Vol. 13 No. 10 (October 2003)
MARRIAGE AND SAME-SEX UNIONS: A DEBATE by Lynn D. Wardle,
Mark Strasser, William C. Duncan, and David Orgon Coolidge (Editors). Westport,
Connecticut: Praeger Publishers,
2003. 396 pp. Cloth $45.00. ISBN: 0-275-97653-X.
Reviewed by Rebecca Mae Salokar, Department of Political
Science, Florida International University. Email: salokar@fiu.edu.
The right of gay and lesbian couples to marry or to gain
legal recognition and protection of their relationships has been an evolving
policy project for the gay community for at least the past 15 years. Through "The Marriage Project"
of the Lambda Legal Defense and Education Fund (LLDEF), and the deployment
of strategies developed by the civil rights and the women's movement, LLDEF
has combined litigation with a broad-based social education program in its
effort to place the matter of gay marriage on the national agenda.
Not surprisingly, these efforts have met resistance—from those
morally opposed to same-sex relationships who would keep such matters criminalized,
by those who view marriage as a special recognition reserved to traditional
families (however defined), and even from members of the gay community itself
who see marriage as a heterosexual construct wholly inappropriate to defining
their own intimate relationships.
Gay marriage received further attention in the wake of
the U.S. Supreme Court's decision striking down same-sex criminal sodomy
laws (LAWRENCE v. TEXAS 2003) when the G. W. Bush administration and several
members of Congress endorsed a constitutional amendment to federalize marriage
and limit its availability to heterosexual couples. At about the same time, Canada saw its courts rule unconstitutional
the exclusion of same-sex couples from civil marriage, prompting even more
attention to the issue in this country. Gay marriage is now a matter of national
debate and the prospect of legally recognized same-sex relationships could
easily evolve into an issue that is as divisive as abortion.
MARRIAGE AND SAME-SEX UNIONS: A DEBATE joins a growing
list of works on the legal, social and political implications of gay marriages,
same-sex civil unions and domestic partnerships (Eskridge 1996 and 2002,
Baird and Rosenbaum 1997, Sullivan and Landau 1997, Goldberg-Hiller 2002,
and Merin 2002). What is unique
about this particular text, however, is its intentional immersion into the
debate through the employment of a "dialogue" between scholarly
proponents and opponents of gay marriages and same-sex unions. The editors specifically note that they want to "exemplify
the high quality of thoughtful discussion and debate that is possible"
on the legal issues surrounding same-sex unions (p.xi). Their target audience is broader than the
academic and legal communities; the anthology is designed to reach "educated
readers" and the "thoughtful general public" (p.xiii).
The book is organized into four parts with three or four
"chapters" each. Each
chapter contains an essay supporting same-sex unions with a short reply
in opposition, and an essay critiquing gay marriages followed by a rebuttal. In most chapters, the essay authors are
also the rebuttal authors. The
first section of the anthology focuses on comparative, historical and family
policy issues surrounding marriage and is followed by three chapters on
political philosophy and jurisprudential debates.
The third section is dedicated to constitutional arguments surrounding
civil unions and gay marriages like equal protection claims, First Amendment
matters, the implications of the U.S. Supreme Court's decisions in LOVING
v. VIRGINIA (1967), BOWERS v. HARDWICK (1986) and ROMER v. EVANS (1996). Finally, the last part of the book examines
issues surrounding state sovereignty and state constitutional law, Vermont's
civil union legislation, and a chapter on the comparative, international
and cultural aspects of gay marriage.
While only two of the essays had been published previously,
none of the debates struck me as presenting particularly new or innovative
legal arguments that could not be found in other publications. Rather, the book's value rests with the
fact that as a single resource it contains nearly every imaginable legal
argument for or against gay marriage.
It also includes a fairly comprehensive listing of citations to relevant
research and court decisions. An
even greater contribution of this text is found in the direct replies of
each critique to the other side. While
the tenor remains generally respectful and courteous, the gloves are off
as each rebuttal takes the essayist to task on matters with which there
will likely be no mutual agreement.
The contributors to the collection are among the most prominent
in the legal debate over gay marriage and civil unions. Evan Wolfson, a LLDEF lawyer and past
director of The Marriage Project, Andrew Koppleman of Northwestern University,
Stephen Macedo of Princeton, William Eskridge of Yale, Barbara Cox of California
Western School of Law and Mark Strasser of Capital University Law School
are among the authors advancing the argument in support of gay marriages.
Father Robert Araujo of Gonzaga University, William Duncan of Catholic
University of America, Lynn Wardle and Richard Wilkins of Brigham Young
University, Teresa Stanton Collett at South Texas, and Robert George of
Princeton, among others, write in opposition.
The essays and replies are generally accessible to a non-lawyer audience
and would be appropriate for advanced undergraduates and graduate students
in political science or other social science disciplines.
Themes that course the anthology dominate contemporary
discussion over gay marriages particularly, and touch on the broader debate
involving the social acceptance and recognition of gays, lesbians, bisexuals
and transgendered persons in the United States.
Several of the chapters in opposition to gay marriage rely heavily
on natural law arguments rooted in moral codes to support "traditional"
marriage; while others employ an originalist and historical interpretation
of the role of the state in protecting the family unit and encouraging the
propagation of the species. The
legal argument over the extension of the LOVING decision is debated, and
the question of whether a state or nation's refusal to extend the marriage
contract to same-sex couples violates equal protection is examined from
both perspectives.
Let me caution, however, that this is not an easy book
to read. First, the organization
of the text as a debate with each chapter having two essays and two responses
means that redundancy abounds. The
structure makes for a lack of continuity between the individual essays within
each chapter. A better organization
would have been to allow one author to write an original essay with the
respondent directly addressing the claims of the first and expounding his
or her own views in full essay form followed by a short rebuttal by the
first writer. Second, the editors
might have tightened the themes for each section and done the difficult
editing necessary to eliminate the repetitiveness that is evident particularly
in the first six chapters. For
example, the issue of marriage as a child-centered relationship and the
rebuttals to this proposition recur ad nauseum.
Despite their best efforts to maintain a civil conversation,
some of the replies launch with an almost patronizing tone unnecessary to
the work, and there are occasions where authors put into print words that
might lose their sting in the airy context of verbal transmission but remain
emblazoned and biting in the written text (for example, p.260). The tenor of those remarks adds nothing
to the anthology other than to focus on the debate’s passionate and
emotional aspects while steering the reader away from the scholarly, reasoned
arguments. Again, the difficult
task of editing would have been beneficial.
Finally, I suspect that, for those who have formed an opinion
on gay marriage, reading this book may prompt a level of unease regardless
of which side of the debate one finds herself. But the anthology will also broaden the reader's understanding
of the opposition's arguments and provide an insight to the passion and
commitment with which they hold their views. Ultimately, however, the book will not
likely change anyone's views nor is it designed to undertake such a task. But the editors of MARRIAGE AND SAME-SEX
UNIONS: A DEBATE have laid the groundwork necessary to achieve their purpose
of educating a broader audience on the intricacies of the controversy.
Let me note that MARRIAGE AND SAME-SEX UNIONS: A DEBATE
was written and published before LAWRENCE v. TEXAS (2003), which sparked
the call for a Federal Marriage Amendment that would limit marriage to heterosexual
relationships. Given these
recent developments and the profile that such an issue is likely to receive
in our political science and constitutional law classes, understanding both
sides of the gay marriage argument is ever more important. This book can provide the instructor with an understanding
of the significant legal arguments on both sides of the gay marriage question.
REFERENCES:
Baird, Robert
M. and Stuart E. Rosenbaum (eds.). 1997.
SAME-SEX MARRIAGE: THE MORAL AND LEGAL DEBATE. Amherst, New York: Prometheus Books.
Eskridge, Jr.,
William N. 1996. THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT.
New York: Free Press.
Eskridge, Jr.,
William N . 2002. EQUALITY
PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS. New York: Routledge.
Goldberg-Hiller,
Jonathan. 2002. THE
LIMITS TO UNION: SAME-SEX MARRIAGE AND THE POLITICS OF CIVIL RIGHTS. Ann Arbor: University of Michigan Press.
Merin, Yuval. 2002. EQUALITY FOR SAME-SEX COUPLES: THE LEGAL RECOGNITION OF GAY
PARTNERSHIPS IN EUROPE AND THE UNITED STATES. Chicago: University of Chicago
Press.
Sullivan, Andrew and Joseph Landau (eds.). 1997. SAME-SEX MARRIAGE: PRO AND CON.
New York: Vintage
Books.
CASE REFERENCES:
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
LAWRENCE v. TEXAS, 2003 U.S. LEXIS 5013 (2003).
LOVING v. VIRGINIA, 388 U.S. 1 (1967).
ROMER v. EVANS, 517 U.S. 620 (1996).
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Copyright 2003 by the author, Rebecca Mae Salokar.