Obama's Conversion on Same-Sex Marriage: The Social Foundations of Individual Rights

60 Pages Posted: 31 Jul 2017 Last revised: 26 Mar 2018

See all articles by Robert L. Tsai

Robert L. Tsai

Boston University School of Law

Date Written: March 21, 2018

Abstract

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working within a broader professional and political culture that respects the role of other branches of government, including the prerogative of the courts to interpret the laws. To illustrate these insights, this essay examines the Obama administration’s shift in position on the federal Defense of Marriage Act (DOMA) and its subsequent articulation of a theory of equality that encompasses same-sex marriage. This episode should be understood, in part, as an act of presidential leadership over individual rights, though presidentially-instigated rights differ from judicially-derived ones. Recognizing this model of leadership doesn’t require embracing executive supremacy, but it does suggest we ought to emphasize institutional dynamics over party politics or social movements in explanations of constitutional change.

Keywords: DOMA, Obama, gay rights, equality, equal protection, marriage, same-sex marriage, constitution, constitutional law, jurisprudence, president, courts, executive, Congress, Supreme Court, Eric Holder, Department of Justice

Suggested Citation

Tsai, Robert L., Obama's Conversion on Same-Sex Marriage: The Social Foundations of Individual Rights (March 21, 2018). Connecticut Law Review, Vol. 50, 2018, American University, WCL Research Paper No. 2017-16, Available at SSRN: https://ssrn.com/abstract=3009740

Robert L. Tsai (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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