Wednesday, May 29, 2013

What We're Reading: A History of Gay Marriage

by Jason Pierceson.

This is a newly published review of the history of same-sex marriage litigation in the United States, and there couldn’t be a more timely primer to the decisions expected from the Supreme Court this coming month. And yet things are happening so rapidly these days that already since the publication of this book three more states have approved gay marriage. Perhaps the major item missing from this current account is an analysis of the arguments presented by both sides before the court a little over a month ago now, and an analysis of what the questions the justices asked at that time might portend about their anticipated rulings on California’s Proposition 8 initiative and the cases before the Court that challenge the Federal Defense of Marriage Act (DOMA).  In spite of this omission, Pierceson’s account of the litigation and legislative history of same-sex marriage in the United States will give readers some idea of the way the Supreme Court is likely to rule in these cases, and indeed as the questions of the justices in the hearing indicate, Pierceson has so far proven prescient about the expected concerns and hesitations of the Court. But what makes this all rather exciting is that, with the Court’s deliberations carried on behind the scenes, you never know how things will fall out. Only a short time ago, Chief Justice John Roberts (to most pundits' surprise) supported the position of the Obama administration in a ruling before the Court concerning the new health care law. Current expectations are that the Court will not be willing to make a sweeping decision that overturns law in the many states that have established prohibitions on gay marriage, but will uphold the appellate Court’s overturning of California’s Proposition 8 on narrow grounds. It seems, however, that the federal Defense of Marriage Act may be in more trouble. The Court may reject it in part or in whole, which may be in the end the more important and ramifying ruling they make at this time. Whatever happens, the only thing we can be sure of is that the prose of Antonin Scalia’s opinion will make for fascinating reading.
Same-Sex Marriage in the United States, regardless of how one might feel about the subject or even the degree of interest one might have, is a fascinating book because Pierceson, taking the perspective of a political scientist rather than that of a legal scholar, gives readers insight into the complex way that legal change comes about in our country, the dynamic of social change, politics, and evolving legal thinking that can result in changes in both our popular and legal conception of individual rights and their Constitutional foundation.  Similar dynamics were at work in the development of the right to privacy and women’s rights, and in the elaborations of Civil Rights law in the late 20th Century, great social and legal stories in their own right; but Pierceson focuses here on the particular and unique battles in the history of same-sex marriage advocacy, showing the deliberation with which strategy has been developed on both sides of the issue. As a prelude to this discussion he looks at what has happened internationally on the issue of gay marriage. It is an overview that serves to demonstrate the differences between how the issue of gay marriage has been resolved in countries with common law traditions and in those with civil law traditions, where the judiciary has been more active in the former and the decisions of legislative bodies more paramount in the latter. The examination of how gay marriage has been established in other countries also tends to highlight the uniquely indigenous frustrations to rapid and conclusive change (the inherent conservatism) of our federal system of government here in the United States. These stories are interesting, especially when the author looks at some of the countries where such an action seems surprising and wholly unlikely. They serve to highlight the unpredictability of outcomes, particularly in countries that are undergoing rapid economic, social and political change.
The story of the successes and setbacks of advocates and opponents of gay marriage has been one shaped mostly by the particular social and political dynamics in individual states, largely because our federal system of government has left the establishment of marriage to the states. Success has depended on calculating carefully the timing and venue for litigation and legislative initiatives concerning gay marriage and domestic partner rights, and much debate has occurred within advocacy groups about the best strategy. The fear has always been that litigation, if it is unsuccessful, could result in legal precedent that sets back the cause of gay marriage for years (as it has in some states and also at the Federal level), or that court victories, if they came at a time when social and political conditions were not right in a state, could result in a backlash that resulted in the codification through state laws and constitutional amendments of restrictive bans on domestic partnership benefits and prohibitions of gay marriage, as indeed has been the case, particularly in the large number of DOMA initiatives that were passed in states during the 2004 election, initiatives that were part of the Bush campaign’s Presidential electoral strategy that year.
Advocacy groups have tried to discourage rogue litigation in those states where the risk of failure is high, and have tried to discipline and coordinate advocacy strategies. This has resulted in advocates and opponents doing what is called “forum shopping,” trying to figure out which states have histories of judicial activism or progressive legal traditions, which states have legal systems where it is either difficult or easy to enact amendments to state constitutions or laws, and which states provide windows of opportunity where one political party or another is in control of the legislature or the state house. The result has been that in some states gay marriage has been mandated by judicial decree and in other states it has been established by the state legislature. There has been an interesting political dynamic between domestic partnership law and gay marriage: in many cases, states have “upgraded” from domestic partnership legislation to gay marriage. And it has been one of the great curiosities of the debate over gay marriage that in many states public support for gay marriage has changed from a minority to a majority point of view. Where once advocates stressed minority and individual rights in making their arguments, and opponents pointed to popular disapproval, they often these days have traded ground, with advocates pointing to majority support and opponents arguing that individual rights concerning freedom of religion are now being threatened by the adoption of gay marriage.   
Pierceson has an identifiable partisan view--his commentary about the arguments in certain cases makes this clear--but history rather than polemic is the major focus of this book, and his history of cases here is workmanlike and thorough. The style of Same-Sex Marriage is academic and dry, but for all that it gives us a portrait of a democratic dynamic, the way in which people on both sides of a contest advocate and work to shape the system in which they live, that is engaging and in some ways uplifting.  What remains sobering here are the deep divisions regarding gay marriage that exist and seem likely to persist in the world and in the United States. There are theocratic and cultural traditions in areas of the world where any prospect for equality for gay people in domestic relationships is simply inconceivable, and there are areas of the United States, particularly in a number of Western, Mid-western and most Southern states that are not likely to move towards equality any time soon. The growing freedom in some countries in the world and in many states in the United States must only accentuate the feelings of personal diminishment, social exclusion, and legal  oppression that are the experience of gay people living in those places that are so resistant to embracing acceptance and legal change.

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