AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS

Vol. 26 No. 6 (October 2016) pp. 114-116

AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS, by Carlos A. Ball (ed). New York: New York University Press, 2016. 357 pp. Cloth $45.00. ISBN: 1-4798-8308-5.

Reviewed by Daniel R. Pinello, Department of Political Science, John Jay College of Criminal Justice of the City University of New York.

To those Americans who thought OBERGEFELL V. HODGES marked the pinnacle of success for the LGBT-rights movement, as well as to those marriage equality activists and supporters who looked forward to resting on their laurels: Guess again. Carlos A. Ball and the dozen other distinguished contributors to AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS are here to convince you that the fight for full queer rights and recognition has just begun. Batten down the hatches.

According to these authors, a comprehensive agenda for achieving thorough LGBT rights in the United States and elsewhere includes these Top Ten outstanding goals:

1. Securing statewide legal protections against sexual-orientation discrimination in employment, housing, and public accommodations in 28 jurisdictions: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming.

2. As an alternative to #1, persuading Congress and the President to amend the Civil Rights Act of 1964 to include sexual orientation among the landmark legislation’s covered categories. Without federal or state antidiscrimination security, same-sex couples could legally marry and subsequently be fired from their jobs once word spread about their wedding and “outed” them at work.

3. As a complement to the above, curing the dearth of legal safeguards surrounding gender identity and expression and other sexual multiplicities. Just nineteen states today prohibit discrimination against trans people in the workplace, while only half allow individuals who have undergone medical treatment for transitioning to amend their birth certificates in order to reflect gender modification.

4. Guarding against backlash to nationwide marriage equality by warding off state and local actions facilitating denials of service to LGBT people on the ground of religious liberty, as most conspicuously occurred post-OBERGEFELL in places like North Carolina and Indiana. Remarkably, however, no organized effort emerged in the Republican-dominated 114th Congress to amend the Constitution for the purpose of upending the Supreme Court’s ruling.

5. Shifting the focus away from civil marriage as the gateway for recognizing the parentage of children being raised in queer families. In this vein, adoption and assisted reproduction should not be limited to married couples. Rather, legal parentage by lesbian and gay individuals should be available in a variety of family arrangements that are independent of marriage.

6. Increasing descriptive representation of the queer community through the election and appointment of more LGBT people to government office. Openly queer individuals now occupy far less than one percent of all elected positions in the nation, which, as a proportion of their estimated population in the United States, makes LGBT folk substantially more underrepresented than either women or racial and ethnic minorities.

7. Helping significantly growing numbers of queer people to address elder care and end-of-life issues as they move into their twilight years. Since LGBT seniors encompass both pre- [*115] and post-Stonewall generations, the degree of openness about their sexuality varies greatly across the queer elder population, complicating how senior services can be deployed and managed.

8. Abandoning the civil rights, litigation-based model of legal reform and adopting campaigns of education, training, and changing organizational cultures and power relationships in order to eliminate institutionalized homophobia and heterosexism in American life by means of direct engagement of civil society. The Boys Scouts’ ultimate rejection of its own ban against gay scouts and scoutmasters after the LGBT community’s Supreme Court loss in BOY SCOUTS OF AMERICA V. DALE is the quintessential example of this strategic conversion.

9. Recognizing that racism and economic inequality in the United States disproportionately affect queer individuals and the children they are raising, and working to alleviate such barriers, even though these impediments may seem ostensibly extraneous to sexual orientation or gender identity and expression. Social scientists have spoken to the challenges faced here under the rubric of intersectionality.

10. Diffusing LGBT rights abroad, where the hurdles to equality are staggering. In 2015, for example, the International Lesbian, Gay, Bisexual, Trans and Intersex Association listed more than seventy-five countries with criminal laws against sexual activity by queer people, including eight nations with the death penalty for same-sex intimacy.

In short, America’s struggle for nationwide same-sex marriage was a cakewalk compared to the obstacles confronted in attaining the unabridged Top Ten list of ambitious objectives itemized in AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS. Yet, as the book’s case histories of post-marriage-equality Massachusetts and Canada attest, both the financial and volunteer resources for mounting further campaigns of legal and social change favoring the queer community domestically and abroad are likely to diminish significantly in the United States after OBERGEFELL. Indeed, the quantity and urgency of fundraising appeals from LGBT interest groups I’ve received in the last year signal their apparently dire fiscal plight.

Moreover, as the heterogeneity of the Top Ten reform goals suggests, national groups (such as the Human Rights Campaign, Lambda Legal, and the National Gay and Lesbian Task Force) that were buoyed by the singularity of the marriage-equality quest will inevitably face centrifugal forces tending to shatter such large organizations into smaller local and regional groups with more narrowly focused subject-matter mandates. In point of fact, formerly vital national and state enterprises such as Freedom to Marry and the Empire State Pride Agenda closed shop after June 2015.

The dispersion of focus away from marriage to a hodgepodge of competing -- and potentially less emotionally compelling -- policy objectives within the LGBT community also complicates the pedagogy of queer studies. Scholars who teach classes on the law and politics of sexual orientation in the United States will find some, but not all, of the book’s chapters a welcome addition to course syllabi. While the volume includes a roster of talented contributors -- including Carlos A. Ball, Katherine Franke, Donald P. Haider-Markel, Nancy J. Knauer, Gary Mucciaroni, Nancy D. Polikoff, David Rayside, Russell K. Robinson, and Clifford Rosky -- I was left disappointed with aspects of the project.

Part of the problem arises from the nature of edited volumes, which often lack coherence and appropriate balance. The first three (of twelve) chapters of AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS, for example, are denominated Part I (“The American LGBT Movement After Marriage Equality”) and constitute 30 percent of the text. Each chapter does a good job addressing the section’s theme, with the authors providing a variety of theoretical perspectives and empirical emphases. But there are few ways the topics summed up at the beginning of this review can be presented afresh. Accordingly, Part I has [*116] significant redundancy, which repetition would likely not have occurred to the same degree in a single-authored work.

Two of the three chapters in the book’s concluding Part III (“Post-Marriage Equality in Other Nations”), reporting on the LGBT movements in Canada, France, and The Netherlands, are unsatisfying in a different way. Only Rayside’s Canadian history offers potentially revealing insights into what might happen in the United States after OBERGEFELL. In contrast, both the Dutch and French accounts are rooted in political circumstances that are too specific to Europe to transfer across the Atlantic regarding what might occur here. What is more, such parochial experiences might also be the case for the other nations -- Argentina, Belgium, Iceland, Norway, Portugal, South Africa, Spain, and Sweden -- that legalized same-sex marriage prior to 2013, when France joined their company. In other words, Canada’s story may well be the only one close enough to the American context to offer a meaningful comparison for the purpose of predicting post-marriage outcomes in the United States, which is the primary goal of Parts I and II of the book. Thus, devoting a separate third part to international commentary was an empirical overreach.

The volume’s most cogent portion is Part II (“LGBT Issues After Marriage Equality”), where the middle six chapters focus in depth on particular items among the Top Ten, resulting in some of the work’s most fulfilling explorations. There is much to recommend each of these half-dozen topical investigations. I especially like Knauer’s “LGBT Elders: Making the Case for Equity in Aging” and Polikoff’s “Marriage as Blindspot: What Children with LGBT Parents Need Now.” The former is a nuanced and in-depth exploration of a topic that has too often been ignored in LGBT advocacy and scholarship. The latter chapter elucidates how the marriage movement conflated its policy objectives with the needs of queer parents, thereby sidetracking what had been a fairly successful prior legal and political effort to secure the benefits of parentage for children independent of their parents’ marital status.

Fundamentally, however, AFTER MARRIAGE EQUALITY: THE FUTURE OF LGBT RIGHTS is no pedagogical panacea for the absence of the kind of organizing principle for queer studies that the struggle for same-sex marriage once supplied, precisely because of the highly splintered nature of the post-OBERGEFELL agenda that this text so comprehensively documents. In a nutshell, no singularly attention-grabbing pursuit is out there to take the place of marriage.

CASE REFERENCES:

BOY SCOUTS OF AMERICA V. DALE, 530 U.S. 640 (2000).

OBERGEFELL V. HODGES, 135 S. Ct. 2584 (2015).

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© Copyright 2016 by author, Daniel R. Pinello