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4 - The Courts

from Part II

Published online by Cambridge University Press:  23 July 2026

R. K. Maril
Affiliation:
Willamette University College of Law
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Summary

This chapter shifts addresses the advocacy agenda of the LGBTQ rights movement, specifically the pivotal role played by the US Supreme Court. In less than two decades, the Court recognized the right to engage in same-sex sex, mandated recognition of same-sex marriage, and interpreted Title VII of the 1964 Civil Rights Act to include discrimination on the basis of transgender status and sexual orientation as prohibited forms of sex discrimination. These developments fundamentally altered the legal lives of LGBTQ people. However, systemic efforts to undermine the integrity of the courts threaten these victories and the lives built around them. This chapter concludes that the current dominant interpretive approach of the US Supreme Court, known as originalism, is overly restrictive and arguably an expression of restorative nostalgia that prevents the Court from fulfilling its duty as a constitutionally mandated check against tyranny. An independent judiciary can serve as a powerful bulwark against democratic decline; however, courts can also provide a powerful legal veneer for otherwise patently autocratic policies. Democracy scholars refer to this as autocratic legalism. The increasing specter of autocratic legalism in the Unites States threatens to diminish the role of the Court as a tool for democratic self-defense.

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  • The Courts
  • R. K. Maril, Willamette University College of Law
  • Book: A Queer Guide to Saving American Democracy
  • Online publication: 23 July 2026
  • Chapter DOI: https://doi.org/10.1017/9781009858069.008
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  • The Courts
  • R. K. Maril, Willamette University College of Law
  • Book: A Queer Guide to Saving American Democracy
  • Online publication: 23 July 2026
  • Chapter DOI: https://doi.org/10.1017/9781009858069.008
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • The Courts
  • R. K. Maril, Willamette University College of Law
  • Book: A Queer Guide to Saving American Democracy
  • Online publication: 23 July 2026
  • Chapter DOI: https://doi.org/10.1017/9781009858069.008
Available formats
×