Depicting Minority Petitioners’ Lives in Appellate Opinions

Abstract

The majority opinions in two Supreme Court cases decided in 2015, Obergefell v. Hodges and Mellouli v. Lynch, discussed the lives of petitioners -- members of minority groups seeking relief against state exercises of power -- in remarkable depth. This Essay seeks to highlight the similarities between the characterizations of the petitioners in the two opinions, to explore the function of such depictions in appellate opinions, and to suggest that such descriptions require careful thought because they may, counter-intuitively, subvert counter-majoritarian goals.

Obergefell’s and Mellouli’s representations of petitioners’ lives are, ultimately, a challenge to judges’ choices in omitting or including factual narrations. Court of appeals opinions in the same-sex marriage cases between United States v. Windsor and Obergefell provide a range of narrative approaches. Opinions may choose for expressive reasons to draw attention to the extra-legal lived experiences of minority petitioners or decide, instead, to include less detail. The choice, though, ought to be both deliberate and consistent. Selectively describing the aspects of minority petitioners’ lives that implicate sameness and achievement of broader community ideals may undermine counter-majoritarian ends by suggesting that these characteristics are prerequisites to rights-regarding legal determinations.

Keywords: Appellate opinions, countermajoritarian, minority, rhetoric, legal rhetoric, Obergefell, Mellouli, model minority, covering