Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors — social movements, the federal political branches, state and local political entities — play an important role in shaping constitutional meaning. But to date, the accounts of such scholars have largely focused on the ways that constitutional doctrine at the Supreme Court level — rather than throughout the federal judiciary — can be shaped by such popular constitutional influences.
In this Essay, Professor Katie Eyer draws on the events following the Obama Administration’s February 2011 Defense of Marriage Act (DOMA) announcement — and the history of gay equality litigation that preceded it — to develop a theory of the lower federal courts as participants in the popular constitutionalism dialogue. Tracing the approach of the lower federal courts to gay claims for heightened scrutiny in the period both preceding, and following the Obama Administration's announcement, Eyer shows that — unlike the Court itself — the lower courts have typically demanded authoritative doctrinal guidance before meaningfully shifting their constitutional approach. However, it appears that such guidance need not be provided by the Supreme Court itself, but may in some circumstances derive from authoritative popular constitutional actors, such as the President or Congress.
The Essay concludes by drawing on existing scholarship regarding lower court constitutional adjudication (and the role culture that surrounds lower court constitutional adjudication) to explain this history and to sketch a broader theory of the lower courts as potential receptive sites for popular constitutional influences. As this section describes, the history of lower court adjudication in the gay equality context is deeply consonant with what a broader theory of lower court popular constitutionalism would suggest, given the differing institutional roles ascribed to the Supreme Court and the lower federal courts as constitutional adjudicators.