Law Review Symposium 2014 — Keynote by Erwin Chemerinsky


This essay, using the example of marriage equality, argues that courts are essential in bringing about certain types of social change. After explaining why marriage equality is inevitable, the essay explores reasons why there was such a quick transformation in social attitudes and the legal landscape? The essay then argues that the number of states allowing marriage equality would be lower if the Massachusetts Supreme Judicial Court in Goodridge had not found a right to same sex marriage. The country needed to see that it’s possible to have marriage equality without any other harm to social institutions. Only after some of the state courts had found such a right did legislatures — such as New York in 2011 — create the right. And then ballot initiatives — like in Maryland, Maine, and Washington in 2012 — created rights. The essay argues that it’s not that the courts can do it alone, but it is that the courts are essential to bringing about change, although legislative, rhetorical, and media strategy are all essential too. The essay concludes that the literature and constitutional theory that says the courts can’t succeed and the courts are unnecessary is misguided; we need a much more complicated and nuanced account of the role of the court together with other institutions in bringing about social change.

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