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).

Amicus Curiae Brief of the Director of the Tribal Justice Clinic of the Indigenous Peoples Law and Policy Program in Aguayo v. Jewell, No. 16-660, 2016 U.S. S. Ct. Briefs LEXIS 4693 (Dec. 19, 2016).

Treaty making persisted as the principal method of dealing with tribal governments until 1871, when Congress terminated the process, instead granting the authority to govern Indian affairs to itself, via legislation. United States v. Kagama, 118 U.S. 375, 382 (1886); Ex Parte Crow Dog, 109 U.S. 556 (1883); See also, e.g., The Cherokee Tobacco, 78 U.S. 616, 618 (1870) (holding that a “treaty may supersede a prior act of Congress and an act of Congress may supersede a treaty.”).  In 1871, Congress passed the General Allotment Act (GAA), the purpose of which was to convert individual Indians into farmers.  Larry A. DiMatteo & Michael J. Meagher, Broken Promises: The Failure of the 1920’s Native American Irrigation and Assimilation Policies, 19 U. Haw. L. Rev. 1, 1-2 (1997) (“The [GAA] had as its philosophical mandate the creation of the Indian farmer.”).

Amicus Curiae Brief of the Director of the Tribal Justice Clinic of the Indigenous Peoples Law and Policy Program 12, Aguayo v. Jewell, No. 16-660, 2016 U.S. S. Ct. Briefs LEXIS 4693 (Dec. 19, 2016).

Scott Skinner-Thompson et al., Marriage, Abortion, and Coming Out, 116 Colum. L. Rev. Online 126 (2016).

Throughout the 1990s, the picture for LGBTQ rights remained relatively bleak. Despite the Hawaii Supreme Court’s 1993 holding in Baehr v. Lewin that the state’s refusal to grant same-sex marriages violated the Hawaii state constitutional provision requiring strict scrutiny of laws discriminating on the basis of gender and a subsequent trial court decision concluding that the state had failed to satisfy such scrutiny, Hawaii quickly amended its constitution to specifically permit the exclusion of same-sex marriages. All other states also continued to prohibit same-sex marriage until 2003.

Scott Skinner-Thompson et al., Marriage, Abortion, and Coming Out, 116 Colum. L. Rev. Online 126, 131, 131 nn. 26-27 (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)).