Hollingsworth v. Perry : Same-Sex Marriage, the Courts, and Social Reform

The history of same-sex marriage litigation has often been a story of courts making decisions in opposition to public opinion, which as a result has created powerful political backlash. George N. Rosenberg has argued that when courts try to create social reform without significant political and public support, they will create political backlash against the very issue they have ruled in favor of. William N. Eskridge proposes a different theory and concludes that courts have significantly advanced the cause of same-sex marriage by reversing the burden of inertia, and moving the issue from a disgust- and identity-based discussion into what he calls normal politics. Recent polls show a growing majority of Americans in support of same-sex marriage, and in 2013 the number of states that recognizes same-sex marriage went from nine to seventeen. Additionally, 2013 was the year the Supreme Court struck down parts of the federal Defense of Marriage Act in United States v. Windsor and invalidated a ban on same-sex marriage, Proposition 8, in California in Hollingsworth v. Perry. In light of the recent success of same-sex marriage cases in American courts, this thesis suggests a more balanced view on the role of courts than argued by Rosenberg. Furthermore, by following the case that ended up as Hollingsworth v Perry in the Supreme Court, this thesis applies Eskridge s theory in analyzing how the arguments of the opponents of same-sex marriage developed from the initial campaign to pass Proposition 8 and into the various levels of courts and appeals. This thesis argues that courts have invalidated many of the identity-based arguments presented by the same-sex marriage opponents and played a pivotal role in the growing momentum in support of same-sex marriage