Vol. 13 No. 10 (October 2003)
SAME-SEX MARRIAGE, LEGAL MOBILIZATION, AND THE POLITICS OF RIGHTS by Martin Dupuis. New York: Peter Lang, 2002. 196 pp. Paper $29.95. ISBN: 0-8204-5560-1.
Reviewed by Daniel R. Pinello, Department of Government, John Jay College of Criminal Justice, City University of New York. Email: firstname.lastname@example.org.
For better or worse, same-sex marriage is upon us.
Listening to Republicans, for instance, one would think lesbian and gay neighborhoods resound with choruses of “Get Me to the Church on Time!” In June 2003, Antonin Scalia warned that the constitutional decriminalization of noncommercial sodomy between consenting adults in private inexorably leads to same-sex marriage—“[LAWRENCE v. TEXAS] dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Unsurprisingly, Scalia's LAWRENCE dissent mentions the word “sodomy” 38 times. Yet “marriage” and “marry” also appear there on 13 occasions.
In July, our accidental president responded to a generalized press inquiry about homosexuality with a sermon on sinners and the need to codify marriage as a union only between a man and a woman. In October, Bush proclaimed a “Marriage Protection Week,” emphasizing again that “[m]arriage is a union between a man and a woman.”
By mid-October, 96 members of the House of Representatives cosponsored the proposed Federal Marriage Amendment—“Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” The Senate Majority Leader has endorsed it.
Scholars have jumped on board the queer-marriage express, too. In the last three years alone, university presses and other academic publishers released at least nine titles on the topic (Babst 2002, Bourassa and Varnell 2002, Eskridge 2001, Gerstmann 2003, Goldberg-Hiller 2002, Merin 2002, Strasser 2002, Wardle et al. 2003, and the volume presently under review).
At a panel on “The Politics of Precedent” during the 2003 APSA conference in Philadelphia, someone in the audience asked how the overruling of BOWERS v. HARDWICK by LAWRENCE would impact the lower federal courts when they adjudicate future claims of sexual orientation discrimination in employment, including the military. The panel member's answer ignored the question's workplace context and leapt immediately to same-sex marriage.
Where did this brouhaha come from? Have lesbian and gay leaders been so successful at manipulating the national policy agenda? In fact, lesbians and gay men themselves don't think marriage is the most important issue facing their community. In opinion polls asking lesbian and gay respondents to rank the most pressing challenges to their civil rights, employment discrimination always tops the list. Indeed, through much of the 1990s, leading gay interest groups focused on facilitating legislation and case law forbidding sexual orientation discrimination in the workplace and actively counseled against adding marriage to the reform agenda.
Rather, as Martin Dupuis adeptly reveals in SAME-SEX MARRIAGE, LEGAL MOBILIZATION, AND THE POLITICS OF RIGHTS, just five Hawaiians (a Honolulu gay activist, a local straight attorney, and three state supreme court justices) a decade ago sparked America's obsession with gay marriage. In 1991, Bill Woods, the activist, “initiated the idea of a legal challenge to the state's marriage laws . . . [and] sought the assistance of the American Civil Liberties Union and the Lambda Legal Defense and Education Fund. Both organizations declined to support the case, fearing the creation of additional bad precedents on the issue as well as a conservative backlash”(p.49). Woods persisted, recruiting three couples as plaintiffs and persuading Daniel Foley, a lawyer handling mostly personal injury and criminal cases, to take a “loser” to court. The result was BAEHR v. LEWIN, the first judicial acknowledgment in this country of any right of gay people to marry. As Dupuis observes, the decision incited a political response never before seen over a state court case”(p.163).
The book is a meticulous history of the judicial, legislative, and political responses, here and abroad, to attempts by gay people to marry partners of the same sex or otherwise to achieve “the legal incidents” of marriage. The volume chronicles ten American cases ranging from Minnesota's BAKER v. NELSON in 1971 to Vermont's BAKER v. STATE in 1999, as well as federal and state legislative action. Its comparative section covers legislation from Denmark's Domestic Partnership Registration Act of 1989 to the municipal and congressional grappling with sexual orientation discrimination in Brazil, the world's most populous Roman Catholic country. The chapter also recounts international judicial decisions, beginning with case law applying Canada's Charter of Rights and Freedoms to same-sex marriage and ending with the legalization of common-law gay marriage by Hungary's Constitutional Court in 1995.
Yet the book's accomplishment is more modest than the ambition of its title. SAME-SEX MARRIAGE, LEGAL MOBILIZATION, AND THE POLITICS OF RIGHTS suggests the volume aims to rank with Stuart Scheingold's THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE and Michael McCann's RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Indeed, the first chapter outlines the modern debate over the role courts and law play in social reform, and the concluding section returns to that theme. In between, however, there is none of the primary research that characterizes the important scholarly contributions to this dialogue.
For example, McCann examined 28 instances of pay-equity battles at the state and local level. He interviewed more than 140 activists and performed content analyses of newspaper coverage on the topic. Moreover, an earlier volume (Schultz 1998) in the Peter Lang series of Teaching Texts in Law and Politics, of which the Dupuis book is an installment, offers a rich tapestry of original research responding to Rosenberg (1991) and ably advances the court-impact debate. In contrast, SAME-SEX MARRIAGE, LEGAL MOBILIZATION, AND THE POLITICS OF RIGHTS, despite its exhaustive description of same-sex marriage's legal and political evolution, supplies no systematic empirical investigation of whether legal mobilization and the courts were in fact vital forces in gay people's struggle for equal marriage rights.
Of course, a primary reason for this inadequacy is that the story is far from complete. As Dupuis himself acknowledges, “[a] resolution to the same-sex marriage issue [in the United States] is years away. . . .”(p.92). The supreme courts of Hawaii and Vermont are the only courts of last resort to rule favorably on the issue, although litigation is pending in Massachusetts and New Jersey. Accordingly, even though Dupuis' painstaking chronicle may be timely, the book's title and aspiration are premature.
In any event, the principal legacy so far of judicial intervention in this niche of our much ballyhooed culture wars is backlash. In 1996, Congress passed, and President Clinton signed, the Defense of Marriage Act, limiting federal recognition of marriage only to unions between a man and a woman. To date, 37 states have enacted similar legislation. The Federal Marriage Amendment is the next logical step for opposition forces. As currently proposed, the constitutional addition would wipe out all state judicial or legislative victories for marriage equality, even in the form of civil unions or domestic partnership rights. Thus, just as Klarman (2003) found that BROWN v. BOARD OF EDUCATION was ultimately most important for mobilizing southern white opposition to racial change, BAEHR and BAKER may be remembered, not as progenitors of some ineluctable judicial march toward equality, but rather as political kisses of death. The ACLU and Lambda Legal may have been prescient in 1991 to resist Bill Woods' activist impulse.
Babst, Gordon Albert. 2002. LIBERAL CONSTITUTIONALISM, MARRIAGE, AND SEXUAL ORIENTATION: A CONTEMPORARY CASE FOR DIS-ESTABLISHMENT. New York: Peter Lang.
Bourassa, Kevin, and Joe Varnell. 2002. JUST MARRIED: GAY MARRIAGE AND THE EXPANSION OF HUMAN RIGHTS. Madison, WI: University of Wisconsin Press.
Eskridge, William N., Jr. 2001. EQUALITY PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS. New York: Routledge.
Gerstmann, Evan. 2003. SAME-SEX MARRIAGE AND THE CONSTITUTION. New York: Cambridge University Press.
Goldberg-Hiller, Jonathan. 2002. THE LIMITS TO UNION: SAME-SEX MARRIAGE AND THE POLITICS OF CIVIL RIGHTS. Ann Arbor, MI: University of Michigan Press.
Klarman, Michael J. 2003. FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY. New York: Oxford University Press.
McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.
Merin, Yuval. 2002. EQUALITY FOR SAME SEX COUPLES: THE LEGAL RECOGNITION OF GAY PARTNERSHIPS IN EUROPE AND THE UNITED STATES. Chicago: University of Chicago Press.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Scheingold, Stuart A. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE. New Haven, CT: Yale University Press.
Schultz, David A. (ed.) 1998. LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang.
Strasser, Mark. 2002. ON SAME-SEX MARRIAGE, CIVIL UNIONS, AND THE RULE OF LAW: CONSTITUTIONAL INTERPRETATION AT THE CROSSROADS. Westport, CT: Praeger.
Wardle, Lynn D., Mark Strasser, William C. Duncan, and David Orgon Coolidge. 2003. SAME-SEX UNIONS: A DEBATE. Westport, CT: Praeger.
BAEHR v. LEWIN. 1993. 74 Haw. 645, 852 P.2d 44.
BAKER v. NELSON. 1971. 291 Minn. 310, 191 N.W.2d 185.
BAKER v. STATE. 1999. 170 Vt. 194, 744 A.2d 864.
BOWERS v. HARDWICK. 1986. 478 U.S. 186.
BROWN v. BOARD OF EDUCATION. 1954. 347 U.S. 483.
LAWRENCE v. TEXAS. 2003. ___ U.S. ___, 123 S.Ct. 2472.
Copyright 2003 by the author, Daniel R. Pinello.