Sarah L. Swan * | 25.2 | Sarah L. Swan, Constitutional Backfires Everywhere, 25 U. Pa. J. Const. L. 311 (2023).

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When advocates achieve victories for equal rights at the Supreme Court, moments of lively celebration and joyful optimism flow. For those who have long sought such rights recognition, the formal legal acknowledgement of their inherent dignity and right to claim equal social status can be profound: inspirational newspaper editorials are written, powerful and stirring speeches are made, the future looks bright.

Yet, as time goes on, these constitutional victories can fail to translate into the sort of significant, on-the ground social change that would meaningfully raise the status of marginalized groups within the existing polity. The story becomes not one of massive social progression, but instead one of mostly preservation-through-transformation. Enormous legal shifts toward equality occur, but they repeatedly fail to fully dislodge existing hierarchies or create fundamentally equitable legal and social institutions. Instead, in spite of these legal and constitutional developments, old status quos and traditional hierarchies of race, gender, sexuality, and class persist.

Scholars have identified numerous obstacles and mechanisms that prevent constitutional rights recognition from translating into actual social change. This Article introduces and inducts constitutional backfires into this canon. This Article argues that, perhaps paradoxically, status quos are often preserved through a dynamic process of toggling between two seemingly opposite discriminatory practices, with constitutional decisions often mediating this toggling. Specifically, when a constitutional decision makes one form of discrimination less available, a constitutional backfire can occur, whereby the nearly opposite discriminatory practice rises instead. This practice then interacts with vestiges of the previous one in order to stabilize a pre-existing race/class/sex norm and stymie the possibility of social change.

This phenomenon is especially rampant in the context of marriage law and policy, where four examples of constitutional backfires can be seen. First, after the Supreme Court in Zablocki v. Redhail declared that states could not constitutionally prohibit poor persons from marrying, economically marginalized people found themselves instead bombarded by the discursive and practical harms of marriage promotion programs. Similarly, when the Supreme Court in Obergefell v. Hodges declared that states could not deny same-sex couples the right to marry, a wave of policies pushing towards marriage as almost obligatory began. For incarcerated persons, marriage which was once heavily promoted for its rehabilitative purposes has, in the wake of Turner v. Safley, become increasingly prohibited for individuals involved in the penal system, with the case also bringing about a significant reduction in prisoner rights more generally. Finally, when Planned Parenthood v. Casey provided a final formal rebuke of the historical regime of marital coverture, a form of reverse coverture arose to sustain existing hierarchical gender norms.

This Article describes how constitutional backfires mediate and influence these opposing discriminatory practices, and how these opposing practices ultimately function to stabilize systems of white supremacy, heteropatriarchy, and capitalism. Through this exploration, this Article makes three significant contributions. First, it deepens our understanding of the relationship between constitutional and social change, introducing an additional mechanism that impedes lasting social change despite constitutional victories. Second, it reveals how toggling between opposing discriminatory practices allows for the continued marginalization and regulation of particular populations. Finally, as intimate rights in particular appear increasingly precarious and at risk of potential deconstitutionalization by the Supreme Court, this Article uses the lessons of constitutional backfires to present alternative paths for social change and suggests new tools for forearming and strengthening equal rights outside of formal federal constitutional recognition.

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*Professor of Law, Rutgers Law School (Newark).