by Mark Strasser. Durham, NC: Carolina Academic Press, 2011. 252pp. Paper $32.00. ISBN 9781594609374.
Reviewed by Susan Gluck Mezey, Loyola University Chicago. Email: smezey[at] luc.edu
This book discusses many of the thorny legal issues embedded in state and federal marriage policy in the United States, focusing on the right of same-sex couples to marry and divorce as well as adopt and raise children. It transcends mere assessment by including a welcome normative component, with the author offering his views on policies or interpretations of law that are most apt to advance the LGBT community's goal of securing equal rights. Given the fast-moving nature of the topic, Strasser often asks more questions than he is able to answer, but he believes that the struggle for equality will lead to ultimate acceptance of same-sex marriage if, for no other reason, that time is on the side of same-sex marriage advocates. In his view, acceptance will be accompanied by society's recognition that rights should not be allocated on the basis of sexual orientation.
The book has two main foci: at the state level, it devotes chapters to the right to marry and the state's obligation to recognize legal relationships entered into in other jurisdictions. It shows how these rights and responsibilities are governed by state constitutional and statutory prohibitions on same-sex marriage (and other same-sex relationships), subject to judicial interpretation. At the federal level, it assesses the role of the Fourteenth Amendment's due process and equal protection clauses in guaranteeing the right to same-sex marriage. It also discusses the reach of the 1996 Defense of Marriage Act (DOMA) in preventing same-sex couples from enjoying the same marriage rights as other couples. Finally, not fitting neatly into either of the two main themes, there is a chapter on the legitimacy of so-called conscience clauses which allow individuals to opt out of providing marriage-related services for same-sex couples, presumably because of religious objections.
Strasser ably demonstrates the complexity and volatility of same-sex marriage policymaking, showing the almost infinite range of policies available to the states and the federal government with respect to establishing and recognizing relationships between same-sex partners. The complexity is heightened by the mobility of the citizenry and the multiple levels of government affecting the legality of familial relationships in the U.S. federal system. He details the labyrinth of legal provisions which courts are asked to interpret including the Full Faith and Credit (FF&C) clause, the choice of law doctrine, the federal DOMA, and state DOMAs, to name a few.
Chapter 1 looks at the range of state constitutional amendments restricting same-sex marriage and points to numerous examples of the uncertainties of their interpretation. Strasser speculates on how these amendments might be construed in different scenarios and convincingly demonstrates that they are poorly written, with both drafters and voters giving little thought to the implications of the language and the extent to which they might be interpreted to impose restrictions on all unmarried couples, both same-sex and different-sex. Moreover, he adds, many of the restrictions arising out of judicial interpretation of these amendments could continue even if the U.S. Supreme Court declared a right to same-sex marriage.
Chapter 2 explores variations in the recognition states accord to same-sex marriages legally performed outside their jurisdiction. The chapter deals with the legal doctrines arising from conflicting state laws and policies. Citing doctrines such as comity, choice of law, interstate conflict, and full faith and credit, he highlights the problems same-sex couples could face when returning to their home state following their marriage in another. In large part, because the case law is so variable and idiosyncratic, Strasser shows that same-sex couples enter into virtually unchartered legal territory when they cross jurisdictional boundaries.
Chapter 3 addresses the effects of DOMA, showing that, as with state non-recognition policies, much of the statute remains open to interpretation by the courts and reflects poor drafting and scant consideration of its implications. Among other uncertainties, little appears to be known about the relationship between DOMA and the FF&C clause. The chapter ends by speculating about the likelihood of DOMA's repeal; however, Strasser cautions that even if this should occur, state non-recognition policies will likely continue to restrict marriage opportunities for same-sex couples.
Chapter 4 continues the discussion of the FF&C clause, this time in connection with the state's obligation to enforce judgments validly entered into by other state courts. It explains that although there may be uncertainty and confusion about a state's obligation to enforce the laws of other states, there is no uncertainty that the clause requires states to enforce the final judgments of their sister states. The chapter focuses on two celebrated cases that highlight the hurdles same-sex parents must overcome when asking a state to accord full faith and credit to the determination of their parental rights made by another state.
Chapters 5 and 6, the two chapters that will be most familiar to readers, review state and federal cases adjudicating the right to marry. Strasser presents the arguments by proponents and opponents of same-sex marriage as presented in the U.S. Supreme Court and selected state courts. At the federal level, and to some extent, the state level, the constitutional guarantees revolve around the rights to privacy and equal protection. In general, these chapters show that state courts siding with plaintiffs by upholding their right to marry subjected the laws restricting same-sex marriage to a higher level of scrutiny, recognized that Loving v. Virginia (1967) applies to same-sex marriage as well as interracial marriage, and rejected the state's claim that its interest in fostering procreation and the well-being of the child justifies the ban on same-sex marriage. Strasser nicely points out the irrationality of some of the arguments offered by the opponents, especially the latter one.
Chapter 7 reprises some of the debates over state recognition of marriages performed in other jurisdictions, this time within the context of the constitutional right to travel.
Chapter 8 discusses the so-called conscience clauses that often accompany legislation granting the right to marry. Such clauses permit individuals to refrain from participating in the marriage activities of same-sex partners. Noting that no clergy would be forced to perform a same-sex marriage if they wished to abstain even without a specified exemption in the law, Strasser objects to granting such exemptions to government officials such as court clerks or justices of the peace and argues against extending the exemptions to non-public officials such as business owners. Aside from the practical concerns about how to limit the types of businesses or organizations entitled to the exemption, he stresses that their very nature stigmatizes gay and lesbian couples and their marriages.
This book offers valuable insights into the complexity of state and federal recognition policies and their interactions with each other. With the exception of chapters 5 and 6, which cover fairly well-known territory, Strasser sheds new light on a number of issues important to the debate over same-sex marriage. However, although it has much to commend it, the book has some flaws as well. First, because it is based on law review articles previously published by the author, the chapters appear disjointed, cobbled together from the various articles to fit into a book format. Second, the book cites no books or articles -- only cases and statutes -- and has no bibliography, thus diminishing some of its usefulness for scholars. Still, despite these deficiencies, this book offers much information about the legalities of the same-sex marriage debate and is worthwhile reading for lawyers and non-lawyers alike.
Loving v. Virginia, 388 U.S. 1 (1967).
© Copyright 2011 by the author, Susan Gluck Mezey.