Suchergebnisse

Critiques 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.

"What makes a Supreme Court decision a landmark? It has to have an immediate and profound effect on some aspect of people's daily lives, and it has to raise constitutional and political issues that go far beyond the immediate questions before the Court. Brown v. Board of Education was such a decision for the 1950s, and Roe v. Wade for the 1970s. It is already clear to constitutional scholars that Obergefell v. Hodges, which legalized same-sex marriage throughout the country, is such a case for our era. Yet the majority opinion, written by Justice Anthony Kennedy, satisfies hardly anyone. In this book, Jack Balkin has recruited thirteen leading scholars to serve as pretend Supreme Court justices, and together with himself as Chief Justice, they have produced twelve opinions that reflect, as the title has it, what the Court should have said. Including a majority opinion that is a masterpiece of doctrinal clarity, plus a range of both concurring and dissenting opinions, What Obergefell v. Hodges Should Have Said is a brilliant exploration of constitutional paths not taken. It will make compelling reading for constitutional scholars, students, those interested in the issues surrounding same-sex marriage, and anyone with an interest in constitutional reasoning at the highest level"--

Frontmatter -- Contents -- Preface -- PART I OBERGEFELL V. HODGES: A CRITICAL INTRODUCTION -- 1. The Long and Winding Road to Marriage Equality -- 2. A Player, Not a Mirror; A Catalyst, Not a Brick Wall -- 3. Rewriting Obergefell: A Guide to the Opinions -- PART II REVISED OPINIONS IN OBERGEFELL V. HODGES -- Jack M. Balkin (judgment of the Court) -- Douglas NeJaime and Reva B. Siegel (concurring) -- Andrew Koppelman (concurring) -- Catherine Smith (concurring) -- William N. Eskridge Jr. (concurring in the judgment) -- Katherine Franke (concurring in the judgment) -- Melissa Murray (concurring) -- Sherif Girgis and Robert P. George (dissenting) -- Helen M. Alvaré (dissenting) -- John C. Harrison (dissenting) -- Jeremy Waldron (dissenting) -- Comments from the Contributors -- Appendix: Th e Constitution of the United States of America: Selected Provisions -- Obergefell v. Hodges: A Selected Bibliography -- About the Contributors -- Acknowledgments -- Table of Cases -- Index