Vol. 28 No. 6 (September 2018) pp. 88-90

THE FUNCTIONS OF LAW by Kenneth Ehrenberg. New York: Oxford University Press, 2016. 217pp. Cloth $95.00. ISBN 978-0-19-967747-4.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email:

Kenneth Ehrenberg states that the aim in his new book THE FUNCTIONS OF LAW is to help understand the “purposes, plans, and goals” of law, which will, he thinks, ultimately help us better understand “ourselves” (p. 198). More specifically, the book is an entry into the Legal Positivist/Natural Law debate, a debate that has been going on for well over a century. The central issue in this debate is how to explain the normativity of law: why we feel that law is binding on us. The book will not be easy reading for those not well-versed in this debate; Ehrenberg assumes a lot of background knowledge of the issues, and much of the book is concerned with discussing recent developments especially in the positivist camp. Ehrenberg broadly endorses the positivist position, and seems to aim the book at other positivists, though he is often less than clear in the book about just where he stands.

The basic thesis of the book is a defense of the idea that the law should be understood in terms of its functions. To many readers it will no doubt come across as surprising that such a position needs to be defended: is it not obvious that law, like any human institution, serves various functions in society? However, some legal positivists have been concerned to deny such a functional view, apparently as a reaction against the Natural Law position. It is not entirely clear what it would even mean to deny that law is a functional entity. Apparently, some positivists think that law has too many different sorts of goals for it to be uniquely characterized in terms of its functions. But as Ehrenberg responds, law can have multiple functions, and it can share its functions with other institutions, yet it is no less a functional entity for that. This seems very reasonable, but one is left wondering why positivists would be motivated to take such an odd position, and it would be have been useful to further explore this position.

The book is argued at a highly abstract level, so much so that many non-philosophers (and many philosophers not familiar with the positivist/Natural Law debate) may find it challenging to read. For example, though the central topic of the book is the functions of law, there is no actual discussion of what those functions are until the very end of the book, in Chapter 8 entitled “The Functions Themselves.” Here, the author provides an overview of the literature, describing how different writers have described the functions of law. These functions include creating social order, solving coordination problems, providing standards of behavior, and of course promoting justice and the common good. Some readers may wish that this sort of discussion constituted the main body of the book rather than a brief discussion at the end, given the goal of the book to help us understand the purposes and goals of law.

Ehrenberg’s method of doing philosophy may also make this difficult reading for many non-philosophers. Consider for example the amount of conceptual apparatus introduced to explain how a stone wall can function as a boundary (p. 34). To explain this fact, Ehrenberg draws on “collective intentions,” “social facts,” “impersonal deontic powers,” “institutional status,” “status functions,” types versus tokens, and “status function codification.” It is by no means clear that introducing all this quasi-technical jargon effectively clarifies the problem rather than complicates it. This is not to deny the difficulty of the issue: how does a stone wall take on social significance? It is essentially the same problem of explaining how law can function by creating rights, duties, and obligations. Much of the book is devoted to this method of explanation by introducing new distinctions; Ehrenberg for instance draws on proper versus Cummins functions, constitutive [*89] versus regulative rules, collective acceptance versus teleological accounts, functional versus modal kinds. All of these distinctions are controversial and problematic in themselves. I think there should be a high bar in introducing new and more complex distinctions: do they prove their usefulness by helping us understand and explain the topic in question? Do these distinctions explain how a stone wall can be a boundary marker? It is not clear to me that they do.


Vol. 28 No. 6 (September 2018) pp. 84-87

IS RACIAL EQUALITY UNCONSTITUTIONAL? by Mark Golub. New York: Oxford University Press, 2018. 210pp. Cloth $65.00. ISBN: 978-0190683603.

Reviewed by Leslie F. Goldstein, Professor Emerita, Department of Political Science. University of Delaware. Email:

The preface of Mark Golub’s book IS RACIAL EQUALITY UNCONSTITUTIONAL? observes that a color-blindness requirement for US. law has a paradoxical “race-intensifying effect” (p. x). The author means this in two senses. First, the knowledge that decision-makers must refrain from considering race in their decisions has the effect of intensifying rather than diminishing their consciousness of race because race in the U.S. so deeply permeates our psycho-social reality (pp. 25-26). Secondly, if decisions about hiring for desirable jobs and college acceptances are made in a color blind fashion, such decisions would freeze into place existing disparities of income and other life advantages in the U.S. (which is the very reason that affirmative action programs developed in the first place.)

While the book offers a number of interesting and even eye-opening insights along with an impeccably accurate history of Supreme Court decisions on segregation, desegregation and affirmative action, on the whole it disappoints. Golub acknowledges that the term “constitutional” (as in the book’s title) is open to two meanings (p. xi). It can carry the normative meaning – constitutional according to the Constitution read in its best lights, as it ought to be interpreted; or, it can carry the empirical/predictive sense – constitutional according to how the U.S. Supreme Court justices have been recently interpreting, and are likely to be continuing to interpret, the Constitution. After laying out these options in the Preface, Golub by the end of the book has dropped the normative option, and ends with what reads to me as a descent into hopelessness. Because of its slavery and post-Reconstruction past, its present system of racial hierarchy in general distribution of benefits, and the Supreme Court’s current trajectory toward totally abolishing affirmative action, Golub concludes that the U.S. Constitution is irredeemably opposed to racial equality.

He comes to this conclusion after first tracing the views of legal scholars who defend and critique what he calls “color blind constitutionalism” (i.e., opposition to affirmative action) (chs. 1 and 2), in the process noting that both liberals and conservatives view a color-blind legal system as that to which the Constitution aspires (either immediately, per the conservatives, or, per liberals, eventually, once material racial equality is attained). Golub then in chs. 3-5 traced the Supreme Court’s path toward color-blind constitutionalism from its beginnings in PLESSY V. FERGUSON (1896) to its near-explicit enactment in the recent anti-affirmative action decisions such as PARENTS INVOLVED IN COMMUNITY SCHOOLS V. SEATTLE (2007) and RICCI V. DI STEFANO (2009). Golub treats this Supreme Court trajectory as though it were the only way to read the Constitution or somehow the way it will inevitably be read. Therefore, for Golub, the only path to racial justice would be to embrace “a decisive break from [American values]” (p. 168). With italicized emphasis, he urges readers to accept the belief that “racial equality may in fact be unachievable within the current American constitutional order” (p. 164).


Vol. 28 No. 6 (September 2018) pp. 82-83

LANGUAGE AND THE LAW: LINGUISTIC INEQUALITY IN AMERICA, by Douglas A. Kibbee. Cambridge, United Kingdom: Cambridge University Press, 2016. 240pp. $30.99. ISBN: 978-1-107-02531-8. ISBN: 978-1-107-62311-8.

Reviewed by Sixuan Lu, Tianjin University Law School. Email:

In his book LANGUAGE AND THE LAW: LINGUISTIC INEQUALITY IN AMERICA, Professor Kibbee provides comprehensive statutory and case law analysis for readers to understand the complicated relationships between language and equality, democracy, the legal system, education, government, and employment. This book review will introduce the summary of each chapter and subsequently give personal opinions.

In Chapter One, the author establishes the big picture of potential linguistic inequity and fairness issues by defining discrimination (pp. 3-4), providing a short history of relevant human rights in the international tradition and the American tradition (pp. 4-12), and explaining groups, classes and classifications (pp. 12-18). He states that the language is frequently considered under the rubric of national origin rather than of race (p.18). The author suggests the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause of the U.S. Constitution might be useful for understanding linguistic discrimination (pp. 19-32).

The second chapter mainly addresses voter identification and registration as restrictions which aim to suppress minority language speakers’ participation in the electoral process. This serves an anti-democratic purpose, especially on the assumption that knowledge of English has no guaranty against voting in ignorance, or against manipulation by demagoguery, or direct voter fraud (p. 36).

Chapter Three explains the unfair legal system for linguistic minorities particularly for interpreters (pp. 54-68) and jury members (pp. 68-82). Those who speak English as a second language need special services at every stage of the legal process including not only litigation for criminal, civil, and administrative cases, but also interacting with police or other agencies (p. 55). Impartiality raises two issues with language: first on the exclusion of linguistic minorities from the jury pool, and secondly on the ability of a juror to comprehend non-English testimony (p. 68).


Vol. 28 No. 6 (September 2018) pp. 76-81

THE TRANSPARENCY FIX: SECRETS, LEAKS, AND UNCONTROLLABLE GOVERNMENT INFORMATION, by Mark Fenster. Stanford: Stanford University Press, 2017. 296pp. Cloth $85.00. ISBN: 978-1-50-360171-0. Paper $25.95. ISBN: 978-1-50-360266-3. Digital $18.65. ISBN: 978-1-50-360267-0.

THE ART OF REVOLT: SNOWDEN, ASSANGE, MANNING, by Geoffroy De Lagasnerie. Stanford: Stanford University Press, 2017. 128pp. Cloth $60.00. ISBN-13: 978-1-50-560014-0. Paper $18.95. ISBN-13: 978-1-50-360332-5. Digital $9.99. ISBN-13: 978-1-50-360324-0.

Reviewed by Daniel N. Hoffman, Professor Emeritus, Johnson C. Smith University. Email:

These two books each raise radical challenges to conventional thinking about the tensions between democratic theory and the modern administrative state. Both authors focus on secrecy. Democracy presupposes that the press and public must be generally well-informed about government policies and actions, yet both authors see the constant efforts of politicians and bureaucrats to restrict access to information as inconsistent with this norm.

The conventional view seeks to balance governments’ acknowledged needs for secrecy against the transparency mandated by democratic theory. Fenster, however, argues that transparency is an unrealistic and theoretically incoherent ideal. In sharp contrast, De Lagasnerie argues that the state is inherently undemocratic and thus illegitimate.

Fenster is a law professor, well-schooled in empirical social theory. He believes that the “transparency fix,” defined as reliance on laws that mandate access to governmental information, depends on the unrealistic idea that “a truly democratic state transparently and perfectly communicates its actions to its truly democratic, engaged citizens” (p. 5). Legal reforms, he says, have barely dented the gigantic pool of classified documents, and most transparency advocates feel obliged to recognize “a set of exceptions to disclosure that are as broad and opaque as the transparency norms themselves” (p. 10), making their vision unattainable. Yet practitioners of secrecy are equally unrealistic in thinking that they themselves can control the state’s flow of information.

Fenster’s historical narrative focuses on the rise of “freedom of information” and the “right to know” as cherished principles in the WWII period, and their incorporation in law in the 1960s and 1970s. Advocates drew on Locke, Mill, Rousseau, Bentham, Kant, John Adams and Madison to argue that transparency is crucial for instilling and supporting democratic values, curbing corruption and waste, and (for some) allowing direct popular self-rule. Transparency advocates hoped that US courts would recognize this principle as encompassed within the First Amendment, but the courts declined to do so.


Vol. 28 No. 6 (September 2018) pp. 73-75

STOP AND FRISK: THE USE AND ABUSE OF A CONTROVERSIAL POLICING TACTIC, by Michael D. White and Henry F. Fradella. New York: New York University Press, 2016. 256pp. Cloth $23.53. ISBN-10: 1479835889.

Reviewed by Jeffrey Ian Ross, University of Baltimore. Email:

This book, consisting of six chapters and an epilogue, written by White and Fradella, two well respected criminologists and policing scholars at Arizona State University, examines the history of stop, question and frisk (SQF) in the United States, and the legal cases and scholarly research connected to this practice. In short, the writers review how in some cases stops by law enforcement officers are more or less serious and whether the evidence collected because of the stop and arrest of the individual can be admissible in a court of law.

In Chapter 1, “Two Tales of Stop and Frisk,” the shortest chapter, the authors analyze the infamous TERRY V. OHIO case (1968), which, according to the authors, “formalized the authority of the police to stop citizens on the street based on a standard of proof lesser than probable cause, and it also gave them the right to conduct superficial ‘pat down’ searches of those citizens whom the stop…” (p. 2). One of the reasons for focusing on this practice is because “the term ‘stop and frisk’ has in many places become synonymous with racial profiling” (p. 7). White and Fradella state that, “The central focus of this book is the disconnect between current perceptions of SQF as a form of racial discrimination by police and the strategy’s historical, legal, and discretionary foundations” (p. 8). The writers end the chapter by arguing that, “in twenty-first century policing, SQF should be assessed in terms of both legal … and procedural justice standards” (p. 15).

Chapter 2, “The Historical Context,” outlines the history of SQF. This chapter reviews important court cases and the differences in the burden of proof practice. This part of the book outlines the relevant components of the Fourth Amendment (which protects citizens against unreasonable search and seizure). The authors state that, “The Reasonableness Clause of the Fourth Amendment limits government authority to conduct ‘search and seizures,’ but does not define what those terms mean” (p. 24). They also analyze the Uniform Arrest Act that was introduced in 1939.

Chapter 3, “The Contemporary Legal Context,” examines research on implicit bias and “the free to leave test.” It also considers the notion of “furtive gestures” as a pretext for stops. The authors review numerous court cases that relate to SQF. White and Fradella argue that, “TERRY and most of the SQF cases decided since 1980 collectively ignore the fundamental problems with using a low standard of proof that invites the use of racial, ethnic, and socioeconomic class stereotypes as part of a calculus of suspicion” (p. 78). Also examined are three important Supreme Court decisions: TERRY V. OHIO, SIBRON V. NEW YORK, and PETERS V. NEW YORK. These “cases adopted formal rules governing police-initiated street encounters with citizens under circumstances amounting to less than full arrests” (p. 44). The authors also look into the notion of implicit racial bias (pp. 64-65). They state, “unconscious cognitive processes often lead people of all races to view young Black men with suspicion” (p. 65).


Vol. 28 No. 5 (August 2018) pp. 70-72

BALLOT BLOCKED: THE POLITICAL EROSION OF THE VOTING RIGHTS ACT, by Jesse H. Rhodes. Stanford: Stanford University Press, 2017. 264pp. Cloth $90.00 ISBN: 0-80479-759-5. Paper $27.95 ISBN: 1-50360-351-2.

Reviewed by Kyle L. Kreider, Department of Political Science, Wilkes University. Email:

One of the more startling and consequential decisions of the Supreme Court’s 2012 term was SHELBY COUNTY V. HOLDER (2013). The ruling in the case struck down Section 4 of the Voting Rights Act of 1965 (VRA), a provision which established the formula to determine which governmental entities would be required to seek preclearance from the federal government before changing its election law. How could the Supreme Court strike down a provision that had been a bedrock of civil rights voting law for almost 50 years and had just been renewed by overwhelming majorities in the House and Senate in 2006?

In this timely, well-researched book, Rhodes answers this question by providing the appropriate context and helping the reader understand the historical development of federal voting rights politics. Specifically, Rhodes provides answers to why did “key conservative Republican officials consistently adopt administrative and judicial decisions that undermined the very legislation they previously endorsed?” and “why did the legislative text, administrative implementation and judicial interpretation of the VRA so frequently [work] at cross-purposes?” (pp. 3-4)

While political scientists have often debated which institution – the executive branch or the judicial branch – is best equipped to advance civil rights, Rhodes contends that the argument is “somewhat misplaced” because we should instead think of our branches of government as “fairly fluid institutions whose influence on civil rights policy making can vary dramatically depending on who is occupying them and for what purposes” (p. 5). While the Warren Court and Democratic-leaning bureaucrats have often interpreted the VRA in an expansive way, the Burger, Rehnquist, and Roberts Courts, and Republican-led agencies have often provided more restrictive and state-friendly interpretations of the VRA.

A strength of the book is its process-tracing approach and how that methodology is articulated in the organization of the chapters. In Chapter 1, Rhodes explains the historical context and politics that led to the passage of the VRA as well as the difficulties associated with immediate implementation of the act. Specifically, President Johnson had to manage competing demands within the Democratic Party as well as Republicans who were skeptical of what the administration might attempt to get through Congress. Rhodes notes that “[s]uccessful negotiation of these difficulties required all of the president’s legislative prowess as well as compromise on the part of civil rights activists and liberals who had desired stronger legislation” (p. 37). In the end, the White House, members of Congress, and civil rights activists all had to compromise in order to pass the Voting Rights Act of 1965.


Vol. 28 No. 5 (August 2018) pp. 68-69

BUDDHISM, POLITICS AND THE LIMITS OF LAW: THE PYRRHIC CONSTITUTIONALISM OF SRI LANKA, by Benjamin Schonthal. New York: Cambridge University Press, 2016. 304pp. Hardback $116.00. Paper $35.99. ISBN: 9781316606414.

Reviewed by Tamir Moustafa, School for International Studies, Simon Fraser University, Canada. Email:

Recent years have seen explosive growth in research examining the intersection of comparative constitutional law and religion. Interestingly, much of this new work is produced by scholars with no formal training in law; perhaps half or more comes from scholars of religion, anthropology, history, and politics, all of whom are increasingly drawn to the study of legal institutions to better understand and document the profound “radiating effects” of law (Galanter 1983) on religion, politics and society.

Benjamin Schonthal’s BUDDHISM, POLITICS AND THE LIMITS OF LAW: THE PYRRHIC CONSTITUTIONALISM OF SRI LANKA represents the best of this work. It underlines the critical importance of a law and society approach for anyone wishing to gain insight into the promise and perils of constitutionalizing religion and religious freedom. The book builds upon Schonthal’s dissertation, which won the Law and Society Association’s Dissertation Award in 2013. Although his formal training is in religion, Schonthal’s book is essential reading for anyone wishing to understand the ways that state management of religion and religious freedom increasingly shape a range of important social, political, and religious dynamics.

The book advances a bold argument: Rather than consistently mitigating disputes over religion, constitutional protections on religion and religious freedom instead frequently exacerbate social and political tensions. The argument builds on an impressive foundation of over 14 months of fieldwork in Sri Lanka and extensive engagement with primary source material across four languages (English, Sinhala, Tamil, and Pali). The in-depth treatment of a single country case study allows Schonthal to develop and substantiate his argument in a manner that would not be possible in a large-N or multi-country study.

The introductory chapter sets the stage for a probing assessment of the assumption that constitutional protections on religious freedom invariably work to ameliorate religious conflict. The empirical chapters then assess this common supposition against the experience of Sri Lanka since independence. Part One of the book (Chapters 2-4) provides a detailed historical account of the development of Sri Lanka’s constitutional framework vis-à-vis religion. Schonthal draws on drafting documents, oral histories, submissions from citizens and civil society groups, government memoranda, and transcripts of debates to detail the points of disagreement over constitutional text. Schonthal zeros in on the efforts of Ceylonese and Sri Lankan politicians to reconcile a “promotional paradigm” (one that is concerned with promoting rights and protections for Buddhism specifically) with a “protectionist paradigm” (one that is concerned with protecting the fundamental rights for all citizens). The “Buddhism Chapter” of the Constitution of Sri Lanka thus affirms that the state “shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana” (p. 10). This clause is then immediately balanced with explicit reference to a variety of liberal rights, including the right to religious freedom. Schonthal shows how these parallel commitments were the result of efforts to bridge disagreements, a familiar dynamic in constitution-drafting processes (Lerner 2011; Bâli and Lerner 2017).


Vol. 28 No. 5 (August 2018) pp. 65-67

THE FOURTH AMENDMENT IN FLUX: THE ROBERTS COURT, CRIME CONTROL, AND DIGITAL PRIVACY, by Michael C. Gizzi and R. Craig Curtis. Lawrence, KS: University Press of Kansas, 2016. 188pp. Paper $19.95. ISBN: 9780700622573.

Reviewed by Staci L. Beavers, Department of Political Science, California State University San Marcos. Email: 

In today’s relentless and exhausting “breaking news” environment, publications risk obsolescence even before hitting the presses (or the web). To review a book with a publication date of 2016 in the Spring of 2018 almost isn’t playing fair. But Michael C. Gizzi and R. Craig Curtis’ THE FOURTH AMENDMENT IN FLUX: THE ROBERTS COURT, CRIME CONTROL, AND DIGITAL PRIVACY is holding up well so far. It’s still timely now, given its effective preview of what came to the Court in its most recent term as CARPENTER V. UNITED STATES. CARPENTER focused on warrantless government access to several months’ worth of Cell Site Location Information (CSLI) data and was probably the most highly anticipated Fourth Amendment case of the last several SCOTUS terms. Gizzi and Curtis’ thoughts on other Fourth Amendment controversies now working their way up to the Supreme Court remain to play out over the next several years. As these controversies develop, Gizzi and Curtis’ book can continue to provide helpful context for students as well as readers outside the academic world who are interested in understanding both the Supreme Court’s Fourth Amendment jurisprudence over time and where the Roberts Court may take the Fourth Amendment into the future.

To my own detriment, I got the chance to review this book only after wrapping up my first semester of teaching undergraduate constitutional law after several years away from the classroom. In retrospect, reading THE FOURTH AMENDMENT IN FLUX first would have provided me a solid but quick-read refresher on the evolution of Fourth Amendment jurisprudence since before the Warren era and an excellent update on the Fourth Amendment record of the Roberts Court. The book benefits from bringing together multiple disciplinary perspectives: Michael C. Gizzi is a criminal justice scholar and R. Craig Curtis is both a J.D. and a political scientist.

The authors argue that the Roberts Court is potentially standing at a crossroads with respect to the Fourth Amendment. A majority of the Roberts Court remains committed to and has expanded upon what Herbert Packer (1968) long ago labeled a “crime control” orientation in most search and seizure cases, an orientation which has dominated the Supreme Court since the Burger era. However, those cases implicating technologies widely used by the American public may ultimately push the Court to reconsider the Fourth Amendment’s requirements somewhat more broadly.

Gizzi and Curtis discuss a notable uptick in pro-defendant Fourth Amendment rulings since October 2010. They attribute this shift in part to the thinking of Justices Sonia Sotomayor and Elena Kagan and in part to a shift in the Fourth Amendment thinking of the late Justice Antonin Scalia in the latter years of his life. They caution, however, that most of the Roberts Court’s pro-defendant Fourth Amendment decisions serve primarily simply “to curb some of the excesses of law enforcement” (p. 6) allowed by previous crime control-leaning rulings. They illustrate the Roberts Court’s continued support for crime control principles by noting, for example, that several rulings that find in favor of defendants also provide tips to lower court judges and law enforcement officials to minimize their impact on remand (pp. 140-141) and to avoid dismissals or reversals in future Fourth Amendment cases (p. 76). FLORIDA v. J.L. (2000) provides an example of this latter tactic; here the Court provided guidance to lower court judges on how to allow stops based on anonymous tips by discussing [*66] “what constitutes sufficient indicia of reliability for an anonymous tip” (p. 76).


Vol. 28 No. 5 (August 2018) pp. 59-64

GAY RIGHTS AND THE CONSTITUTION, by James Fleming, Sotirios Barber, Stephen Macedo, and Linda McClain. St. Paul, MN: Foundation Press, 2016. 463 pp. Paper $35.00. ISBN: 978-1-634-60268-6.

Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email:

When GAY RIGHTS AND THE CONSTITUTION (hereinafter referred to as GRC) came out, it looked like the perfect book for my legal philosophy seminar. I wanted to focus on the coming clash before the U.S. Supreme Court between gay rights and religious liberty, a clash created by the Court itself. In full disclosure, I requested to write this review because, having used the casebook twice for my seminar, I felt I was in a good position to assess its usefulness and benefits for other instructors.

Quoting from the Preface, the editors note that “[d]espite dramatic changes in American constitutional law regarding sexual orientation over the last two decades, and despite the general public’s keen interest in these changes, a brief collection of the leading judicial opinions has yet to be published.” GRC was intended to “fill this need,” and the editors “have tried to make it accessible to a wide range of students, scholars, and educated citizens with no specialized background in constitutional law” (p. iii).

GRC is a casebook, which is usually intended for use in post-graduate law courses, with content consisting primarily of edited legal cases to “show[] the evolution of judicial doctrine in a particular area of the law” (p. iii). But in addition to functioning as a casebook, the editors also wanted GRC to “look[] beyond judicial doctrine” and try to “connect the gay rights debate to issues of longstanding importance about the best conception of the form of democracy embodied in the Constitution, the Constitution’s basic normative properties, the principles of individual liberty and equality, and the role of the judiciary” (p. iii).

GRC succeeds in accomplishing these stated aims. It is suitable for use in both law school and undergraduate courses. As a casebook, which tend to focus on “black-letter law,” GRC introduces law students to legal doctrines “involv[ing] a broad range of substantive issues, like the jurisprudence of personal liberty, equal protection, freedom of association, free exercise of religion, and freedom from establishment of religion” (p. iii). But it is also suitable for undergraduate courses, which tend to have a broader liberal-arts focus.


Vol. 28 No. 5 (August 2018) pp. 56-58

AMERICA'S WAR ON SAME-SEX COUPLES AND THEIR FAMILIES: AND HOW THE COURTS RESCUED THEM, by Daniel R. Pinello. New York: Cambridge University Press, 2017. 330 pp. Cloth $89.87. ISBN: 9781107123595. Paper $33.03. ISBN: 9781107559004.

Reviewed by Erin M. Mayo-Adam, Department of Political Science, Hunter College, CUNY. Email:

In AMERICA’S WAR ON SAME-SEX COUPLES AND THEIR FAMILES: AND HOW THE COURTS RESCUED THEM, Daniel R. Pinello provides a masterful account of how lesbian and gay couples were impacted by Super DOMAs and how they effectively fought back against the anti-gay movement through litigation, culminating in the legalization of marriage equality through the Supreme Court decision OBERGEFELL V. HODGES in 2015. AMERICA’S WAR serves as the bookend to Pinello’s excellent 2006 book AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE. As in AMERICA’S STRUGGLE, Pinello’s most recent book articulates a compelling argument supporting the use of courts in struggles for social change. In doing so, the work re-enters a decades-long scholarly debate about whether or not the courts can ever serve as vehicles for achieving rights wins. Pinello incisively illustrates how courts have played a decisive role in securing the right to marriage for lesbian and gay couples. The volume focuses on the trauma same-sex couples experienced during Super DOMA campaigns, what happened to these couples and their families after Super DOMAs became law, and the role the courts played in eliminating Super DOMAs across the United States.

AMERICA’S WAR digs deeper into the role of the courts in movements for social change than Pinello’s previous work. The book uses rich ethnographic data – 203 in-depth interviews with same-sex couples across six different states – to illuminate the interdependence between courts and politics in struggles for change. Pinello persuasively articulates how the way local courts interpreted Super DOMAs often depended on the activities of interest groups. The impacts of Super DOMAs varied across the different states in Pinello’s study and that variation could be explained in part by the local power of anti-lesbian and gay interest groups. The more institutionalized and well-funded the organization, the more likely courts would restrict the rights of lesbian and gay couples when interpreting the extent of Super DOMAs.

The volume has several strengths. It compellingly illustrates how same-sex couples were impacted by Super DOMAs from the standpoint of the couples themselves. The book is an oral history of one of the darkest moments in recent history for lesbian and gay couples. The narrative is told through the lens of same-sex couples who lived through Super DOMA campaigns. This is a novel approach when it comes to scholarship and popular histories on same-sex marriage and the courts, which tends to overemphasize the role of national organizations. Pinello rightly identifies grassroots campaigning as the epicenter of the war on the rights of same-sex couples in the 2000s. This is refreshing in the field of law and politics, where scholarship too often examines only courts and political institutions without also analyzing the role that everyday people at the grassroots level play in the formation of law. Through this approach, Pinello not only delineates the concrete ways that lesbian and gay couples were negatively impacted by Super DOMAs, but he also illuminates how these laws motivated lesbian and gay couples to organize politically and to “steel themselves for more open lives as proudly lesbian and gay citizens of [*57] their state” (p. 63). This perseverance is awe-inspiring in light of the fear, insecurity, and emotional loss Pinello’s interviewees articulate in response to the ratification of anti-lesbian and gay laws. Pinello brilliantly crafts a narrative driven by these interviews, which makes the book a must-read for scholars of law and politics.

In addition to his ethnographic research, Pinello also analyzes how lower court interpretations of the 2013 Supreme Court case UNITED STATES V. WINDSOR set the stage for OBERGEFELL V. HODGES. It is in this analysis that Pinello shows how notoriously anti-gay Justice Antonin Scalia’s dissent in WINDSOR backfired in spectacular fashion. Pinello finds that Scalia’s dissenting opinion, which articulates how the logic of WINDSOR can be used to strike state laws banning same-sex marriage, was used by 65 percent of “federal trial-court dispositions that found a marriage right for same-sex couples” (p. 237). In addition to the intriguing role Scalia’s dissent played in lower court decisions supporting a right to marry, Pinello also debunks the claim made in Chief Justice Roberts’ dissent in OBERGEFELL that those who supported bans on same-sex marriage were not motivated by animus towards same-sex couples. Pinello expertly eviscerates this argument through the language of proponents of same-sex marriage bans, most notably the President of Ohio’s Citizens for Community Values, Phil Buress. It is difficult to see how leaders like Buress were motivated by anything other than animus towards same-sex couples after reading Buress’s justification for denying the rights and benefits of marriage to same-sex couples in the concluding chapter of Pinello’s book.