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May 27, 2018


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Enrique Guerra Pujol (

Doesn’t this logic apply to a case like Obergefell v. Hodges?


Yes, Obergefell is directly on point. In Romer, Windsor, and Obgergefell, I think the Court issued relatively narrow and incremental rulings to avoid the type of backlash I talk about in the paper. None of the cases is clear with respect to the applicable standard of review, and Obergefell reads more as a case about the right to marriage than a prohibition against discrimination based on sexual orientation. In each case, moreover, I think the court used the narrowest reasoning possible to reach the holding it desired, and its decisions always followed rather than led public opinion. I don't mean to suggest, however, that bold and decisive action from the Court is always wrong. As Michael Klarman explains in detail in From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage, there were/are reasons to think that backlash to same sex marriage is different than, for example, backlash to school integration. Every issue is unique, and the point of the paper is just to provide another example calling for caution.

Enrique Guerra Pujol (

Well said ...

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