The Queer Case of the LGBT Movement

45 Pages Posted: 25 Apr 2019

See all articles by Justin O'Neill

Justin O'Neill

University of California, Berkeley, School of Law - Jurisprudence and Social Policy Program

Date Written: August 29, 2018


In Summer 2018, Supreme Court Justice Anthony Kennedy announced his retirement. Commentators immediately began to assess and express concern about what his departure would mean for liberal legal priorities. Yet, sociolegal scholars have long been skeptical of the ability of the courts to push forward significant social change. Why, then, the panic over Justice Kennedy's retirement? This Article suggests one answer is that the rapid success of the marriage equality movement revitalized liberals' faith in the courts. Yet, what made marriage equality particularly amenable to litigation success? This article explores the history of marriage equality in the courts and argues that four factors stand out as relevant: (1) the role that individual litigants, deciding to bring lawsuits disconnected from the central movement, played in pushing the movement forward; (2) the privileged nature of marriage litigants and the claims they were making; (3) the particularly legal nature of the social relationship of marriage; and (4) the existence of Anthony Kennedy on the Supreme Court during the period in which LGBT rights litigation occurred. This article suggests that a deeper understandingof the history of the marriage equality litigation movement will lead to richer conversations about the role that law and courts play in social change.

Keywords: marriage equality, law and social change, social movements, lgbt

Suggested Citation

O'Neill, Justin, The Queer Case of the LGBT Movement (August 29, 2018). 41 University of Hawaii Law Review 27 (2018). Available at SSRN:

Justin O'Neill (Contact Author)

University of California, Berkeley, School of Law - Jurisprudence and Social Policy Program ( email )

Berkeley, CA 94720
United States

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