Faculty Publications - Marriage Equality, Constitutional Litigation and Backlash Politics

In Backlash Politics: How Constitutional Litigation Has Advanced Marriage Equality in the United States, Professor William Eskridge, Jr. offers an account of marriage equality’s constitutional success that includes an analysis of the risk that backlash politics poses to successful litigation-driven social movements. As Prof. Eskridge uses the term, the politics of backlash is a politics in which “people invest their identities and often their feelings of disgust into particular preferences.” Eskridge warns that when a minority group triggers a politics of disgust, “the polity needs to move slowly and incrementally as it recognizes the just claims of the minority.” Prof. Eskridge concludes that although constitutional litigation significantly advanced the cause of marriage equality, such success depends on the ability of litigators to minimize the risk of backlash.

Further reading:

Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2d ed. 2008).

Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011). 

Scott L. Cummings & Douglas NeJaime, Lawyering for Marriage Equality, 57 UCLA L. Rev. 1235 (2010).

William N. Eskridge Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419 (2001).

Professor Eskridge’s papers in Yale Law School’s Legal Scholarship Repository, and working papers on SSRN.

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