98 Pages Posted: 12 May 2010 Last revised: 9 Mar 2011
Date Written: May 11, 2010
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: 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