Holning Lau, Comparative Perspectives on Strategic Remedial Delays, 91 Tul. L. Rev. 259 (2016).

The issue of same-sex marriage offers illustrative examples of judicial actions triggering backlash. Consider the 1993 Hawaii Supreme Court case of Baehr v. Lewin.  The court ruled that same-sex couples’ inability to marry warranted strict scrutiny, one of the most stringent forms of constitutional review, and the court remanded the case.  By requiring strict scrutiny, the court positioned Hawaii to become the first jurisdiction in the world to legalize same-sex marriage.  On remand, the trial court held that Hawaii’s ban on same-sex marriage failed strict scrutiny.  The state appealed, but the unpopularity of Hawaii’s judicial decisions pushed the political process to outpace litigation.  While the state’s appeal was pending, opponents of same-sex marriage mobilized to pass a constitutional amendment that stripped the courts of power to decide the constitutionality of same-sex marriage bans.

Holning Lau, Comparative Perspectives on Strategic Remedial Delays, 91 Tul. L. Rev. 259, 268 (2016) (citing Michael D. Sant’Ambrogio & Sylvia A. Law, Baehr v. Lewin and the Long Road to Marriage Equality, 33 U. Haw. L. Rev. 705, 716-18 (2011)) (internal citations omitted).