Did backlash to judicial decisions play a destructive role in debates over same-sex marriage, as was 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.