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Backlash Politics: How Constitutional Litigation Has Advanced Marriage Equality in the United States, 93 Boston University Law Review 275 (2013)


There are few issues that excite lawyers and law students more than samesex

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.' Another ten states recognize

civil unions or their rough equivalent for same-sex couples.

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.

Virginia is the Massachusetts Supreme Judicial Court's 2003 decision in

Goodridge v. Department ofPublic Health.

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