Jackie Gardina, The Tipping Point: Legal Epidemics, Constitutional Doctrine, and the Defense of Marriage Act (November 11, 2009). Vermont Law Review, Vol. 34, 2009. Available at SSRN: http://ssrn.com/abstract=1503989
Using Malcolm Gladwell’s book The Tipping Point as a jumping off point, this brief article discuss whether the Supreme Court has reached a tipping point with regards to equal marriage and its benefits. The article suggests that to determine whether the Court has reached the tipping point – and more specifically, whether the constitutional question has reached the Court at the right time – requires that one look beyond the Court’s precedent and examine the “national conversation.” The article traces other significant shifts in constitutional doctrine and suggests that the Court’s other tipping points have paralleled shifts in societal norms. the article ultimately concludes that the time is not right for a Supreme Court review of the Defense of Marriage Act. The “national conversation” about marriage equality is in its infancy when compared to race and gender issues. Equal marriage remains a deeply divisive issue. A recent poll shows that a majority of Americans are still resistant to extending marriage rights to same-sex couples. A vast majority of states either have constitutional amendments or statutes that explicitly define marriage as between one man and one woman. If the Justices are looking for evidence of a societal tipping point through legislative changes, as they did in Lawrence v. Texas and Loving v. Virginia, they will not find it yet.
