Said and unsaid: State legislative signaling to state courts over same sex marriage 1990-2004

From 1990 through 2004, same sex marriage emerged as a major policy issue. In responding to this controversial policy issue, many state legislatures demonstrated unusual behavior. A substantial minority of state legislatures continued to introduce new legislative bills on this topic long after the legal position of the respective state would indicate that the state had articulated a recognized and settled policy. In this article, we propose that the apparently aberrant behavior of these state legislatures can be explained in part by consideration of legislative signaling directed toward state courts. Specifically, we consider the attempt of state legislators to discourage intervention by the state courts around some policy issues.