lesbian, gay, bisexual, and transgender (LGBT) Americans in states like Massachusetts face little or no state discrimination and enjoy all the same legal rights and duties as straight persons. That equality extends to civil marriage in Massachusetts and eight other states, as well as the District of Columbia.1 Another ten states recognize civil unions or their rough equivalent for same-sex couples.2

LGBT people have moved from outlaws to in-laws in a generation. That is as dramatic a change in fundamental social attitudes as this nation has ever seen. For lawyers, the gay rights movement ranks alongside the civil rights and women's rights movements as one of the landmark social movements of the last century. Like those previous social movements, the gay rights movement has contributed to the ongoing transformation of family law and has successfully deployed constitutional litigation, as well as legislation to advance its agenda. Unlike the civil rights and women's rights movements, however, most marriage equality litigation has been carried out under state constitutions rather than the U.S. Constitution, though that is rapidly changing. The gay marriage analog to the U.S. Supreme Court's landmark decision in Loving v. Virginia3 is the Massachusetts Supreme Judicial Court's 2003 decision in Goodridge v. Department of Public Health.4

This Article will provide an account of this constitutional success story but will also analyze a cautionary narrative. Specifically, I shall consider Gerald Rosenberg's thesis that courts cannot effect social change, a thesis Professor Rosenberg has extended to the marriage equality litigation.5 His general argument is that "courts can almost never be effective producers of significant social reform. At best, they can second the social reform acts of the other branches of government."6 Consistent with conventional wisdom among legal academics, Rosenberg maintains that courts have neither the capacity nor the legitimacy to craft and implement complicated and far-reaching changes in social policy.7 His more distinctive point is that when courts innovate through recognition of important constitutional rights, they are not only ineffectual but counterproductive, because they deflect social movement energy from more productive channels and produce "backlash" from energized countermovements.8

Thus, in the 2008 edition of his book, Hollow Hope, Rosenberg argued that Goodridge and other state court decisions were incomplete "victories" that left lesbian and gay couples with only some of the thousands of marital rights enjoyed by married heterosexual couples.9 A primary reason for this was backlash: "As a result of litigation, same-sex marriage proponents face legislative and constitutional obstacles on both the state and federal level that did not exist before they turned to litigation," including the federal Defense of Marriage Act (DOMA), enacted as a direct response to Hawaii's constitutional litigation.10 While acknowledging that one might consider the combined results as "two steps forward, one step back," Rosenberg considered the results to be more accurately described as "one step forward, two steps back."11

Professor Rosenberg's learned analysis has been subjected to strong critique. My colleagues, Professors Linda Greenhouse and Reva Siegel, for example, take Rosenberg and other backlash theorists to task for their analysis of Roe v. Wade, which those theorists read as creating a tidal wave of pro-life opposition to a woman's right to choose abortion. …

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