Vol. 12 No. 7 (July 2002) pp. 322-324
GAY RIGHTS ON TRIAL: A REFERENCE HANDBOOK by Lee Walzer. Santa Barbara. California: ABC-CLIO, 2002. 310
pp. Cloth $55.00. ISBN 1-57607-254-1.
Reviewed by Donald Crowley, Department of Political Science, University of Idaho.
This book is part of a series of "On Trial" books that seek to analyze how the legal and political system
has dealt with a variety of controversial issues. Previous volumes have dealt with such issues as voting rights,
pornography, racial violence, and Native American sovereignty. As a source book I found GAY RIGHTS ON TRIAL to
be valuable. As a work to assign to an undergraduate class, I have mixed emotions which I will discuss later.
This book by Lee Walzer is divided into two basic parts. The first part is the core of the work and the second
part provides judicial opinions and statutes related to the controversy over gay rights. The first half of the
book contains three chapters. First, Walzer provides an interesting chapter on the development of the gay rights
movement. He follows with a chapter reviewing and analyzing four major court cases involving gay rights, and completes
the analysis with a short chapter evaluating the impact of these cases on the future of gay and lesbian rights.
The first chapter does an excellent job of developing an historical overview of the gay rights movement and changing
public attitudes toward gays and lesbians. Walzer's historical account also provides a brief examination of the
tensions within the developing movement as it vacillated between those who sought assimilation into the larger
community and those who advocated a more radical transformation of American society through identification with
other oppressed minority groups. From Walzer's perspective the "Stonewall era marked the beginnings of significant
gay and lesbian legal activism" (p. 53) and the rise of the Gay Activist Alliance which emphasized "the
need to come out of the closet and organize into a political bloc…" (p. 53). The chapter also includes short
discussions of the gay community's response to various events and developments like the assassination of Harvey
Milk, the onslaught of AIDS, and the conflict over President Clinton's "don't ask don't tell" policy.
Surprisingly, even after a passing reference to the hate crimes debate there is no reference to the murder of Matthew
Shepard or how such events may have helped shift public awareness. As a brief historical account of the development
of gay and lesbian consciousness, and especially as background for undergraduates who have little or no knowledge
of the gay rights movement, the chapter works fairly well. On the other hand the chapter seems surprisingly detached
from the rest of the book. Ostensibly the purpose was to provide readers with a way of understanding the relationship
between gay activism and political and legal developments related to gay rights, but Walzer doesn't effectively
integrate this historical account with the rest of his analysis.
Page 323 begins here
The next chapter involves an examination of four court decisions central to the legal debate over gay rights. Walzer
reviews three U. S. Supreme Court decisions (BOWERS v HARDWICK, ROMER v. EVANS, and BOY SCOUTS v. DALE) and the
Vermont Supreme Court decision dealing with same sex marriage (BAKER v. VERMONT). For each case Walzer provides
an account of the majority and dissenting opinions and then offers his own analysis of the legal principles involved.
Walzer's analysis of these cases is well done and his criticisms of the majority opinions in Bowers and Dale are
effectively made. At a more general level, Walzer's basic argument is that legal analysis of gay rights claims
is still in a rather undeveloped state, and the Supreme Court has failed to analyze gay rights claims in a manner
consistent with the logic of its own precedents. While gay plaintiffs were losers in two of the three Supreme Court
cases analyzed (HARDWICK and DALE), Walzer nevertheless finds reasons for gay rights groups to be optimistic. His
optimism follows from two claims. First, he notes that, "Whether in employment discrimination, freedom of
speech and association, or family law, the issues posed by sexual minorities are being heard and increasingly favorably
adjudicated" (p. 142). Secondly, Walzer argues that even after losing in Dale gay rights advocates should
find cause for optimism. This is because "one could see how the change in attitudes in American society toward
gay rights had subtly influenced even the conservative justices on the Supreme Court, who adopted a respectful
tone toward gay people even if their legal reasoning proved hostile to Dale's claims" (p. 142).
Walzer acknowledges that the Court majority has placed gay people in what he terms "a constitutional ghetto"
and in cases like HARDWICK and DALE one finds evidence of "prejudice and stereotypes against gay men"
(p. 149). Still, he concludes that the increasing visibility of gays and lesbians will make it harder "for
courts to relate to gay people as exotic creatures from another planet" (p. 152.). "As this visibility
continues to grow, legal issues brought by gay people to the court system will be seen as mere variations on traditional
legal problems" (p. 153). To bolster his notion that gay groups will encounter increasing success in the courts
Walzer provides a brief review of the advances made by gay and lesbian groups in other societies like Canada, Israel,
and France. From this Walzer argues that it "is likely that some of these developing norms will influence
American law and political decision making on lesbian and gay rights issues" (p. 167). Although interesting,
this discussion is not well developed and doesn't really help to bolster his case that American society is tending
in the same direction. Those who have long advocated the repeal of the death penalty might well question whether
advances in other societies necessarily get reflected in the American legal system. This doesn't keep Walzer from
his final claim that "as legal and political processes work their magic, lesbians and gay men, like other
minority and immigrant groups before them, will become increasingly integrated into American society…" (p.
167).
The last half of the book contains various documents, court cases, statutes, and a chronology of key developments
in the pursuit of gay rights. Having all of these cases and statutes in one readily accessible volume is certainly
useful, although the lack of footnoting and references in the first part of the book is troubling. In a wide variety
of places Walzer makes general claims and assertions without providing any sources to
Page 324 begins here
support his position. For instance, several times Walzer comments that gay rights advocates are making progress
in the area of employment discrimination and family law. This may well be accurate, but Walzer doesn't develop
this theme and provides no references for others to see how and why he comes to this conclusion.
I found this book difficult to evaluate. The historical overview contained in the first chapter can certainly be
useful to many students asked, for the first time, to take a serious look at the gay rights movement. Walzer's
analysis of major Supreme Court cases and the legal logic employed there is certainly informative and his critique
effective. Why then am I ultimately unlikely to use this book even in a course like my Law and Society course where
I have in the past spent a reasonable amount of time on gay rights? Ultimately, I think my reluctance is because
the book is too narrowly focused on legal doctrine. The underlying assumptions too fixated on the notion that courts
can lead or at least respond appropriately to calls for social change. Although noting the importance of the growing
gay and lesbian movement, Walzer ultimately doesn't demonstrate how the movement has affected the cases he analyzes.
Nor does Walzer provide the reader with an overall understanding of how political and legal change occurs in the
United States.
As mentioned above, the book does not contain footnotes or any references to empirical evidence that would serve
to support his generalizations or bolster his optimism that the legal system will soon stop putting gays in a legal
ghetto. The book doesn't provide the type of empirical documentation that might help persuade reluctant students
that gays and lesbians need protection from discrimination. Walzer is a lawyer and analyzing cases is, of course,
what many lawyers do. Still, in a book of this nature it would be useful to provide some empirical support to show
how public attitudes have been changing and in what ways the legal and political system has misunderstood the issues.
Curiously, I don't disagree with Walzer's conclusion and indeed believe that slowly our legal system will cease
to reflect the bias and prejudices of past antipathy to gay and lesbian rights. The problem is that unless one
already believes that, I doubt if this book will persuade them. References to political and legal processes "working
their magic" doesn't ultimately tell us much about how such difficult change comes about or what roles courts
can or can't play in such processes. There is, of course, a great deal of social science literature that discusses
the possibilities and limits of courts in producing or responding to social change. Walzer's work doesn't refer
to any of them. This, I believe, reduces its usefulness.
***************************************************************************
Copyright 2002 by the author, Donald Crowley.