Community in Conflict: Same-Sex Marriage and Backlash

42 Pages Posted: 10 Feb 2017 Last revised: 5 Jun 2018

Reva Siegel

Yale University - Law School ; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: February 9, 2017

Abstract

Did backlash to judicial decisions play a destructive role in debates over same-sex marriage, as is so often claimed? This article questions assumptions about consensus and constitutionalism that undergird claims about judicial backlash, and explores some constructive functions of conflict in our constitutional order. The debate over same-sex marriage illustrates that conflict, constrained by constitutional culture, can forge meanings and bonds that strengthen the constitutional order. Constitutional culture, on this account, includes the understandings about role that guide interactions among citizens and officials who disagree about the Constitution’s meaning. Analyzing the long-running conflict over same-sex marriage with attention to these role-based understandings leads us differently to evaluate the power and limits of judicial review.

In this article I argue that the backlash narrative and the consensus model of constitutionalism on which it rests simultaneously underestimate and overestimate the power of judicial review. The Court’s decision in Obergefell was possible not simply because public opinion changed, but also because 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. Conflict of this kind is enabled, and constrained, by the role-based understandings of constitutional culture.

A conclusion invokes anxieties attending the election of Donald Trump to illustrate how critical the perpetually contested role constraints of constitutional culture are in sustaining our constitutional order.

Keywords: Courts, Counter-Majoritarian, Social Movements, Consensus, Conflict, Constitutional Culture, Backlash, Same-Sex Marriage

Suggested Citation

Siegel, Reva B., Community in Conflict: Same-Sex Marriage and Backlash (February 9, 2017). UCLA Law Review, Vol. 64, 2017; Yale Law School, Public Law Research Paper No. 595. Available at SSRN: https://ssrn.com/abstract=2914674 or http://dx.doi.org/10.2139/ssrn.2914674

Reva B. Siegel (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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