13 - ‘All’s Well That Ends Well?’

Summary

This chapter describes how constitutional dialogue among the judicial, legislative and executive branches; local, state and federal officials; and citizens organized at every level of government have played out in the case of gay rights, especially in the U.S. context. The decades-long dialogue across branches of government and citizens at all levels helps make the case that a “strong form” of judicial review is not inconsistent with wide democratic involvement and inclusive deliberation on constitutional questions. I argue that constitutional judicial review is clearly justified in principle as a means of protecting basic rights, especially minority rights. From the Vermont legislature’s creation of same-sex civil unions in response to the state Supreme Court’s incrementalist decision in Baker v. State, to the federal Supreme Court’s recognition of the right to same-sex marriage in Obergefell v. Hodges, same-sex marriage rights in the US were the culmination of complex debates and discussions in every corner of American life. The chapter concludes by comparing the U.S. Supreme Court’s constructive participation in the dialogue about same-sex marriage with its more pre-emptive intervention in the case of abortion. It also comments on how dialogues about same-sex marriage have involved courts in other constitutional contexts featuring ‘weaker’ forms of judicial review.