Same-Sex Marriage and Backlash: Constitutionalism through the Lens of Consensus and Conflict
Max Weber Lecture by
Reva Siegel (Yale University)
16 March 2016, 17:00-19:00
Summary by MW Fellow Byliana Petkova (LAW 2015-2017)
Yale Law School Professor Reva Siegel’s lecture, titled ‘Same-Sex Marriage and Backlash: Constitutionalism through the Lens of Consensus and Conflict’, gave a rich account of social mobilization and counter-mobilization, the role of judicial review and federalism in the United States. In the decades before the United States Supreme Court recognized the right of same-sex couples to marry in Obergefell v. Hodges, Americans disdained, denounced, and debated same-sex marriage. When state courts recognized the right of same-sex couples to marry, opponents passed laws and state constitutional amendments that defined marriage as the union of a man and a woman. Reva argues that this fierce conflict provoked argument about the capacity of courts to defend minority rights.
Critics argued that judicial judgments that shut down politics were counterproductive and provoked a backlash that exacerbated political polarization. Conversation about the backlash ranged widely from academics and advocates to judges. These “realist” accounts of judicial review depicted courts as majoritarian institutions whose authority is tied to public consensus.
In her lecture, Reva argued that the backlash narrative and the consensus model of constitutionalism on which it rests simultaneously underestimates and overestimates the power of judicial review. The Court’s decision in Obergefell was possible not simply because public opinion changed, but also because the 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. Constitutions do not merely reflect consensus; they also structure conflict. Reva employed concepts of constitutional culture to explore how constitutions can give contested beliefs legal form and structure conflict in ways that help sustain community in disagreement.
Ultimately, Reva espouses a variation of popular constitutionalism that evokes a responsive view of the law, one that is both constitutional and constitutive for the communities we live in. Her perceptive, if instrumental view of the law, challenges the common understanding of judicial supremacy.