The last few decades have seen a dramatic change in the way in which Americans view LGBT rights, and the right to same-sex marriage in particular. In 1972, the Supreme Court issued its first opinion on same-sex marriage. In sharp contrast with Obergefell v. Hodges, which established the constitutional right to marriage equality in 2015, the case of Baker v. Nelson held in one sentence that the idea that such a right might exist was not even worth discussing. What happened in the intervening forty years to change the outcome so profoundly? And how can attorneys seek to replicate that success in developing other, hitherto-unrecognized rights for their clients?
This Article posits a practical, conceptual model by which a lawyer may develop “new” institutionally recognized rights on behalf of a client, using Obergefell as a roadmap. Most advocacy by lawyers in traditional law firm settings remains one-dimensional, focusing solely on jurisprudential progress and outcomes rather than wholistic, multidisciplinary advocacy. But the development of rights seldom happens solely as a consequence of changes in judicial philosophy. As such, this Article first discusses rights as occurring in three stages and then suggests a framework of five “movers” that a lawyer may deliberately employ to move rights through those stages, both in and out of the courtroom, using the lessons learned from Obergefell.
Daniel J. Canon, Marriage Equality and a Lawyer's Role in the Emergence of "New" Rights, 7 Ind. J. L. Soc. Equal. 212 (2019).