Balkinization: Obergefell v. Hodges: A Critical Introduction

Obergefell v. Hodges: A Critical Introduction

I have posted my latest piece, Obergefell v. Hodges: A Critical Introduction, on SSRN. Here is the abstract:

This essay in two chapters is adapted from the introduction to a forthcoming collection on Obergefell v. Hodges, the 2015 Supreme Court decision that recognized the right of same-sex marriage.

The first chapter tells the story of the dialectical interactions between the movement for gay rights, political actors, and state and federal courts that eventually led to recognition of marriage equality in the United States. Arguments for marriage equality, which were not originally central to the gay rights movement, gradually became important as the movement experienced a series of defeats and victories. The interaction of state court litigation with national politics, the Republican Party’s use of same-sex marriage as a wedge issue, and the interplay among federal and state institutions gradually moved arguments for marriage equality from "off the wall" to "on the wall." Progress in the courts and public opinion also shaped each other. Support for same-sex marriage reached fifty percent a few years before the Supreme Court struck down the Defense of Marriage Act, and had climbed to sixty percent by the time the Court decided Obergefell.

The second chapter then theorizes this history. Two common accounts of the judiciary in a democracy are the Court as Mirror and the Court as Brick Wall. In the story of the Court as Mirror, the Supreme Court is essentially a majoritarian institution that reflects what is going on in the larger society. In the story of the Court as Brick Wall, the Supreme Court is a counter-majoritarian institution that cuts off democratic deliberation and arbitrarily imposes its will on the political system.

The campaign for marriage equality suggests that both pictures are inadequate. Instead of being simply a mirror of society or a brick wall that impedes democracy, the judiciary—including both state and federal courts at all levels—operates as a player and a catalyst in democratic politics. Courts respond to political agendas and structure political agendas. They catalyze democratic politics by shaping the terms of debate and by legitimating certain positions. Political actors, in turn, use court decisions either as spurs or as leverage for mobilizations and counter-mobilizations. Sometimes political actors build on the work of courts to assert what the Constitution means. Other times they talk back to courts or use them as convenient foils to make their constitutional claims.

American constitution culture features a system of democratic constitutionalism as much as a system of judicial review. In fact, the two phenomena depend on each other.

Posted 9:30 AM by JB [link]