QUEERS IN COURT

Vol. 17 No.6 (June, 2007) pp.462-467

QUEERS IN COURT: GAY RIGHTS LAW AND PUBLIC POLICY, by Susan Gluck Mezey. Lanham, MD: Rowman and Littlefield Publishers, Inc., 2007. 290pp. Cloth $70.00. ISBN: 0742549313. Paper $24.95. ISBN: 0742549321.

Reviewed by Sharon Whitney, Department of Sociology and Political Science, Tennessee Technological University. Email: swhitney [at] tntech.edu.

There have been fifty years of identity politics and gay rights issues pursued in American law and public policy, much of it in federal and state courts, but also in legislation, and in the court of public opinion. Susan Gluck Mezey’ QUEERS IN COURT offers a prism for understanding the litigation strategy in the context of a democratic political culture. Mezey’s method of analysis is a comparative historical-institutional narrative, buttressed by public opinion polls on gay rights issues. Her work is comprehensive, covering nearly 300 cases, scholarly, and written in a way that makes it accessible to the general reader.

The book’s narrative methodology is appropriate for the two empirical questions Mezey addresses, which are theoretically significant for democratic politics and political science. First, is litigation a more successful minority rights strategy than ordinary politics? Second, in granting gay rights wins, have the courts acted counter to a popular majority sentiment (p.8)? With that said, Mezey does not shy away from revealing how she thinks the judiciary should respond to the gay rights claims her analysis covers, and this is something to be appreciated by activists and advocates on either side of the issue. She is empathetic on the side of gays claiming rights, and critiques excessive judicial self- restraint. One quotation, with specific reference to same-sex marriage rights claims in state courts, which go back about thirty years and have mostly lost, illustrates this point:

“The cost of their restraint was abnegation of their duty to adjudicate properly presented constitutional claims” (p.235).

The book is structured well. Its “Introduction” sets the stage in terms of empirical political theory. Modern scholars have puzzled over whether the U.S. Supreme Court generally legitimates a majority view, or is severely lagging or way ahead of a national majority sentiment, i.e., counter-majoritarian. Mezey’s questions really boil down to asking which model – legitimating or counter-majoritarian – best fits the gay rights struggle.

Mezey points out that in political science the legitimating model was identified empirically by “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” (Dahl 1957). However, Dahl focused narrowly on the judicial review of Congressional acts, and ignored state action. Consequently, it did not reveal anything about the post-New Deal era of civil liberties and civil rights issues emanating from state action. A more relevant and up-to-date review of the legitimating model is found in “Rethinking the Civil Liberties and Civil Rights Revolutions” (Klarman 1996), [*463] which concedes that, while the Court is often in front of majority views expressed at a local or regional level, it generally reflects a broader and ascendant trend in national majority opinion. Does this revised legitimating model best fit the gay rights struggle?

Chapter One, “Forging Gay Rights Activism” chronicles events and the major periods through which gay identity and gay rights activism transverses. It may surprise some that it all started in Germany in the 19th century – i.e., decades before the rise of Hitler. In the United States it began as a response to McCarthyism repressions during the Cold War era of national security, at least a decade before the 1960s so-called sexual revolution. Then, of course, there were the riots of June 1969 at Stonewall Inn in Greenwich Village, New York, resisting police raids of gay bars. This launched the era of organizing and litigating using First Amendment doctrines. The organized Christian fundamentalist opposition movement had its first wave in the 1970s, in an effort to reverse local gay rights ordinances. Then, of course, there was the discovery of AIDS in the mid-1980s, which awakened the general public to the effects of rampant closeted sexual conduct. Moreover, the public health threat united libertarians of all stripes, feminists, and gay rights activists behind the cause of a new rationale for bringing a gay, lesbian, or bisexual orientation out of the closet and decriminalizing homosexual conduct. Unfortunately, the Supreme Court was not persuaded it should extend the right of privacy for adult non-commercial consensual sexual conduct to decriminalize homosexual sodomy, which led to the ill-fated 5-4 holding of BOWERS v. HARDWICK (1986). BOWERS prompted gay rights strategists to switch to to equal protection of the laws for sexual orientation, which led to a litigation win in ROMER v. EVANS (1996). If BOWERS was the equivalent of DRED SCOTT (1856), as some gay rights activists saw it, then LAWRENCE v. TEXAS (2003), which reversed BOWERS, was the equivalent to BROWN (1954). Of course, it is too soon to see what the long-range effect of LAWRENCE will be. LAWRENCE probably emboldened the Massachusetts Supreme Judicial Court to rule on the grounds of state law for the same-sex marriage equality in GOODRIDGE (2003); and GOODRIDGE provided more fodder for a new round of popular opposition, organized by a conservative Christian fundamentalist movement, to challenge such attitudinally liberal judicial activism.

Chapter Two, “Litigating Equality and Privacy Rights,” goes into detail on the history of sodomy statutes, and the steps leading to BOWERS, ROMER, and LAWRENCE. In the process, it explains the mystique of different levels of scrutiny for equality claims, as applied to gay rights. One apt point that Mezey (p.56) draws from Gerstmann (2003, at 9) which I think bears repeating is this: on the one hand, the [*464] Court refuses to accord gays the status of a suspect class and apply strict scrutiny on the grounds they are not politically powerless; but when whites complain that they have been subjected to discrimination as a result of affirmative action programs, the Court applies strict scrutiny because race is a suspect classification. In other words, in effect, the underlying issue remains to be this: is sexual orientation, like sex and race, a status-based classification, or a conduct-based one?

Chapter Two also discusses in an enlightening way the unanimous vote in HURLEY v. IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON [GLIB] (1995) (pp.56-59) versus the split vote in BOY SCOUTS OF AMERICA [BSA] v. DALE (2000) (pp.67-72), given the precedent set in UNITED STATES JAYCEES v. ROBERTS (1984). At issue in all three cases is a state’s anti-discrimination public accommodations law and a private organization’s First Amendment claim as a grounds for excluding a given person or group. In UNITED STATES JAYCEES, the Court upheld the state interest public accommodations law prohibiting unreasonable sex discrimination against a defense for excluding women by a private men’s club on the grounds of expressive association. The Court said it was women per se who were excluded, not women who disagreed with the United States Jaycees’ message. Thus, in this case, a woman’s anti-discrimination claim trumped the Jaycees’ First Amendment claim. But, according to a unanimous Court, GLIB is on a different footing. While the state does prohibit discrimination on the basis of sexual orientation, GLIB wanted to carry a self-identifying parade banner, which was inconsistent with the message the Veterans Council wanted to project. Thus, in this case, the Veterans Council’s First Amendment expressive association claim trumped gays’ state-guaranteed anti-discrimination right. Coming now to BSA, Dale, an Eagle Scout, came out as gay while in college, and his membership in a college gay rights club was revealed by a local newspaper, which prompted BSA to exclude him as an Eagle Scout. Dale challenged the exclusion based on his state-guaranteed right of non-discrimination, UNITED STATES JAYCEES, and the Fourteenth Amendment’s guarantee of equal protection of the laws. But, is Dale’s case closer to UNITED STATES JAYCEES or to GLIB? According to Chief Justice Rehnquist, writing for the majority, BSA is closer to GLIB. According to Justice Souter, writing in dissent, Dale’s case is closer to UNITED STATES JAYCEES. At issue, of course, is the distinction between a right of expressive association and a right of free speech, and the scope of expressive association. The weight of scholarly opinion is critical of the majority opinion in BSA.

Chapter Three is “Struggling over Same-Sex Marriage.” Same-sex marriage cases go back 30 years. Mezey covers the mostly lost cases, and every significant success up to GOODRIDGE and beyond. She also details the 2004 wave of state constitutional amendments that banned the performance of same-sex marriage within a state and its recognition when performed in a different state, and she looks at the political science literature interested in whether or not the 2004 re-election of President Bush pivoted on conservative mobilization for these bans. She mentions the episodic events of local [465] officials authorizing same-sex marriages, which came to nothing legal in the long run, and the efforts of Republicans to forward a federal Marriage Protection Amendment, again to no avail. The post-GOODRIDGE upshot, for now, is an uneasy stalemate over whether and how to legitimate same-sex long-term commitments. The public appears not to have a majority sentiment for legitimating same-sex marriage. At the same time, public opinion is moving in the direction of accepting more legitimacy for long-term same-sex commitments. On the litigation front, issues of comity between the states and judicial federalism will at some point undoubtedly re-ignite the same-sex marriage debate. In the meantime, I recommend Koppelman’s SAME SEX, DIFFERENT STATES (2006) for a pragmatic approach to understanding how the comity issues at stake may be resolved.

Chapter Four is titled, “Contesting Inequality in the Military,” and Chapter Five is “Challenging Employment Discrimination.” While the number of cases in these areas has grown, the dial on outcomes has not turned that much. The military gets its way in excluding gays. National security agencies also get their way in these kinds of cases. Otherwise employment discrimination is being abolished.

Chapter Six is the “Conclusion.” For the different periods of gay rights litigation there were unique doctrinal strategies and outcomes, which adds up to a mixed view on which model of judicial review best fits the gay rights struggle. The earliest doctrinal successes came in the 1950s, with the Court limiting governmental censorship of First Amendment rights and with which there is a consistent public view of gay rights. BOWERS proved that next relying on a right of privacy to decriminalize homosexual sodomy was ineffective, and this was consistent with at least some states’ public view. More successful for the gay rights claim was the equal protection strategy for sexual orientation, which won in ROMER. Whereas the counter-majoritarian model fits this case in relation to Colorado’s voting population, as compared with a broader and ascendant national public opinion, the legitimating model best fits ROMER. In federal court litigation regarding gays in the military, the Court is lagging behind public opinion, which is strongly in favor of allowing gays to serve (p.179). Thus, Mezey concludes that litigation in this area is “futile” (p.235). In other areas of employment discrimination, with the exception of national security concerns, the record is much better for gays in both federal and state courts, but so is a strategy of legislation effective, at least in the states. With respect to legitimating gay marriage, or civil unions, litigation so far has proved mostly unsuccessful, but legislative action in this area is not much better. Thus, for those who believe in the ethical position of same-sex marriage, finding the right forum to press their argument is crucial. Overall, though courts can help gays, it is not a panacea for change, and much depends on individual judges and their attitudes—do they see discrimination as a function of unjustified stereotypes or as a reasonable democratic sentiment? Gay rights activists and advocates need [*466] not abandon the litigation strategy, but they must also recognize that courts face constraints that often make judges unable or unwilling to advance the gay rights cause.

In general, to return to her first question, Mezey concludes that “yes” the courts are in a better position to satisfy minority demands when other branches are not. This is qualified by a recognition that judges also may face internal and external constraints, which makes them unable or unwilling to do so. To the second question, the evidence leads her to the conclusion that as a general rule, when gay rights claims win it is because the judiciary has been activist, by ruling in a counter-majoritarian direction, and when they do not win it is because the judiciary has been restrained and deferred to the popular majority sentiment. On the whole, the courts’ judicial activism is necessary to advance the interests of the gay community.

I had two final thoughts as I finished reading this book. First, I view the book as a welcome addition to a library supporting gay rights research and believe it would be useful to a broader audience of other scholars, activists, and advocates. It is gratifying for political science in general to see that law review journals no longer have a monopoly on this subject. In recent years, my shelf of scholarly literature written by political scientists on the gay rights struggle has grown significantly. I put Mezey’s book on par with some of the best work I have seen to date: PRIVATE LIVES, PUBLIC CONFLICTS: BATTLES OVER GAY RIGHTS IN AMERICAN COMMUNITIES (Button, Rienzo, and Wald 1997); ANTI-DISCRIMINATION LAW AND SOCIAL EQUALITY (Koppelman 1996); THE GAY RIGHTS QUESTION IN CONTEMPORARY AMERICAN LAW (Koppelman 2002); SAME SEX, DIFFERENT STATES (Koppelman 2006); GAY RIGHTS AND AMERICAN LAW (Pinello 2003); AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE (Pinello 2006); and the range of authors and articles found in A SYMPOSIUM ON THE POLITICS OF SAME-SEX MARRIAGE (PS, April 2005).

My second thought was that the time might be ripe for a full-scale attitudinal study of judicial votes covering all areas of gay rights litigation in federal and state courts of last resort. Pinello’s GAY RIGHTS IN AMERICAN LAW is an important first step in that empirical direction, but it specializes in analyzing state court family law cases. Obviously, because it will be costly in terms of both research resources and individual energy, I can see it being done by a young scholar at a prestigious research university who has a passion for the subject and a willing and helpful set of mentors.

REFERENCES:

Button, James W., Barbara A. Rienzo, and Kenneth D. Wald. 1997. PRIVATE LIVES, PUBLIC CONFLICTS: BATTLES OVER GAY RIGHTS IN AMERICAN COMMUNITIES. Washington D.C.: Congressional Quarterly.

Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” 6 JOURNAL OF PUBLIC LAW 279-95. [*467]

Klarman, Michael J. 1996. “Rethinking the Civil Rights and Civil Liberties Revolutions.” 82 VIRGINIA LAW REVIEW 1-67.

Koppelman, Andrew. 1996. ANTI-DISCRIMINATION LAW AND SOCIAL EQUALITY. New Haven: Yale University Press.

Koppelman, Andrew. 2002. THE GAY RIGHTS QUESTION IN CONTEMPORARY AMERICAN LAW. Chicago: University of Chicago Press.

Koppelman, Andrew. 2006. SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES. New Haven: Yale University Press.

Pinello, Daniel R. 2003. GAY RIGHTS AND AMERICAN LAW. New York: Cambridge University Press.

Pinello, Daniel R. 2006. AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE. New York: Cambridge University Press.

Segura, Gary M., Gregory B. Lewis, D. Sunshine Hillygus, Todd G. Shields, Frederick Liu, Stephen Macedo, Evan Gerstmann, Ellen D. B. Riggle, Jerry D. Thomas, Sharon S. Rostosky, Miriam Smith, Patrick J. Egan, Kenneth Sherrill, Donald P. Haider-Markel, and Mark R. Joslyn. 2005. “Symposium: The Politics of Same-Sex Marriage.” 38 PS 189-239.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

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

BROWN v. BOARD OF EDUCATION OF TOPEKA, KA, 347 U.S. 483 (1954).

DRED SCOTT v. SANDFORD, 60 U.S. 393, (1856).

GOODRIDGE v. DEPT OF PUBLIC HEALTH, 798 N.E.2d 941 (Mass. 2003).

HURLEY v. IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON, 515 U.S. 557 (1995).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

ROMER v. EVANS, 517 U.S. 620 (1996).

UNITED STATES JAYCEES v. ROBERTS ,468 U.S. 609 (1984).

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