An Ephemeral Movement Minimalism, Equality, and Federalism in the Struggle for Same-Sex Marriage Rights


We live in fragile times. A Supreme Court delicately poised on Justice Anthony Kennedy’s evolving vision of liberty. A recently re-elected president who may ultimately transform that familiar, if disconcerting, balance. A public trending firmly toward support for marriage equality, yet far from the consummation of that apparent demographic destiny. A president whose lawyers besiege the Defense of Marriage Act (DOMA) in court, opposed by the House of Representatives. An era of lower court opinions that (mostly) dance on eggshells, offering a national seminar in applied minimalism. A year in which our highest court may chart the future of constitutional litigation for “the defining civil rights issue of our time.” And a symposium in which many of our brightest thinkers debate how the Constitution does and should figure into the grand strategy of advancing human dignity so memorably condemned by Justice Scalia as the “homosexual agenda.”

Sweeping pronouncements rest awkwardly on ephemeral moments–an unavoidable fate, perhaps, for the dialogue memorialized in this symposium. For that reason, we focus on a few particularly important recent developments inLGBT rights litigation and adjudication that may be called into question when the Court rules on United States v. Windsor and Hollingsworth v. Perry in its 2012 Term. Specifically, we examine the shifting role of minimalism, the use of liberty- and equality-based arguments, and a fickle romance with federalism.

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