Stages of Constitutional Grief: Democratic Constitutionalism and the Marriage Revolution

Do courts matter?Historically, many social movements have turned to the courts to help achieve sweeping social change. Because judicial institutions are supposed to be above the political fray, they are sometimes believed to be immune from ordinary political pressures that otherwise slow down progress. Substantial scholarship casts doubt on this romanticized ideal of courts. This Article posits a new, interactive theory of courts and social movements, under which judicial institutions can legitimize and fuel social movements, but outside actors are necessary to enhance the courts’ social reform efficacy. Under this theory, courts matter and can be agents of social change by educating the public and dislodging institutional inertia in the political branches.This Article addresses these competing visions of judicial capacity for social change in the context of the struggle for marriage equality. Specifically, it considers the extent to which courts were responsible for Americans warming to LGBT rights and coming to new understandings of family, examining evidence marshaled from court rulings, polling data, interviews with federal and state judges, interviews with state elected officials, legislative histories, and media accounts. The Article concludes that courts played a vital, role in fueling the marriage equality revolution. They were not, however, unbridled agents of social change because external forces were necessary to maximize the impact of courts’ actions