Vol. 16 No.2 (February 2006), pp.119-122
COURTS, LIBERALISM, AND RIGHTS: GAY LAW AND POLITICS IN THE UNITED STATES AND CANADA, by Jason Pierceson. Philadelphia: Temple University Press, 2005. 264pp. Cloth. $68.00. ISBN: 1-59213-400-9. Paper. $22.95. ISBN: 1-59213-401-7
Reviewed by Donald W. Crowley, Department of Political Science, University of Idaho
Email: Crowley [at] uidaho.edu
Jason Pierceson’s COURTS, LIBERALISM, AND RIGHTS is a timely book that provides an excellent account of the major legal developments in gay rights in the United States. Pierceson reviews major Supreme Court cases related to gay rights and provides extensive coverage of developments related to sodomy laws and same sex marriage at the state level. As an added bonus, he also includes a nice chapter outlining similar developments in Canada. The book raises important questions about the progress of gay rights and fills a useful role for those straining to keep up with legal developments in this evolving frontier of civil rights. Had the book been available late this summer I may well have used it in my Law & Society course.
While Pierceson’s extensive coverage serves a highly useful purpose, the book does strive to higher pretensions by couching the development of gay rights in broader theoretical contexts. Indeed, Pierceson hopes the book will not be seen as “niche scholarship” addressing issues of “significance to only a small segment of society” (p.20).
The first of Pierceson’s broader themes is to argue that the gay rights experience can serve as an example of how the courts can play an effective role in bringing about social change. “The book challenges the assertions of scholars regarding the ineffectiveness of courts in achieving significant political or social change” (p.4). Thus, Pierceson wants his book to be viewed, at least in part, as a response to Gerald Rosenberg’s THE HOLLOW HOPE. As most readers of LAW & SOCIETY BOOK REVIEW know, Rosenberg’s 1991 work was an impressive account of the difficulties courts face in bringing about social change. Rosenberg posits two opposing models of the Court, the dynamic and constrained models and argues that except when certain conditions are present the constrained model best describes court capacity. Pierceson, by contrast, argues that Rosenberg’s perspective is “overly simplistic” and fails to account for the manner in which “litigation and legal discourse can set new political and social agendas and change the terms of political debate by introducing new methods of argumentation” (p.7). By placing his work in the tradition of Michael McCann’s RIGHTS AT WORK, Pierceson contends that law and legal discourse play a more complex role in influencing social change than Rosenberg suggests. Pierceson may be right, but I found his evidence less than fully persuasive.
Ascertaining the role of courts in producing social change is certainly a [*120] complicated question, and disentangling change produced through court decisions from that produced through other mechanisms is quite difficult. Although Supreme Court decisions, like LAWRENCE (2003), may ultimately contribute to public acceptance of a right to choose one’s sexual partners, this was a trend already well in the making. Indeed, by the time of the LAWRENCE decision only thirteen states maintained laws like the one struck down. As Pierceson effectively illustrates, the shift between BOWERS (1986) and LAWRENCE was aided by many state courts decisions. Indeed the importance of state courts has been an untold story and is one of the most convincing points in Pierceson’s consideration of the issues. Nonetheless, some states altered their laws without the intervention of courts, and, given other shifts in our culture, it is not apparent whether courts were leading this revolution or simply verifying it.
Same sex marriage has become the latest manifestation of our continuing cultural war and potentially serves as another example of courts bringing about social change. Pierceson’s chapters on Hawaii and Vermont are interesting case studies, although Michael Mello’s book, LEGALIZING GAY MARRIAGE, provides a better description of the events in Vermont. Still, Pierceson does a nice job of situating these developments in the broader literature of judicial politics. Nevertheless, as Rosenberg suggests, we are still left with deciphering whether decisions like those in Vermont and Massachusetts will lead to greater public acceptance of same sex marriage or simply cause a backlash leading to state constitutional amendments across the land. Such a state backlash is, of course, important since we are unlikely to see the Supreme Court lead a revolution on this score, despite the evolving position of Justice Kennedy. While the jury is certainly still out, the 2004 election hardly provides support for Pierceson’s view. In reaction to cases like BAKER (Vermont) and GOODRIDGE (Massachusetts), eleven states passed constitutional amendments limiting same sex marriage. Of course, this is only the beginning, and one could argue that, in the long run, such decisions proclaiming the right to choose marriage partners regardless of gender will prove to have played a significant role in laying a foundation for recognition of essential dignity for all individuals.
This claim relates to the second major argument in Pierceson’s book. To what extent can liberalism as a public philosophy provide the language and support necessary to sustain the gay rights movement? Pierceson seeks to defend liberalism from attacks from both the left and the right. “Queer and critical theorists view liberalism as a mask for power and oppression of minorities, while communitarians, both left and right, see liberalism as a thin ideology, overly concerned with the individual at the expense of the needs of society” (p.33). Pierceson contends that liberalism provides a strong enough framework to protect the advance of gay rights. Interestingly though, Pierceson agrees with some of the criticisms of modern liberalism, finding it too “minimal, negative, and libertarian” (p.37) and that this thin form of [*121] liberalism threatens the acceptance of gay marriage.
According to Pierceson, over-reliance on negative rights comes at the expense of positive rights. In his view the removal of sodomy laws could gain widespread acceptance because it fits into the American cultural willingness to accept negative rights claims, while same sex marriage does not fit this frame as well because it requires government acceptance and recognition of the new status. Attacks on BOWERS and defenses of LAWRENCE, in terms of protecting a “right to be let alone,” do not go far enough in supplying a solid defense of why same sex couples should have the right to marry. Privacy, in this view, is too thin a justification to support same sex marriage. From its inception the constitutional right to privacy has been a right searching for a firm Constitutional foundation. As Pierceson notes, some arguments for privacy reduce it to a simple negative right to be left alone. Pierceson, relying on Rawls, Dworkin and Richards, strives for a richer liberalism that justifies gay marriage on the basis of concern for human dignity and individual autonomy. “This principle of ‘autonomy’ is not simply a freedom to be ‘left alone’; it posits that individuals make decisions and arrange their lives for personal self-development. A large part of this ordering . . . . includes love and sexual intimacy” (p.38). For Pierceson, this deeper recognition of human dignity is essential if governments are to recognize the importance of accepting gay marriage. Surprisingly, Pierceson does not spend much time exploring the difference between granting civil unions and recognizing gay marriage, other than to note the pragmatic point that allowing civil unions amounts to a step in the right direction.
Ultimately, Pierceson optimistically argues that court decisions, particularly those rooted in the richer liberalism of human dignity, have played an important role in advancing social change and protecting gay rights. “The ability of courts to set new agendas, frame political conflicts in liberal legal language that empowered sexual minorities, the leverage that litigation provided this minority, and the radiating effects of these arguments all have led to significant, though not complete, social change” (p.195).
This reviewer is not unsympathetic to these arguments, both in terms of the potential agenda-setting and rights-enhancing role of courts, as well as the need for a richer liberalism that supports a positive role for government in advancing human dignity.
Nevertheless, Pierceson’s evidence failed to persuade me that Rosenberg’s more limited role for courts was mistaken. Courts can only move societies so far. They have an easier time telling legislatures and law enforcement agencies that they cannot maintain and enforce discriminatory laws (like sodomy) than they do convincing legislatures and the public that personal decisions about with whom to live are entitled to equal respect. In this regard, I suspect that our culture is more easily affected by tragic events like Mathew Sheppard’s murder and moving love stories like BROKEBACK MOUNTAIN. Such developments, [*122] when aided by an organized and persistent social movement can bring about change. Courts, as Pierceson’s account suggests, can be important, but it is misleading to overemphasize the role they play.
McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: The University of Chicago Press.
Mello, Michael. 2004. LEGALIZING GAY MARRIAGE. Philadelphia: Temple University Press.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE. Chicago: The University of Chicago Press.
BAKER v. STATE, 744 A. 2nd 864 (Vt. 1999).
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
GOODRIDGE v. DEPARTMENT OF HEALTH, MASS. (Sup. Jud. Ct. Nov 18, 2003).
LAWRENCE v. TEXAS, 123 S. Ct. 2472 (2003).
© Copyright 2006 by the author, Donald W. Crowley.