Article   |   Volume 167, Issue 7

Presidential Constitutionalism and Marriage Equality

167 U. Pa. L. Rev. 1891 (2019)

May 2019

“Presidential constitutionalism” has a distinctive origin in the duties of the President laid out in the Constitution. This article will consider a particularly powerful example of presidential constitutionalism: the Obama Administration’s leadership on the issue of marriage equality for lesbian, gay, bisexual, transgender, queer, and similar (LGBTQ+) persons. Presidential constitutionalism was effective because the chief executive articulated a robust principle (equal citizenship for sexual and gender minorities), application of that principle to the marriage issue was deeply deliberative within the executive branch and invited involvement by the judicial and legislative branches, and the process allowed the electorate to express its views. The combination of a robust principle, institutional deliberation, and popular feedback created conditions for immediate and powerful entrenchment of new rights for sexual and gender minorities.

Presidential Constitutionalism and Marriage Equality -

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Cary Coglianese

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John Q. Barrett