Same-sex marriage and backlash : constitutionalism through the lens of consensus and conflict

Abstract

In the decades before the United States Supreme Court recognized the right of same-sex couples to marry in Obergefell v. Hodges, Americans disdained, denounced, and debated same-sex marriage. When state courts recognized the right of same-sex couples to marry, opponents passed laws and state constitutional amendments that defined marriage as the union of a man and a woman. This fierce conflict provoked argument about the capacity of courts to defend minority rights. Critics argued that judicial judgments shutting down politics were counterproductive and provoked a backlash that exacerbated political polarization. Conversation about the backlash ranged widely from academics and advocates to judges. These “realist” accounts of judicial review depicted courts as majoritarian institutions whose authority is tied to public consensus. In this lecture, I will argue that the backlash narrative and the consensus model of constitutionalism on which it rests simultaneously underestimates and overestimates the power of judicial review. The Court’s decision in Obergefell was possible not simply because public opinion changed, but also because the struggle over the courts helped change public opinion and forge new constitutional understandings. Even so, Obergefell has not ended debate over marriage but instead has channeled it into new forms. Constitutions do not merely reflect consensus; they also structure conflict. I employ concepts of constitutional culture to explore how constitutions can give contested beliefs legal form and structure conflict in ways that help sustain community in disagreement.