Courts and the Politics of Backlash: Marriage Equality Litigation, Then and Now
November 01, 2009
Bibliography: Jane S. Schacter, Courts and the Politics of Backlash: Marriage Equality Litigation, Then and Now, 82 Southern California Law Review 1153 (2009) / Stanford Public Law Working Paper, No. 1564301
Groundbreaking decisions on same-sex marriage, particularly those from the Hawaii, Massachusetts, and California supreme courts, have generated widespread political backlash in the form of state constitutional amendments and statutes, the federal Defense of Marriage Act (“DOMA”), a proposed federal constitutional amendment, and more. By contrast, the first state supreme court decision to strike down a ban on interracial marriage - Perez v. Sharp, decided by the California Supreme Court in 1948 - was met with barely a political whimper, even though it made international headlines and came decades before broad public acceptance of interracial marriage. This Article identifies that puzzling difference, tells the political story of the cases, explores factors that might explain the disparity in political and public reactions, and uses the contrasting case studies to elucidate the political dynamics that surround courts today and to suggest directions for the future study of antijudicial backlash.