Yale Law Journal Forum, Vol. 125, p. 136, 2015
21 Pages Posted: 4 Nov 2015
Date Written: November 2, 2015
This short essay critically appraises the plaintiff selection in Obergefell v. Hodges and other significant intimacy cases. Deliberate plaintiff selection by lawyers and activists played a key role in the ascent of marriage equality, particularly for a Court that has been acutely aware of public opinion and concerned about its historic legacy. Yet the carefully curated Obergefell plaintiffs also reflect a missed opportunity to celebrate the diversity of all families. This Essay presents an analysis of these “perfect plaintiffs,” identifying four qualities that make them generically appealing, especially to a predominantly straight audience: they are all-American; they seem to be asexual; the vast majority have children; and all are (purportedly) non-political. There are no outlaws here — Stonewall has become Stepford.
This public face of same-sex marriage does not accurately represent the realities of either gay or straight households, and the same qualities that render the “faces” of marriage equality so appealing risk undercutting broader claims for familial recognition. This schema reveals some deep-rooted assumptions about what a family should look like and what is an appropriate path to social change, simultaneously reifying these norms. This Essay argues that fronting straight-acting plaintiffs leaves intact the problematic traditional marital hegemony; squanders the potential of diversity to enrich all families; and risks perpetuating the harmful norms that lesbian and gay families and cultures are second-best. This is not to deny the skilled and dedicated advocacy that led to marriage equality, undoubtedly an enormous victory for families. Nonetheless, as scholars and advocates turn to the aftermath of the Obergefell decision, a more representative and varied depiction of families can open up possibilities for the myriad ways people come together, love, and care for each other.
Keywords: Obergefell, same-sex marriage, plaintiff selection, cause lawyering, impact litigation, lesbian and gay families, social change
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