Evaluating Legal Activism: A Response to Rosenberg01 Jan 2009
Earlier this year, Gerald Rosenberg updated his canonical work The Hollow Hope to incorporate the battles over same-sex marriage as, in his opinion, further support for his theory that the backlash of legal activism can subvert the intended goals. This Article examines three of Rosenberg’s central claims and, by questioning their premises with further evidence from the history of the same-sex marriage movement, roils the waters of whether the litigational and political record of the same-sex marriage movement bolsters or weakens Rosenberg’s thesis. The Article first questions Rosenberg’s claim that activists seeking to advance same sex marriage erroneously chose the courts rather than the political arena to advance their goals. Second, the Article asks whether the goals of same-sex marriage activists can be assessed via a binary outcome-related standard: whether legitimization of same-sex marriage was achieved or failed. Third, the Article investigates whether the advocates for same-sex marriage failed to properly coordinate legal and political efforts. By demonstrating that Rosenberg’s claims should be tempered, the Article suggests strongly that Rosenberg’s wholesale condemnation of the movement should be qualified.