Reva Siegel (Yale University – Law School) has posted Same-Sex Marriage and Backlash: Consensus, Conflict, and Constitutional Culture on SSRN. Here is the abstract:
We look to courts to protect minority rights, yet often doubt the power of courts to defy majority views. For many, it is constitutional common sense that judges will provoke backlash if they do not interpret the Constitution in accord with popular consensus. Consensus constitutionalism of this kind calls into question the counter-majoritarian possibilities of judicial review. This article examines claims about backlash in the debate over same-sex marriage, and the popular and academic assumptions about courts on which they are based. In contrast to the assumptions of consensus constitutionalism on which claims about judicial backlash rest, I offer an account of judging in conflict that shows how law and politics shape each other through pathways of constitutional culture. My account of constitutional culture focuses on the understandings about role that structure interactions among citizens and officials who disagree about the Constitution’s meaning. These understandings guide judges and citizens in making judgments about whether to they must defer to one another or may resist, and if so how. When constrained and channeled by the role-based understandings of constitutional culture, conflict need not be destructive — as the backlash narrative suggests — but can forge meanings and bonds that strengthen the constitutional order. Analyzing the long-running conflict over same-sex marriage through this framework leads us differently to evaluate the power and limits of judicial review. More fundamentally, it focuses our attention on understandings of citizens and officials on which the functioning of a constitutional democracy depends.
In this article I argue that the backlash narrative and the consensus model of constitutionalism on which it rests simultaneously underestimate and overestimate the power of judicial review. The Court’s decision in Obergefell was possible not simply because public opinion changed, but also because 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. Conflict of this kind is enabled, and constrained, by the role-based understandings of constitutional culture.
A conclusion invokes anxieties attending the election of Donald Trump to illustrate how critical the perpetually contested role constraints of constitutional culture are in sustaining our constitutional order.