Legal Before the Law: Same Sex Marriage in the US
Deciding on the Obergefell v. Hodges case in 2015, the US Supreme Court legalized same-sex marriage in all fifty states. On the one hand, it put an end to a legal struggle which dated back to 1970, when a same-sex couple applied for a marriage license for the first time in Minnesota. On the other, it paradoxically reversed a sustained, progressive process, which had saw many states promote gay and lesbian rights irrespective of their political majority.
Until then, wrote Graziella Romeo, Associate Professor of Constitutional Law at Bocconi, in a book chapter, "virtually every State seems to adopt an incremental approach to gay rights that usually develops from a statutory ban on homosexual intimate relationships to a statutory guarantee of (at least) some spousal rights. These developments do not appear to depend directly upon changing political attitudes. In almost every case the evolving vicissitudes of rights recognition involve struggles among courts, legislatures and civil society-as the preferred terrain of the liberty/authority dialectic- rather than the mere transformation of political preferences."
After the Supreme Court decision, though, resistance to the same sex marriage right resurfaced both among public servants (see the case of Kim Davis, a county clerk who refused to issue a license in the aftermath of the Obergefell v. Hodges decision), State parliaments and parts of civil society.
This kind of reaction could have been expected. In her book chapter, Professor Romeo, months before the Supreme Court ruling, wrote that "there are even arguments clearly asserting that judicial activism resulted in severe backlashes for the cause of same-sex couples' equality," and that "it is the continued interaction among legal formants on the one hand and public debate on the other that marks progress or regression in this field."
If, before 2015, these words were to be read mostly as the description of reactions to restrictive court rulings, now they describe pushback to progressive ones.
When rights are conquered as the result of a political process, including parliamentary legislation, these rights are long lasting. "Courts cannot ignore commonly held opinions as always happens when the recognition of controversial rights is concerned," Professor Romeo wrote. "Judges indeed face the counter-majoritarian difficulty each time they are required to deliver decisions that affect society's fundamental choices." Counter-majoritarian difficulty has to do with judges reaching solutions that are not (yet) shared or accepted by elected legislators, thus acting contrary to "majority will" as expressed by representative institutions.
"Solutions or equilibrium reached in 'hard cases' sometimes face strong opposition," Prof. Romeo concluded, "they are rather a moment in the complex history of individuals' rights. For all these reasons, it is only within the dialectical confrontation among arguments that rights can, in the end, be affirmed."
Graziella Romeo, "The Recognition of Same-Sex Couples' Rights in the US Between Counter-Majoritarian Principle and Ideological Approaches: A State Level Perspective." In: Gallo D., Paladini L., Pustorino P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. DOI: https://doi.org/10.1007/978-3-642-35434-2_2.