Constitutional Change, Courts, and Social Movements

In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin\u27 furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution\u27s promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and court decisions in turn shape the claims and visions of those movements and alter the political terrain on which those movements operate. By placing social movements, rather than courts, at the center of his analysis, Balkin ultimately redeems courts, demonstrating their lively, legitimate, and contingent role in the process of constitutional and social change. In doing so, he challenges influential constitutional scholarship that takes a generally pessimistic view of courts

Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage

In the wake of the celebration of the U.S. Supreme Court\u27s decision in United States v. Windsor, it seems obvious that the LGBT movement is intent on securing marriage. But the relationship between LGBT advocacy and marriage was not always so clear. In fact, before the movement began to make explicit claims to marriage in the 1990s, leading advocates engaged in a vigorous debate about whether to seek marriage. This debate went beyond mere strategic disagreement and instead focused on ideological differences regarding the role of marriage and its relationship to LGBT rights, family diversity, and sexual freedom. Those opposing the turn to marriage urged the movement to continue pursuing nonmarital rights and recognition, including domestic partnership, as a way to decenter marriage for everyone. Critics of today\u27s marriage equality advocacy point to this history as a lost alternative past worthy of reclamation. Today\u27s marriage-centered movement, they argue, channels relationships into traditional forms and marginalizes those who fail to fit the marital mold. Instead of continuing down this road, these critics contend, movement advocates should recover their earlier roots and embrace pluralistic models of family and intimacy outside of marriage. This Article challenges the assumptions that structure today\u27s debate over the role of marriage in LGBT advocacy. It does so by uncovering the centrality of marriage even during the time when LGBT advocates worked entirely outside of marriage and built nonmarital regimes

Marriage Inequality: Same-Sex Relationships, Religious Exemptions, and the Production of Sexual Orientation Discrimination

As more states consider marriage recognition for same-sex couples, attention turns to the conflict between marriage equality and religious liberty. Legal scholars are contributing substantially to the debate, generating a robust academic literature and writing directly to state lawmakers urging them to include a marriage conscience protection containing a series of religious exemptions in marriage equality legislation. Yet the intense scrutiny of religious freedom specifically in the context of same-sex marriage obscures the root of the conflict. At stake is the central role of relationships in expressing one\u27s sexual orientation; same-sex relationships constitute lesbian and gay identity, and religious objections arise largely in response to such relationships. Marriage is merely one form of sexual orientation identity enactment, and religious objections to same-sex marriage are merely a subset of objections to sexual orientation equality

New Entrants Bring New Questions

In a relatively short period of time, the lesbian, gay, bisexual, and transgender (LGBT) movement has moved from the margins to the center. The movement\u27s push for equality has attracted the attentionboth sympathetic and oppositional--of important groups and individuals outside of the movement. Christian Right advocates, on the one hand, and government lawyers and private nonmovement lawyers, on the other, now invest heavily in litigation implicating LGBT rights. This mainstreaming of the LGBT movement yields significant issues for sexual orientation and gender identity scholars. In this Essay, I will first show how the LGBT rights context provides rich new material with which to explore decades-old debates and pressing new questions in sociolegal scholarship. Then, I will explain how the addition of new voices and the increasing acceptance of LGBT equality norms present significant substantive issues relating to religious liberty and antidiscrimination law

Marriage, Cruising, and Live in Between: Clarifying Organizational Positionalities in Pursuit of Polyvocal Gay-Based Advocacy

Varying political affiliations and theoretical leanings exist in the gay, lesbian, bisexual, and transgender (GLBT) community, hardly surprising in a population that encompasses middle-class white gay men and butch leather dykes alike. Yet many GLBT organizations purport to speak on behalf of all of their very different constituents. How successfully gaybased organizations reconcile these competing interests has become a concern for academics and activists, many of whom fear the increasing homogenization of the gay movement and the resulting marginalization of dissenting viewpoints. The growing clamor over same-sex marriage provides an illustration of this trend. While major GLBT organizations litigate for the right to marry, apparently at the behest of those they seek to represent, scholars like Michael Warner worry that marriage rights for same-sex couples would only serve to strengthen the normalizing power of marriage and, while bringing the Good (married) Gay into the heteronormative fold, to consolidate the Bad (unmarried) Queer\u27s position in the margins. Under Warner\u27s conception of the current gay rights movement, the pursuit of marriage necessarily comes at the expense of articulating alternative, queer goals. Although some scholars frame the debate in such absolute terms, an exploration of the actual work being done on the ground shows that samesex marriage occupies a more complex and tenuous position in gay-based advocacy

Constitutional Change, Courts, and Social Movements

In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution\u27s promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and court decisions in turn shape the claims and visions of those movements and alter the political terrain on which those movements operate. By placing social movements, rather than courts, at the center of his analysis, Balkin ultimately redeems courts, demonstrating their lively, legitimate, and contingent role in the process of constitutional and social change. In doing so, he challenges influential constitutional scholarship that takes a generally pessimistic view of courts

The Family\u27s Constitution

Many of the leading constitutional issues of our day implicate family law matters. Modern substantive due process is replete with questions of family law. Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Planned Parenthood v. Casey, and Lawrence v. Texas raise issues of family formation, intimate relationships, and reproductive decision making. Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley address the contours of marriage. Moore v. City of East Cleveland protects the extended family. Stanley v. Illinois, Lehr v. Robertson, and Michael H. v. Gerald D. consider the rights of unmarried fathers. Troxel v. Granville protects a parent\u27s childrearing decisions. Modern equal protection law, too, features a significant number of family law issues. A string of cases beginning in the late 1960s extends rights to nonmarital parent-child relationships. Leading sex equality decisions dating back to the 1970s render rights and responsibilities regarding marriage and childrearing formally gender neutral. Most recently, decisions on the rights of samesex couples to marry-namely, United States v. Windsor and Obergefell v. Hodges-recognize the families formed by gays and lesbians on grounds of equal protection and due process. These cases are thought to represent a relatively straightforward account of the relationship between family law and constitutional law

Inclusion, Accomodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation

This Article analyzes the rights claims and theoretical frameworks deployed by Christian Right and gay rights cause lawyers in the context of gay-inclusive school programming to show how two movements with conflicting normative positions are using similar representational and rhetorical strategies. Lawyers from both movements cast constituents as vulnerable minorities in a pluralistic society, yet they do so to harness the homogenizing power of curriculum and thereby entrench a particular normative view. Exploring how both sets of lawyers construct distinct and often incompatible models of pluralism as they attempt to influence schools\u27 state-sponsored messages, this Article exposes the strengths as well as the limitations of both movements\u27 strategies. Christian Right lawyers\u27free speech strategy-articulating religious freedom claims through the secular language of free speech doctrine-operates within an inclusion model of pluralism. This model stresses public participation and engagement with difference. After making significant advances over the past several years, lawyers have begun to employ the inclusion model with some success in the school programming domain, despite signficant doctrinal and remedial limitations. At the same time, Christian Right lawyers assert parental rights and free exercise claims in curricular challenges. Such claims rely on an accommodation model of pluralism that permits selective withdrawal based on religious beliefs and thereby resists active engagement with difference. This strategy struggles in the face of a well-accepted view of civic education that values exposure to diversity-a view bound up with the success of the Christian Right\u27s inclusion model of pluralism. Gay rights lawyers respond to Christian Right claims by drawing on a left multicultural model of pluralism. This model conceptualizes lesbians and gay men as identity holders (rather than sex actors), and in doing so succeeds in justifying the inclusion of sexual orientation in programming that prioritizes diversity. The left multicultural claim stalls, however, when it demands the state\u27s affirmative cultivation of respect by asserting students\u27 rights to gay-inclusive instruction. In the end, both the Christian Right and gay rights movements make important advances yet face significant tensions as they craft doctrinal claims that operate within competing models of pluralism