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

Abstract

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.