by Susan Gluck Mezey. Lanham, MD: Rowman & Littlefield, 2009. 290pp. Cloth. $70.00. ISBN: 9780742562189. Paper. $27.95. ISBN: 9780742562196.
Reviewed by Jason Pierceson, Departments of Political Science and Legal Studies, University of Illinois Springfield. Email: jpier2[at] uis.edu.
With GAY FAMILIES AND THE COURTS: THE QUEST FOR EQUAL RIGHTS, Susan Gluck Mezey has created an impressively researched and thorough account of recent litigation concerning the rights of sexual minorities in the United States, especially when combined with her previous book, QUEERS IN COURT: GAY RIGHTS LAW AND PUBLIC POLICY (2007). Central to both books is the theme of courts as agents of social change, the question given vitality by the work of Gerald Rosenberg (2008). The book covers four areas of litigation and policy: lesbian and gay parenting, same-sex marriage, sexuality in education, and the anti-gay position of the Boy Scouts. After examining these areas, Mezey reaches the conclusion that litigation for the rights and equality of sexual minorities has been, on the whole, successful. However, great variation exists within and among the policy areas. According to Mezey, “the outcomes of the cases were dependent largely on the degree to which judges acted as subordinate or coordinate policymakers” (p.239). In other words, some judges changed policy by viewing their role as policymakers. This is an important point, as much of the debate over judicial policymaking expressed normative displeasure with active courts. But Mezey’s book is in a line of recent scholarship that is more interested with what courts are doing than with what courts should (or should not) be doing. Overall, the book makes a tremendous contribution to the study of judicial policymaking and to the study of sexuality and politics by chronicling, in great detail, the litigation surrounding important elements of LGBT family life.
The chapter on lesbian and gay parenting is perhaps the strongest of the book. Mezey chronicles the extensive litigation at the state level that has resulted in a significant expansion in parenting rights of sexual minorities. In many, but not all, states, judges challenged the statutory status quo that often reflected homophobic views. Often relying on the “best interest of the child” standard, judges expanded the definition of parents in ways that favored lesbian and gay individuals and couples. In particular, Mezey compares the situation in Florida, which reflects federal court reluctance to challenge anti-gay state policy, with California where courts in the state have been much more willingly activist, to the benefit of lesbian and gay parents. The chapter also includes a nice summary of the social science literature on lesbian and gay parenting. The chapter effectively illustrates both the promise and peril of progressives’ use of state courts for policy change, a situation that is unavoidable in the United States where family law is mostly the jurisdiction of the states. In trying to be careful to explore both successes and [*218] failures, however, Mezey may understate the truly remarkable and court-driven policy change that has taken place and that has been eclipsed by the litigation over same-sex marriage. In April 2010, a trial court judge in Arkansas invalidated the popularly enacted ban on lesbian and gay foster parenting and adoption, taking a fairly aggressive stance against the sentiment of the majority in that state. It would be difficult to imagine a similar ruling on an amendment banning same-sex marriage.
In the two rich chapters on same-sex marriage litigation, Mezey makes the claim that the year 2005 was a turning point, with litigation after that year reflecting a more aggressive stance from state courts in support of same-sex marriage claims. Mezey notes that before 2005, the issue was largely dominated by the enactment of state and federal anti-same-sex marriage policies, despite some early victories for progressive advocates. I would argue that this analysis is a bit oversimplified and discounts the extent to which early litigation set the stage for future success, not to mention how it resulted in tangible policy change in some jurisdictions. Overall, the discussion of same-sex marriage litigation, while impressively thorough, might have more directly engaged the emerging and increasingly voluminous literature on the subject. This could have allowed Mezey’s discussion to have been enhanced by an increased theoretical richness. That said, these chapters offer an impressive overview of the litigation and the political reactions to it. Particularly useful is the discussion of the complex legal and political dynamics surrounding the brief court-mandated legalization in California and the quick enactment by votes of Proposition 8.
The remaining chapters explore school policy litigation and litigation relating to the exclusionary policy of the Boy Scouts. Mezey chronicles how the issue of harassment was given further policy definition from court decisions, no longer giving school administrators the option to “look the other way.” Mezey also documents the importance of freedom of expression and association for sexual minorities in schools which has allowed more visibility of lesbian and gay students and organizations like gay-straight alliances. Ironically, this increased visibility and protection stems, in large part, from a federal statute aimed at protecting the rights of religious students and organizations in schools. Thus, in schools, sexual minorities have benefitted from the same legal framework as religious students and groups. The same claim cannot be made for gays in the Boy Scouts. In this area of litigation, those challenging the exclusionary policy of the Boy Scouts have been stymied by freedom of association concerns trumping equal protection requirements. In another ironic twist documented by Mezey, the Scouts have turned to litigation to protect them from decisions by public agencies denying access to public facilities by the Scouts.
Mezey has created a tremendous resource of students and scholars of the courts and the study of sexuality. The author has taken great care in analyzing the reasoning of important cases. Indeed, the analysis of judicial reasoning across a wide range of cases is the greatest strength of the book. However, Mezey devotes much less of the book to [*219] a discussion of why judges rule the way that they do. Her approach is mostly to narrate and at the end of chapters and in the conclusion briefly discuss the implications of the information presented. As I noted with the chapters on same-sex marriage, it might have been useful for Mezey to have included more contextual information and engage more with the literature about these policy areas and their connection to litigation. In particular, a similar volume, David Rayside’s QUEER INCLUSIONS, CONTINENTIAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANDA AND THE UNITED STATES (2008), examines similar policy areas (parenting, marriage, schools) with more of this context. Rayside’s volume, of course, lacks the legal analysis of Mezey’s book. There is obviously a trade-off between emphasizing these approaches. Ideally, I would have liked a bit more analysis than Mezey offers, but this volume makes a vital contribution to our understanding of the role of litigation in progressive causes and shaping policy more generally.
Overall, this book, particularly combined with Mezey’s QUEERS IN COURT, is an excellent addition to the growing scholarship on law, politics, and policies relating to sexual minorities and presents more evidence why this topic is particularly important for scholars of the judiciary. It is part of a growing body of scholarship challenging the seemingly entrenched perspective that courts only respond to change, not create it. It is my hope that through work such as this, public law scholars will view the case of sexuality appropriately as one of the most promising for furthering our understanding of the role of the courts in the U. S. political system, in addition to understanding the legal status of sexual minorities in the polity.
Suzan Gluck Mezey. 2007. QUEERS IN COURT: GAY RIGHTS LAW AND PUBLIC POLICY. Lanham, MD: Rowman & Littlefield.
David Rayside. 2008. QUEER INCLUSIONS, CONTINENTIAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES. Toronto: University of Toronto Press.
Gerald Rosenberg. 2008. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 2nd ed. Chicago: University of Chicago Press.
© Copyright 2010 by the author, Jason Pierceson.