Vol. 12 No. 7 (July 2002) pp. 322-324

GAY RIGHTS ON TRIAL: A REFERENCE HANDBOOK by Lee Walzer. Santa Barbara. California: ABC-CLIO, 2002. 310 pp. Cloth $55.00. ISBN 1-57607-254-1.

Reviewed by Donald Crowley, Department of Political Science, University of Idaho.

This book is part of a series of "On Trial" books that seek to analyze how the legal and political system has dealt with a variety of controversial issues. Previous volumes have dealt with such issues as voting rights, pornography, racial violence, and Native American sovereignty. As a source book I found GAY RIGHTS ON TRIAL to be valuable. As a work to assign to an undergraduate class, I have mixed emotions which I will discuss later.

This book by Lee Walzer is divided into two basic parts. The first part is the core of the work and the second part provides judicial opinions and statutes related to the controversy over gay rights. The first half of the book contains three chapters. First, Walzer provides an interesting chapter on the development of the gay rights movement. He follows with a chapter reviewing and analyzing four major court cases involving gay rights, and completes the analysis with a short chapter evaluating the impact of these cases on the future of gay and lesbian rights.

The first chapter does an excellent job of developing an historical overview of the gay rights movement and changing public attitudes toward gays and lesbians. Walzer's historical account also provides a brief examination of the tensions within the developing movement as it vacillated between those who sought assimilation into the larger community and those who advocated a more radical transformation of American society through identification with other oppressed minority groups. From Walzer's perspective the "Stonewall era marked the beginnings of significant gay and lesbian legal activism" (p. 53) and the rise of the Gay Activist Alliance which emphasized "the need to come out of the closet and organize into a political bloc…" (p. 53). The chapter also includes short discussions of the gay community's response to various events and developments like the assassination of Harvey Milk, the onslaught of AIDS, and the conflict over President Clinton's "don't ask don't tell" policy. Surprisingly, even after a passing reference to the hate crimes debate there is no reference to the murder of Matthew Shepard or how such events may have helped shift public awareness. As a brief historical account of the development of gay and lesbian consciousness, and especially as background for undergraduates who have little or no knowledge of the gay rights movement, the chapter works fairly well. On the other hand the chapter seems surprisingly detached from the rest of the book. Ostensibly the purpose was to provide readers with a way of understanding the relationship between gay activism and political and legal developments related to gay rights, but Walzer doesn't effectively integrate this historical account with the rest of his analysis.

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The next chapter involves an examination of four court decisions central to the legal debate over gay rights. Walzer reviews three U. S. Supreme Court decisions (BOWERS v HARDWICK, ROMER v. EVANS, and BOY SCOUTS v. DALE) and the Vermont Supreme Court decision dealing with same sex marriage (BAKER v. VERMONT). For each case Walzer provides an account of the majority and dissenting opinions and then offers his own analysis of the legal principles involved. Walzer's analysis of these cases is well done and his criticisms of the majority opinions in Bowers and Dale are effectively made. At a more general level, Walzer's basic argument is that legal analysis of gay rights claims is still in a rather undeveloped state, and the Supreme Court has failed to analyze gay rights claims in a manner consistent with the logic of its own precedents. While gay plaintiffs were losers in two of the three Supreme Court cases analyzed (HARDWICK and DALE), Walzer nevertheless finds reasons for gay rights groups to be optimistic. His optimism follows from two claims. First, he notes that, "Whether in employment discrimination, freedom of speech and association, or family law, the issues posed by sexual minorities are being heard and increasingly favorably adjudicated" (p. 142). Secondly, Walzer argues that even after losing in Dale gay rights advocates should find cause for optimism. This is because "one could see how the change in attitudes in American society toward gay rights had subtly influenced even the conservative justices on the Supreme Court, who adopted a respectful tone toward gay people even if their legal reasoning proved hostile to Dale's claims" (p. 142).

Walzer acknowledges that the Court majority has placed gay people in what he terms "a constitutional ghetto" and in cases like HARDWICK and DALE one finds evidence of "prejudice and stereotypes against gay men" (p. 149). Still, he concludes that the increasing visibility of gays and lesbians will make it harder "for courts to relate to gay people as exotic creatures from another planet" (p. 152.). "As this visibility continues to grow, legal issues brought by gay people to the court system will be seen as mere variations on traditional legal problems" (p. 153). To bolster his notion that gay groups will encounter increasing success in the courts Walzer provides a brief review of the advances made by gay and lesbian groups in other societies like Canada, Israel, and France. From this Walzer argues that it "is likely that some of these developing norms will influence American law and political decision making on lesbian and gay rights issues" (p. 167). Although interesting, this discussion is not well developed and doesn't really help to bolster his case that American society is tending in the same direction. Those who have long advocated the repeal of the death penalty might well question whether advances in other societies necessarily get reflected in the American legal system. This doesn't keep Walzer from his final claim that "as legal and political processes work their magic, lesbians and gay men, like other minority and immigrant groups before them, will become increasingly integrated into American society…" (p. 167).

The last half of the book contains various documents, court cases, statutes, and a chronology of key developments in the pursuit of gay rights. Having all of these cases and statutes in one readily accessible volume is certainly useful, although the lack of footnoting and references in the first part of the book is troubling. In a wide variety of places Walzer makes general claims and assertions without providing any sources to

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support his position. For instance, several times Walzer comments that gay rights advocates are making progress in the area of employment discrimination and family law. This may well be accurate, but Walzer doesn't develop this theme and provides no references for others to see how and why he comes to this conclusion.

I found this book difficult to evaluate. The historical overview contained in the first chapter can certainly be useful to many students asked, for the first time, to take a serious look at the gay rights movement. Walzer's analysis of major Supreme Court cases and the legal logic employed there is certainly informative and his critique effective. Why then am I ultimately unlikely to use this book even in a course like my Law and Society course where I have in the past spent a reasonable amount of time on gay rights? Ultimately, I think my reluctance is because the book is too narrowly focused on legal doctrine. The underlying assumptions too fixated on the notion that courts can lead or at least respond appropriately to calls for social change. Although noting the importance of the growing gay and lesbian movement, Walzer ultimately doesn't demonstrate how the movement has affected the cases he analyzes. Nor does Walzer provide the reader with an overall understanding of how political and legal change occurs in the United States.

As mentioned above, the book does not contain footnotes or any references to empirical evidence that would serve to support his generalizations or bolster his optimism that the legal system will soon stop putting gays in a legal ghetto. The book doesn't provide the type of empirical documentation that might help persuade reluctant students that gays and lesbians need protection from discrimination. Walzer is a lawyer and analyzing cases is, of course, what many lawyers do. Still, in a book of this nature it would be useful to provide some empirical support to show how public attitudes have been changing and in what ways the legal and political system has misunderstood the issues. Curiously, I don't disagree with Walzer's conclusion and indeed believe that slowly our legal system will cease to reflect the bias and prejudices of past antipathy to gay and lesbian rights. The problem is that unless one already believes that, I doubt if this book will persuade them. References to political and legal processes "working their magic" doesn't ultimately tell us much about how such difficult change comes about or what roles courts can or can't play in such processes. There is, of course, a great deal of social science literature that discusses the possibilities and limits of courts in producing or responding to social change. Walzer's work doesn't refer to any of them. This, I believe, reduces its usefulness.

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Copyright 2002 by the author, Donald Crowley.