by Jason Pierceson. Lanham, MD: Rowman & Littlefield, 2013. 255pp. Cloth $45.00. ISBN: 978-1-4422-1204-6. Paper $24.95. ISBN: 978-1-4422-1205-3.
Reviewed by Artemus Ward, Department of Political Science, Northern Illinois University. Email: aeward [at] niu.edu
On June 26, 2013 the U.S. Supreme Court handed down two eagerly anticipated decisions on the issue of gay marriage – both favorable to gay rights. In UNITED STATES V. WINDSOR (2013) the Court voted 5-4 to strike down the section of the Defense of Marriage Act (DOMA) that only recognized heterosexual unions. In HOLLINGSWORTH V. PERRY (2013) the Court effectively allowed same-sex marriages in California to continue based on procedural grounds. While neither decision proclaimed a fundamental right to gay marriage they illustrated both the Court’s and the American people’s evolving conception of gay rights as an important civil rights issue akin to race and sex discrimination. Jason Pierceson’s book SAME-SEX MARRIAGE IN THE UNITED STATES (2013) was published three months before the decisions were announced. And although it necessarily does not cover the outcomes of these cases, it predicted them correctly, and is an important addition to the growing literature documenting the gay rights movement in general and specifically the issue of same-sex marriage.
The book continues the Pierceson’s excellent research on the topic (Pierceson 2005; Babst, Gill, and Pierceson 2009; Pierceson, Piatti-Crocker, and Shulenberg 2010, 2012). This new book tells the story of the legal and cultural shift on same-sex marriage, its backlash, and how it has evolved over the past fifteen years. Unlike other books on the topic, Pierceson provides a comprehensive account of both the successes and failures of the movement from a legal, political, and social perspective. There are many strengths to the book including Pierceson’s focus on the historical evolution of the issue and a comparative assessment of same-sex marriage around the world, in the various regions of the U.S., and at the state level. It is also a nice addition to the literature on courts and social change and would be a good candidate for classes on the topic to use in conjunction with Gerald Rosenberg’s HOLLOW HOPE (2008).
In Chapter 2 “Gay Rights and Same-Sex Marriage, 1950-1990,” Pierceson explores the history of the early gay rights movement in the U.S. He shows that there was much more activism and activity than is generally known. He argues that gay marriage was not a new issue to gay rights activists; rather it was central to their conception of citizenship. He recognizes that this is somewhat surprising given that many feminist and queer theorists have steadily argued that a focus on marriage equality reinforces traditional gender roles and inhibits sexual liberation. He details how the New Deal and World War II were catalysts for shaping a national gay and lesbian identity – a crucial precursor to [*589] the movement – which in turn led to a backlash in the form of government policy and society at large. Early activists focused on reducing social stigma and it was not until the mid-1960s that a movement akin to African-American civil rights began to take shape. Despite early litigation failures, activists in the 1970s and 1980s pushed for legal recognition of same-sex relationships. Legal changes in sex-discrimination and divorce helped link gender and sexuality but also temporarily derailed the move toward same-sex marriage as activists turned toward domestic partnerships and other strategies.
Chapter 3 examines the issue of same-sex marriage in comparative context. Pierceson explains that laws protecting same-sex couples are not a worldwide phenomenon. Positive changes have occurred in Europe (Denmark was the first country to officially recognize same-sex relationships in 1989), Australia and New Zealand, South America, and North America while, on the opposite end of the spectrum, Asia and Africa have seen little positive activity (South Africa’s legalization of same-sex marriage in 2006 excepted).
Chapters 4-7 analyze the American context. Chapter 4 provides an in-depth discussion of the first modern phase of U.S. litigation and its backlash with a focus on Hawaii, the District of Columbia, Alaska, Vermont, and Massachusetts. Elected officials and courts began to take the issue seriously. In Chapter 5, Pierceson discusses same-sex marriage in the Midwestern U.S. which was spurred by unexpected decisions by the Iowa Supreme Court to legalize same-sex marriage in 2009. Civil unions were enacted in Illinois in 2011 and a domestic partnership law in Wisconsin in 2009. The chapter also details developments in Minnesota, Indiana, Ohio, and Michigan. Chapter 6 covers the Eastern and Southern states from 2004-2012 with particular attention to New Jersey, Connecticut, New York, Maine, New Hampshire, Rhode Island, Maryland, Delaware, and North Carolina. Of particular interest are the tables Pierceson provides in this chapter. The first details the type of same-sex marriage policies enacted in the states, the year of enactment, whether litigation was the catalyst, and whether there was a court mandate. The second examines votes on state constitutional amendments banning same-sex marriage and includes the year of the vote, the percentage of support, and whether the vote was on marriage only or a “Super-DOMA.” Chapter 7 looks at the Western U.S. including Oregon, Washington, California, Arizona, Colorado, Nevada, New Mexico, and Wyoming. In sum, Pierceson notes that all regions of the U.S., except the South, have recognized same-sex marriage, civil unions, or domestic partnerships.
Chapter 8 focuses on same-sex marriage and the U.S. Supreme Court. This is a nice chapter on the background leading up to this past term’s same-sex marriage decisions. And while it covers the genesis of the two cases specifically, it also provides a broader analysis of marriage, privacy, and gay rights Supreme Court decisions and how those relate to the issue of same-sex marriage. Interestingly, Pierceson makes a prediction at the end of the chapter for the PERRY and WINDSOR cases. He correctly suggested that the Court would eschew expansive same-sex marriage [*590] rights and would not elevate sexual orientation discrimination to heightened scrutiny. Instead, Pierceson argued, that the Court would invalidate DOMA and hand down a limited ruling in PERRY. He was, of course, right.
In the Conclusion Pierceson ties his findings to the work on courts and social change. He argues that there is an important connection between litigation and policy change in the direction of marriage equality: while litigation alone did not achieve these results, it was a decisive factor. Like other scholars, he recognizes that early litigation success can create a backlash against the movement for change resulting in greater losses (e.g. Rosenberg 2008). But those losses help to legitimize the issue and only lead to increased political and legal mobilization that ultimately, if not inevitably, produces victories (e.g. Keck 2009, Klarman 2012). Like these latter works, Pierceson’s careful analysis of same-sex marriage in the U.S. persuasively demonstrates the crucial role of courts in achieving social change.
Babst, Gordon A., Emily R. Gill, and Jason Pierceson, eds. 2009. MORAL ARGUMENT, RELIGION, AND SAME-SEX MARRIAGE: ADVANCING THE PUBLIC GOOD. Lanham, MD: Lexington Books.
Keck, Thomas M. 2009. “Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights.” LAW AND SOCIETY REVIEW 43: 151-185.
Klarman, Michael J. 2012. FROM THE CLOSET TO THE ALTAR: COURTS, BACKLASH, AND THE STRUGGLE FOR SAME-SEX MARRIAGE. New York: Oxford University Press.
Pierceson, Jason. 2005. COURTS, LIBERALISM, AND RIGHTS: GAY LAW AND POLITICS IN THE UNITED STATES AND CANADA. Philadelphia, PA: Temple University Press.
Pierceson, Jason, Adriana Piatti-Crocker, and Shawn Schulenberg, eds. 2010. SAME-SEX MARRIAGE IN THE AMERICAS: POLICY INNOVATION FOR SAME-SEX RELATIONSHIPS. Lanham, MD: Lexington Books.
Pierceson, Jason, Adriana Piatti-Crocker, and Shawn Schulenberg, eds. 2012. SAME-SEX MARRIAGE IN LATIN AMERICA: PROMISE AND RESISTANCE. Lanham, MD: Lexington Books.
Rosenberg, Gerald N. 2008. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Second Edition. Chicago: The University of Chicago Press.
HOLLINGSWORTH V. PERRY, 570 U.S. ___ (2013).
UNITED STATES V. WINDSOR, 570 U.S. ___ (2013).
Copyright 2013 by the Author, Artemus Ward