(Queer) Pride and Precedent: Lower Court Responses to Marriage Equality and Their Consequences for LGBT Legal Mobilization

Within the domain of law, the extent that the Supreme Court’s decision in Obergefell v. Hodges, bringing same-sex marriage to the whole of the United States, might influence future LGBT organizing and rights struggles depends largely on how the legal doctrines and reasoning contained within are used by legal actors moving forward. How might Obergefell have reshaped future LGBT rights struggles in the legal arena?

Legal decision-making is an act of interpretation and creation, not merely of applying clear rules to set facts. As such, any court opinion has within it the potential to be something more than itself. While law is rarely, if ever, fully liberatory, it can open up possibilities that did not previously exist. For example, while the court’s decision in Lawrence v. Texas, overturning state sodomy bans, was rather narrow the legal logic contained within led to the (arguably) broader ruling in Obergefell. Yet, it also did not fully live up to its own potential, as attempts to use the opinion in lower courts to more fully enshrine a theory of sexual freedom has largely failed.

Before we can understand the ways that the marriage equality victory might limit or open up future LGBT political and legal mobilization, we need to understand more precisely what impact the decision is having. Were the Obergefell opinion a broad, sweeping ode to the rights of queer individuals to live lives that make sense to them, then no doubt it could herald the start of a legally oriented revolution in LGBTQ rights. Or, it if were a very narrow opinion, applicable only to the precise sets of facts before the Court, then it would clearly be a roadblock to future LGBTQ legal mobilization. Yet, neither of these two extremes seems to be the case, leaving the future a little more nebulous.

One way to begin to understand what impact Obergefell is having in the legal realm is to look at what lower courts have been doing with the case in the 15 months (at the time of the conference) since the opinion came down. While some of the cases are simply follow-up to the marriage cases, clearing dockets and clarifying Constitutional obligations for marriage clerks, other opinions are called on to interpret and expound upon the meaning of Obergefell and Justice Kennedy’s “equal dignity” concept. My project looks at every lower federal and state court opinion that cites Obergefell to see how, and in what contexts, these courts are interpreting the opinion and applying it to other issues.

This presentation could fit either in an academic presentation or in a more informal roundtable session. My ideal set-up for the presentation would be to present the information that I’ve gathered, and then to engage in conversation with attendees about how (if at all) this information is useful for understanding what the legal side of the LGBTQ movement might look like in a post-marriage equality world. The impetus for the project was inspired by the call for proposals itself, and as such is still in very early stages.


Part of panel Litigation and LGBTQ Politics
October 2, 2016, 14:15–16:00