Lawyering for Marriage Equality

Abstract

Critics of litigation seeking to establish the right of same-sex couples to marry argue that it has produced a backlash undercutting the movement for marriage equality. In this account, movement lawyers emerge as agents of backlash: naively turning to the courts ahead of public opinion, ignoring more productive political alternatives, and ultimately hurting the very cause they purport to advance by securing a court victory that mobilizes opponents to repeal it. This Article challenges the backlash thesis through a close analysis of the California case, which contradicts the portrait of movement lawyers as unsophisticated rights crusaders and casts doubt on the causal claim that court decisions upholding same-sex couples’ right to marry have harmed the movement.

About the Author

Scott L. Cummings is a Professor of Law at the UCLA School of Law. Douglas NeJaime is an Associate Professor of Law at the Loyola Law School, Los Angeles. |Scott L. Cummings is a Professor of Law at the UCLA School of Law. Douglas NeJaime is an Associate Professor of Law at the Loyola Law School, Los Angeles.

By uclalaw