Lower Court Popular Constitutionalism

Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors—social movements, the federal political branches, state and local political entities—play an important role in shaping constitutional meaning. To date, the accounts of such scholars have largely focused on the ways that constitutional doctrine at the Supreme Court level can be infiltrated and shaped by such popular constitutional influences. In this Essay, Professor Katie Eyer draws on the events following the Obama Administration’s February 2011 Defense of Marriage Act (DOMA) announcement—and the history of gay equality litigation that preceded it—to develop a theory of the lower federal courts as participants in the popular constitutionalism dialogue