One Sequin at a Time: Lessons on State Constitutions and Incremental Change from the Campaign for Marriage Equality

Abstract

State constitutional litigation can be a powerful tool to advance a robust and proactive civil rights agenda at a time when opportunities for creating progressive change in federal courts is imperiled. The LGBTQ campaign for marriage equality serves as a lesson in the effectiveness of state constitutional litigation to create incremental change and move public opinion in the face of a hostile federal court system. This Article first engages readers unfamiliar with the complexities of state constitutional law in an overview of judicial federalism and the theoretical potential of state courts to establish or advance rights independently of the federal judiciary. It then offers a lesson on this potential from a particular period of time in the campaign for marriage equality (1986-2004), in which advocates for LGBTQ rights avoided litigating before an unfriendly federal judiciary, and instead strategically sought out incremental gains in state courts. This Article posits that this period in the LGBTQ rights movement was critical in both providing an intellectual framework for federal marriage equality litigation and, perhaps more importantly, significantly altering the American sociopolitical landscape to become far more willing to accept same-sex relationships as worthy of recognition under the law. The Article contributes to the discourse on civil rights by placing focus on state constitutional litigation (an undertheorized area of scholarship in comparison to the attention paid to the federal Constitution), and by specifically noting the significance of LGBTQ rights litigation to our understanding of the potential for state constitutions to create progressive change.