44 Pages Posted: 31 Jul 2017
Date Written: July 27, 2017
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. It explains why the episode should be understood in part as an act of presidential leadership over individual rights, and shows how presidentially-instigated rights differ from judicially-derived ones. The essay concludes by defending the model of leadership from the charge of executive supremacy and distinguishing it from leading accounts of constitutional change that give primacy to party politics or social movements.
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: Suggested Citation
Tsai, Robert L., Obama's Conversion on Same-Sex Marriage: The Social Foundations of Individual Rights (July 27, 2017). Connecticut Law Review, Vol. 50, 2017. Available at SSRN: https://ssrn.com/abstract=3009740