Capitolo 4
A Marathon, Not a Sprint: The Vermont Strategy
In 1996, attorneys Susan Murray and Beth Robinson began their thirteen-year journey to make Vermont the first state to legislatively approve same-sex marriage without court order. After building political support through the Vermont Freedom to Marry Task Force, they filed suit in 1997 with three carefully selected couples. The Task Force trained advocates in effective messaging, created videos showing gay couples were like other couples, and secured commitments from enough legislators to block any constitutional amendment.
When the Vermont Supreme Court unanimously ruled in 1999 that denying marriage benefits to same-sex couples violated the state constitution, it left the remedy to the legislature. Despite 52% of Vermonters initially opposing the decision, the legislature created "civil unions"-a parallel structure granting same-sex couples all marriage rights. Though many advocates viewed this as insufficient, it represented unprecedented progress.
The Task Force continued its work through backlash elections, and by 2009, Vermont became the first state to legislatively recognize full marriage equality without court order. This incremental approach-moving from hate crimes laws to anti-discrimination protections to civil unions to marriage-proved more effective than Hawaii's attempt at one giant leap. Within six months of implementation, 52% of Vermonters approved of civil unions, demonstrating how patient incrementalism could achieve lasting constitutional change.
Capitolo 5
One Step Forward, Two Steps Back: The Massachusetts Experience
Despite her colleagues celebrating Vermont's civil unions as a victory, Mary Bonauto and GLAD weren't satisfied. They believed true equality demanded marriage itself. Turning to Massachusetts, Bonauto carefully prepared the groundwork before filing suit in 2001. The state had already taken steps recognizing gay equality, including anti-discrimination laws and adoption rights. Massachusetts's cumbersome constitutional amendment process also made it harder to override a judicial victory.
In November 2003, the Massachusetts Supreme Judicial Court ruled 4-3 that denying marriage to same-sex couples violated the state constitution. When the legislature asked if civil unions would suffice, the court emphatically said no. On May 17, 2004, Massachusetts became the first state to recognize same-sex marriage.
The victory sparked multiple attempts to amend the state constitution, but marriage equality advocates successfully defeated these efforts through strategic electoral work. By 2007, public opinion had shifted, with 56% of Massachusetts residents approving same-sex marriage.
The Goodridge decision also triggered significant backlash nationwide. By 2006, twenty-seven states had banned same-sex marriage by constitutional amendment, and forty-five states prohibited it through statute or amendment. Critics like law professors Gerald Rosenberg and Michael Klarman argued that Goodridge did more harm than good, calling the campaign "an unmitigated disaster."
However, from a longer perspective, these criticisms appear shortsighted. As Evan Wolfson noted, "wins trump losses." Courts were the only viable path forward since legislatures would have simply ignored requests for marriage equality. The court victories had a galvanizing effect on gay and lesbian couples nationwide, who saw for the first time that marriage equality could be recognized as a constitutional right. Between 1997 and 2008, twelve state legislatures extended domestic partnership benefits to same-sex couples.
Even the backlash proved productive by giving same-sex marriage unprecedented visibility and sparking important counter-responses from supporters. State court litigation provided essential testing grounds for developing arguments that would later succeed in federal courts.
Capitolo 6
Learning from Defeat: The Maine Strategy
The marriage equality advocates completely transformed their approach after studying their defeat in Maine. Instead of relying on traditional brief political canvassing, they adopted "long-form persuasion" techniques where volunteers engaged voters in extended conversations about marriage. Through EqualityMaine and Mainers United for Marriage, advocates had over 200,000 in-depth conversations with Maine voters, changing approximately 12,500 minds in the process.
They also fundamentally reframed their message. Research by Amy Simon, Phyllis Watts, and others revealed that rights-based arguments were less effective than emphasizing love and commitment. Many voters were deeply conflicted about same-sex marriage-wanting to be fair while fearing change. The successful 2012 campaign featured authentic Mainers sharing personal stories rather than activists. Almost every speaker was straight-elderly couples, firefighters, religious ministers-who explained their own journey from doubt to support.
This strategic shift paid off. In 2012, marriage equality advocates won ballot initiatives in Maine, Washington, Minnesota, and Maryland-their first referendum victories after years of defeats. As Evan Wolfson often said, they had learned to "lose forward," using each setback to mobilize supporters and refine their approach. These kitchen-table conversations and emotional appeals, while never citing constitutional provisions, were as crucial to establishing marriage rights as any legal brief filed in court.
Capitolo 7
The End Game: Windsor and Obergefell
After Windsor, Mary Bonauto and gay rights advocates strategically pursued heightened scrutiny for sexual orientation discrimination. When the First Circuit's precedent blocked this in Massachusetts, they filed cases in the Second Circuit where the question remained open. The ACLU and attorney Roberta Kaplan filed Windsor's case in New York on the same day Bonauto filed in Connecticut.
Meanwhile, the gay community mobilized when the Justice Department defended DOMA in another case. After blogger John Aravosis characterized the government's brief as "gratuitously homophobic" for citing cases about cousin and underage marriages, the Human Rights Campaign and New York Times joined the criticism. The Obama administration ultimately refused to defend DOMA, arguing it couldn't survive heightened scrutiny, leaving House Republicans to defend the law.
When the Supreme Court struck down DOMA in Windsor, Kennedy's opinion followed Bonauto's framing precisely-emphasizing federalism, children's interests, and the law's unusual intrusion into state marriage regulation. Though carefully limited to federal recognition of state-approved marriages, Windsor triggered over eighty lawsuits nationwide. By the time the Court took up Obergefell, more than sixty courts had ruled in favor of marriage equality, with only four ruling against it.
The Court initially declined review in five cases but acted when the Sixth Circuit created a circuit split by upholding state marriage bans. At oral argument, Kennedy worried about overturning a millennia-old institution, while Solicitor General Verrilli argued powerfully that gay couples deserved equal protection "now." On June 26, 2015, Kennedy's majority opinion recognized same-sex marriage nationwide, finding all four traditional reasons for marriage's constitutional protection-individual autonomy, intimate association, child welfare, and social order-applied equally to same-sex couples.
Capitolo 8
The Right to Bear Arms: A Constitutional Transformation
While marriage equality advocates embraced constitutional evolution, the National Rifle Association viewed its mission as recovering the Second Amendment's original meaning. As Marion Hammer, the NRA's first female president, puts it, the Constitution "means what the Founding Fathers intended for it to mean. Nothing more and nothing less."
For most of American history, the Second Amendment wasn't interpreted as protecting individual gun rights. In 1939, the Supreme Court suggested it only protected states' militia authority. Even conservative figures like Warren Burger and Robert Bork dismissed the individual rights interpretation. Yet in 2008, in District of Columbia v. Heller, the Court officially endorsed the right Hammer and the NRA had advocated for decades.
After failed litigation attempts in the 1980s when courts rejected their Second Amendment claims, the NRA began systematically amending state gun laws. They prioritized "preemption" laws (preventing local governments from passing gun restrictions), state constitutional protections for individual gun rights, "shall-issue" concealed carry laws, and "stand-your-ground" legislation. Florida, under Marion Hammer's influential lobbying, became the NRA's testing ground for new gun rights initiatives that would later spread nationwide. By 2005, forty-five states had preemption laws, and by 2013, all fifty states permitted concealed carry.
The NRA's success stems from its extensive state-level organization, five million members, single-minded focus, and effective electoral grading system that holds politicians accountable on gun issues. Unlike marriage equality advocates who faced widespread public opposition initially, the NRA benefits from having over a third of American households owning guns-giving them a tangible interest they fear losing. The organization effectively leverages this fear, with Wayne LaPierre warning that even modest regulations like the Brady Bill are "the first step" toward confiscation.
Capitolo 9
Revisionist History and Academic Legitimacy
The NRA's originalist approach led scholars like Stephen Halbrook and Don Kates to transform Second Amendment scholarship. Halbrook, who surprisingly began as an anti-Vietnam War activist with a PhD in philosophy, and Kates, who once worked with civil rights lawyers, systematically developed arguments that the Second Amendment protected individual rights. They cited the amendment's text referring to "the people," the contemporary understanding of "militia" as comprising all able-bodied white men, the English Bill of Rights precedent, and natural rights theory.
Their work dramatically shifted the academic landscape from near-consensus on a collective-rights view to what one professor called the "standard model" of individual rights-a view that eventually prevailed in Heller. By the time the Supreme Court took up the case, a significant body of scholarship supported the individual rights interpretation, giving it academic legitimacy that had been lacking decades earlier.
The NRA's influence extends far beyond scholarship into the halls of Congress and other federal institutions. In 1986, the organization achieved its first major federal legislative victory with the Firearms Owners' Protection Act, which eased restrictions from the 1968 Gun Control Act and explicitly referenced Second Amendment rights. Though the NRA suffered setbacks with the Brady Bill and assault weapons ban during Clinton's presidency, it transformed these losses into victories-challenging the Brady Bill's constitutionality in Printz v. United States and helping Republicans take control of the House in 1994 after targeting representatives who supported the assault weapons ban.
Capitolo 10
Human Rights in the War on Terror: Against All Odds
When Al Qaeda attacked America on September 11, 2001, civil liberties typically became early casualties, as citizens sacrificed freedom for promised security. This pattern dates back to Roman times and has repeated throughout American history-from Lincoln's suspension of habeas corpus to Japanese internment during World War II. While courts occasionally intervened, particularly as wars concluded, the historical record showed consistent deference to executive authority during conflicts.
Civil liberties defenders after 9/11 faced daunting challenges. Unlike the focused campaigns for marriage equality or gun rights, they confronted multiple threats simultaneously: preventive detention, unfair trials, torture, renditions, excessive secrecy, surveillance, profiling, and speech restrictions. They couldn't pursue a state-by-state strategy since national security remains primarily federal, and their constituents were largely foreign nationals without voting power.
When the war on terror began, civil liberties advocates couldn't delay federal lawsuits until they'd built momentum elsewhere-detained clients needed immediate help. Michael Ratner, a public interest lawyer with the Center for Constitutional Rights who had previously challenged Guantanamo detentions of Haitian refugees under Bush Sr., took on what he considered a "completely hopeless" case against Bush Jr.'s detention of alleged enemy combatants.
The administration had declared Guantanamo a "law-free zone" where detainees had no rights, no lawyers, no hearings, and no identities revealed. Working with colleagues, Ratner identified Australian and British detainees through family contacts and filed habeas corpus petitions in February 2002. Legal precedent strongly favored the government-the Supreme Court had ruled after WWII that enemy prisoners couldn't seek habeas review.
Against overwhelming odds, the Supreme Court surprisingly agreed to hear the case and ruled 6-3 in Rasul v. Bush (2004) that detainees had a right to court review. This began an unprecedented series of four major Supreme Court defeats for the administration, including Hamdi v. Rumsfeld (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008).
Capitolo 11
The Rule of Law Frame: Redefining the Narrative
Civil liberties advocates faced a formidable challenge after 9/11 when President Bush framed criticism as aiding terrorists, declaring "Either you are with us, or you are with the terrorists." Attorney General Ashcroft reinforced this by claiming that those who raised civil liberties concerns "give ammunition to America's enemies." To counter this powerful narrative, human rights groups strategically reframed their opposition around "the rule of law." They portrayed Bush's assertions of executive power as challenges to law itself-Guantanamo as a "law-free zone" and the administration as placing itself above constitutional constraints.
This framing proved remarkably effective, especially as the administration repeatedly resisted oversight and constraints. By 2004, when the first enemy combatant cases reached the Supreme Court, civil society groups had successfully recast the choice as between the rule of law and lawlessness, a frame that resonated globally through transnational advocacy networks.
By 2002, the "rule of law" frame had gained global traction. A UN special rapporteur declared that Guantanamo "offend[ed] the first principle of the rule of law," the Inter-American Commission on Human Rights found detainees faced irreparable harm, the ICRC expressed concern about detentions "beyond the law," and a British Court of Appeal declared "deep concern" about Feroz Abbasi's indefinite detention with no judicial review. Nobel Peace Prize winner Shirin Ebadi and retired British law lord Lord Steyn both condemned Guantanamo, with Steyn famously calling it a "legal black hole."
Human rights lawyers strategically shifted the narrative from "terrorists versus government" to "rule of law versus government," recruiting amicus support from diverse voices including the American Bar Association, Parliament members, retired judges, military officers, and legal scholars. This framing ultimately proved more compelling than the administration's security arguments, particularly in the Supreme Court's enemy combatant decisions, where the justices repeatedly insisted that the war on terror must operate within legal constraints.
Capitolo 12
The Power of Transparency in Constitutional Defense
In October 2003, ACLU attorneys Jaffer and Singh filed a FOIA request that extracted nearly 6,000 documents totaling about 130,000 pages over more than a decade. The documents revealed FBI agents describing Guantanamo interrogation techniques as "torture," showed abuse extending beyond Abu Ghraib, and exposed President Bush's secret memo authorizing CIA secret detentions.
James Madison wrote that "popular Government, without popular information... is but a Prologue to a Farce or a Tragedy." This insight proved crucial in the war on terror, as the Bush administration repeatedly retreated or modified programs once they became public. The administration rescinded its torture authorization memo after it leaked to the Washington Post, ended warrantless surveillance after the New York Times exposed it, shut down CIA black sites after details appeared in newspapers, and reformed Guantanamo only after transparency was brought through released detainees' reports and lawyers' access.
Transparency about prisoner abuse likely influenced the Supreme Court's decisions in the enemy combatant cases. When the Court heard the Rasul and Hamdi cases in 2004, reports of Guantanamo abuse had already surfaced through the efforts of British lawyers. During oral arguments, Justices Stevens and Ginsburg questioned the government about torture limits, with Deputy Solicitor General Clement emphatically stating "our executive doesn't do that." That very night, CBS aired the Abu Ghraib photos, dramatically refuting these assurances.
Capitolo 13
Liberty Lives in the Hearts of Citizens
Abraham Lincoln understood that "public sentiment is everything"-a truth demonstrated by the constitutional campaigns for marriage equality, gun rights, and human rights in the war on terror. These movements focused on molding public opinion as much as shaping law, working outside courts as much as within them. Constitutional advocacy groups aren't beholden to majority opinion but defend principles even when unpopular.
Constitutional law isn't something that hovers above us to be enforced only by robed judges-it's something we all shape and preserve through participation. As Margaret Mead noted, "Never underestimate the power of a small group of committed people to change the world." The unprecedented threats posed by the Trump administration sparked remarkable popular resistance, with standing-room-only gatherings and record numbers of volunteers. Citizens across the country organized through grassroots efforts, demonstrating that in a democracy, power ultimately resides with the people who, properly focused, can preserve liberty from grave threats.
Though we conventionally understand constitutional law as something judges do, most work defending liberty happens outside federal courts by ordinary citizens. Even when the goal is changing constitutional law through court decisions, the principal venues for reform lie elsewhere-in city councils, state legislatures, state courts, Congress, executive branches, international bodies, and non-legal forums like media, academia, religious communities, and voluntary associations.
Constitutional reform can be slow and difficult-but that works to liberty's advantage. Constitutional change occurs incrementally over years, not overnight. Marriage equality progressed from academic papers to city benefits to state domestic partnerships to court decisions before reaching the Supreme Court. This slow pace of change benefits those defending liberty in the Trump era, as the Constitution was designed to constrain overconfident presidents.
Effective constitutional advocacy requires citizens acting together through organizations with the capacity, expertise, resources, and persistence for long-term campaigns. While social movements matter, those without institutional foundations often fade without lasting reform, as happened with Occupy Wall Street. Civil society organizations provide the structure needed to maintain focus over years. As British defense lawyer Gareth Peirce noted, defending liberty requires "using absolutely every tool you might have." Hope doesn't precede action-rather, "the action of the agent produces hope." By providing avenues for action, civil society groups foster the hope essential to a living Constitution.
