The two-year race from United States v. Windsor1 to Obergefell v. Hodges produced3 an inconceivable sea change in substantive constitutional law. But just as important as the right to marry was the process through which that right was vindicated. Marriage equality was established via parallel litigation in 37 states covering eight federal circuits. And that litigation triggered a complex two-year interaction of the doctrine governing injunctions, precedent, stays, concurrent state- federal litigation, and abstention.
Many books and articles have and will be written about the marriage- equality movement’s rapid success. Howard Wasserman (FIU) and I took a different tact. In our new article, The Process of Marriage Equality, we discuss how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court.
The article is now on SSRN. Here is the abstract:
This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions.
Scholars will spend many years and pages exploring the rapid establishment of the constitutional right to marriage equality. This paper contributes to that conversation by focusing, for the first time, on the critical, but underdeveloped, procedural nuances of high-stakes constitutional and civil rights litigation. We offer both a detailed historical record of the litigation that produced the constitutional watershed that is marriage equality, as well as a better understanding of how procedure, jurisdiction, and the judicial process affect future high-stakes constitutional and civil rights litigation. The results in the marriage litigation were decidedly mixed. Courts and litigants for the most part got many of these issues right. But they often got procedure very wrong, in a way that confused, extended, and raised the cost of this litigation and that contributed to widespread public misunderstanding of these issues.
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