Walsh Reviews “The Process of Marriage Equality” on Jotwell

May 2nd, 2016

At Jotwell, Kevin Walsh reviews my co-authored article with Howard Wasserman, The Process of Marriage Equality. I am grateful to Kevin for his thoughtful analysis in Process Failure on the Road to Obergefell.

Here is the introduction:

In The Process of Marriage Equality, Josh Blackman andHoward Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it.

And the conclusion:

All of us now are still too close to the process of this particular constitutional change to have the perspective that comes with the distance of many years. But the chronicle that Blackman and Wasserman provide will remain valuable for future observers who possess such a perspective. Whether those observers viewObergefell more like Brown or more like Roe, the record of the process that led toObergefell will remain. As one who largely agrees with Blackman and Wasserman’s critical assessments—if anything, I would be more critical—I suspect that this record is not likely to look any better with age.