In The Court's Shadow: Evaluating State Government Backlash to Obergefell v. Hodges

Abstract

While the Supreme Court’s ruling in Obergefell v. Hodges may have settled the question of same-sex marriage’s legality, the issue did not disappear on June 26th, 2015. Rather, the contested 5-4 decision transformed the policy landscape from a debate about same-sex marriage into a fight for religious liberty, providing space for state governments to defy the ruling through legislation. However, some scholars of judicial backlash - the academic field that studies responses to landmark Supreme Court decisions - suggest that there was no backlash to Obergefell. Rather, they say that the Court’s capacity as a “republican schoolmaster” ended the same-sex marriage debate once and for all. To test whether there was backlash to Obergefell v. Hodges, I employed a mixed- methods analysis in which I combined national-level multinomial logit regressions with local case-study analysis of hostile legislation. I hypothesized that there was judicial backlash to Obergefell, insofar as state legislators would propose substantial amounts of legislation hostile to same-sex marriage rights. However, I predicted that this backlash would be largely ineffective, as the hostile bills would not be likely to pass into law. Furthermore, I hypothesized that the majority’s partisanship (Republican), public opinion (low), and the state’s previous status on same-sex marriage (legalized by the courts) would correlate with an increase in the likelihood of hostile legislation to pass in the state legislature. As expected, there was a state-legislative backlash to Obergefell v. Hodges, but it was largely ineffective. I argue that the concentrated proposals of over one-hundred bills during two distinct time periods - immediately after the ruling (2015-2016) and again several years after (2019-2021) - suggests that states experienced outburst of resistance towards Obergefell. However, the backlash was extremely unsuccessful, with around 10% of proposed hostile bills passing, suggesting that the Court did curtail debate on the central holding. However, the causes of backlash were different than initially hypothesized. Regression analysis revealed that Republican and Democrat legislators were similarly likely to propose and pass supportive legislation while rejecting hostile bills. Furthermore, public opinion and previous status had no effect. The most reliable predictor of a bill’s legislative success was its hostility: the more hostile a bill, the less likely it was to pass, regardless of its context. Finally, through case study analysis, I note that there was some truth to both major schools of thought about how backlash proceeded in state legislatures. The political capital of well-connected political elites was instrumental in helping hostile bills pass, while public opinion and the media were able to break opposing coalitions and render backlash ineffective. However, I also advocated a third view on judicial backlash: the agency of state officials themselves, operating within an interconnected network of policies, state-to-state relationships, and semi-elite interest groups. By demonstrating that many of the religious liberty propositions were written by state-level interest groups and adapted by passionate legislators, I note that state legislators have more agency than they are normally afforded in conversations about judicial backlash.