Vol. 27 No. 9 (December 2017) pp. 141-143ACCIDENTAL ACTIVISTS: MARK PHARRIS, VIC HOLMES AND THEIR FIGHT FOR MARRIAGE EQUALITY IN TEXAS, by David Collins. Denton, Texas: University of North Texas Press, 2017. 480pp. Hardcover $29.95. ISBN: 9781574416923.
Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (MO). Email: tobias.gibson@westminster-mo.edu.
David Collins offers a spellbinding book on marriage equality. At its root, this is a great American love story. The author chronicles a love story of a former student and longtime friend. This book, not only tells the story of two men who fall in love, in Texas but also who decide to fight a legal battle for their right to wed. It is here that the book shines, and in a way that readers of the LAW AND POLITICS BOOK REVIEW may consider using the book for their classes including Judicial Process.
Layered within the book is an exceptionally well-told account of DELEON V. PERRY (2014) (and DELEON V. ABBOTT when Texas changed governors, the case that altered the history of one of the most conservative states, and impacted the more famous OBERGEFELL V. HODGES (2015) decision. A great portion of this book informs the reader about legal realities that students need to know, including the decision by one of Texas’s largest legal firms to argue the case pro bono; the strategic selection of codefendants; roles of amicus briefs; impact of oral arguments; impact of precedent; and venue selection.
An additional strength of this book is the how the personal impacts the legal, and the legal impacts the personal. Two examples suffice to make this point. First, in a great irony, Mr. Pharris was close friends with Greg Abbott, during their time as law students at Vanderbilt. Abbott went on to serve as Texas Attorney General and Governor, and in both capacities was a legal opponent of Pharris and Holmes. And, a long friendship was ended. Secondly, using posts from Mr. Pharris’s Facebook account and the comments that followed, Collins adds rich description to the personal elation and toil that a long time, contentious lawsuit can play on the parties to the case.
As to be expected when reading a book authored by one of the subject’s friends, the tone of the book is one-sided (more on this below). With that being said, there are two particular strengths of this book. First, there is a very informative discussion about the history of the struggle for legal recognition of gay marriage. Second, the legal discussions of the DELEON case that Pharris and Holmes were codefendants of are clear, informative, and interesting.
I will admit to my ignorance of much of the rich history of the struggle for gay marriage rights in the United States. Collins ably walks the reader through the foundations of the issue (pp. 72-87), discussing BAKER V. NELSON (1972), a case dismissed by the U.S. Supreme Court for lack its perceived non-justiciability, in which Jack Baker and Mike McConnell sued for the right to marry in Minnesota. Though the case failed, they were able to marry in a neighboring county, and inspired a movement. Several gay couples tried to marry in states including Texas, Colorado and Hawai’i. In the Colorado case, Richard Adams and Anthony Sullivan, an Australian native, were denied marriage rights by the Immigration and Naturalization Service. The message from INS is heart wrenching, because the rights of these men were denied. According to the official letter from INS, Adams and Sullivan “failed to establish that a bona fide marital relationship can exist between two faggots” (p. 73).
Another key strength to this book is the attention to detail related to the judicial process, in DELEON, precedential cases, as well as contemporary cases. Though cases such as LAWRENCE V. TEXAS, ROMER V. EVANS (1996), BOWERS V. HARDWICK serve to set the historical context of the book, the real centerpiece of the book is DELEON, in its various iterations. As noted above, the case [*142] unfolds throughout the book, from the decision for Akin Gump to represent the two couples hoping to marry in Texas, to the decision Pharris and Holmes make to apply for a marriage license knowing that state law prevented them from fulfilling their hopes to be legally bound for life. There is much for a judicial scholar to value: accounts of the sparring between Akin Gump and the state about the trial venue, the role that judicial workload can play in the judicial process, the role that public opinion (and changing public opinion) can impact the political environment of judicial decision making, the role of amicus briefs, the appointment process and the importance of judicial panels at the Court of Appeals, the questions fielded by attorneys from the judicial bench during arguments, impact of “repeat players” as attorneys on the court room, and the value of precedent. Yet, the best part of the book is the human element that is intertwined into the impact of judicial decisions. When Judge Orlando Garcia, from the Western Texas Federal District Court, issued his decision in DELEON V. PERRY, the emotional impact on Holmes was telling: "It was a kind of validation of myself as a person, of my love for Mark as a real thing, a sign that we weren’t a sideshow that could be ignored at will. Suddenly, we were real people and our lives and emotions were no less real than those of everyone around us" (p. 127).
Though the trial served as a victory, predictably the case was appealed to the Fifth Circuit Court of Appeals, and the victory was watered down because of a stay pending the Fifth Circuit’s decision. Collins spends two chapters covering the oral argument in this case. Collins, who was in the audience for oral argument, adeptly tells the tale of DELEON, and the sister cases from Mississippi and Louisiana over the course of two chapters. Though OBERGEFELL was decided first, DELEON was decided favorably, and recognized the right for homosexual couples to marry in Texas.
As noted above, I would be remiss if I failed to note that this is not an unbiased academic text. Collins does succumb to the temptation to belittle the thoughts of influential jurists and the opposing attorneys on several occasions. For example, in discussing Justice Antonin Scalia’s dissent in ROMER, Collins describes the Justice as “[u]nable or unwilling” (p. 68) to accept homosexual love as equal to heterosexual love and later, when describing Scalia’s dissent in UNITED STATES V. WINDSOR (2013) as Scalia’s “usual…rhetorical excess” (86). Likewise, in describing the Solicitor General of Texas Jonathan Mitchell’s oral argument of DELEON before the Firth Circuit U.S. Court of Appeals, Collins describes Mitchell as “[s]ounding like a first-year graduate student …enamored with important sounding jargon” (pp. 171-172). Similarly, Collins is wont to praise those opinions of the Court with which he agrees. For example, Justice Anthony Kennedy’s opinion for OBERGEFELL is described as understanding “the world of pain society had inflicted gays and lesbians were compelled to wear masks that concealed their real selves” (262) and “wrote knowingly” about the fear, pain, suffering of homosexuals who has previously been “forced into secret lives on the margins of society” (p. 263).
Despite some misgivings, I end by noting that this is already an award-winning book, and was published on that merit; and it has been on the radar of many leading activists and lawyers. The importance of this book is illustrated in the authors of the foreword, Evan Wolfson and Julian Castro, the founder of Freedom to Marry and the former Secretary of Housing and Urban Development under President Obama. Additional praise for the book comes from Betty DeGeneres (Ellen’s mother) and Roberta Kaplan, who argued the winning side in both OBERGEFELL and WINDSOR (2013) at the United States Supreme Court. The book is a compelling read, one that shows the inner workings of key cases, and tells an exceptional human story while illuminating the legal process to the reader. It was a pleasure to read, and is recommended highly.
[*143] CASES:
DELEON V. ABBOTT, 791 F. 3d 619 (5th Cir. 2015).
DELEON V. PERRY, 975 F. Supp. 2d 632 (W.D. Tex. 2014).
OBERGEFELL V. HODGES, 135 S.Ct. 71 (2015).
ROMER V. EVANS, 116 S.Ct. 1620 (1996).
UNITED STATES V. WINDSOR, 133 S.Ct. 2675 (2013).
© Copyright 2017 by author, Tobias T. Gibson.
