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.
Date of Authorship for this Version
Eskridge, William N. Jr, "Backlash Politics: How Constitutional Litigation Has Advanced Marriage Equality in the United States" (2013). Faculty Scholarship Series. Paper 4796.