Lawyering for Marriage Equality

98 Pages Posted: 12 May 2010 Last revised: 9 Mar 2011

Scott L. Cummings

University of California, Los Angeles (UCLA) - School of Law

Douglas NeJaime

Yale University - Law School

Date Written: May 11, 2010

Abstract

Critics of litigation seeking to establish the right of same-sex couples to marry argue that it has produced a backlash undercutting the movement for marriage equality. In this account, movement lawyers emerge as agents of backlash: naively turning to the courts ahead of public opinion, ignoring more productive political alternatives, and ultimately hurting the very cause they purport to advance by securing a court victory that mobilizes opponents to repeal it. This Article challenges the backlash thesis through a close analysis of the California case, which contradicts the portrait of movement lawyers as unsophisticated rights crusaders and casts doubt on the causal claim that court decisions upholding same-sex couples’ right to marry have harmed the movement.

Keywords: Marriage equality movement in California, analysis of 'backlash' theory, lawyers as activists, legislative history

Suggested Citation

Cummings, Scott L. and NeJaime, Douglas, Lawyering for Marriage Equality (May 11, 2010). UCLA Law Review, Vol. 57, p. 1235, 2010; Loyola-LA Legal Studies Paper No. 2010-12; NYLS Clinical Research Institute Paper No. 09-10-31; UCLA School of Law Research Paper No. 10-09. Available at SSRN: https://ssrn.com/abstract=1604641

Scott L. Cummings (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

Douglas NeJaime

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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