From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage

From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage

From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage

From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage

Synopsis

Same-sex marriage has become one of the most volatile issues in American politics. But if most young people support gay marriage, and if there are clear indicators that a substantial majority of the population will soon favor it, why has the outcry against it been so strong? Bancroft Prize-winning historian and legal expert Michael Klarman here offers an illuminating and engaging account of modern litigation over same-sex marriage. After looking at the treatment of gays in the decades after World War II and the birth of the modern gay rights movement with the Stonewall Rebellion in 1969, Klarman describes the key legal cases involving gay marriage and the dramatic political backlashes they ignited. He examines the Hawaii Supreme Court's ruling in 1993, which sparked a vast political backlash - with more than 35 states and Congress enacting defense-of-marriage acts- and the Massachusetts decision in Goodridge in 2003, which inspired more than 25 states to adopt constitutional bans on same-sex marriage. Klarman traces this same pattern - court victory followed by dramatic backlash - through cases in Vermont, California, and Iowa, taking the story right up tothe present. He also describes some of the collateral political damage caused by court decisions in favor of gay marriage - Iowa judges losing their jobs, Senator Majority Leader Tom Daschle losing his seat, and the possibly dispositive impact of gay marriage on the 2004 presidential election. But Klarman alsonotes several ways in which litigation has accelerated the coming of same-sex marriage: forcing people to discuss the issue, raising the hopes and expectations of gay activists, and making other reforms like civil unions seem more moderate by comparison. In the end, Klarman discusses how gaymarriage is likely to evolve in the future, predicts how the U.S. Supreme Court might ultimately resolve the issue, and assesses the costs and benefits of activists' pursuing social reforms such as gay marriage through the courts. From the Closet to the Altar will stand as the definitive one-volume history of the tumultuous emergence of same-sex marriage in American life as well as a landmark study of litigation, social reform, and the phenomenon of political backlash to court decisions.

Excerpt

Court decisions interpreting the Constitution can intersect social reform movements at various points in their evolution. Sometimes courts take dominant social mores, convert them into constitutional commands, and then use them to suppress outlier practices in a few recalcitrant states. When the Supreme Court declared in 1965 that the Constitution protects the right of married couples to use contraceptives in the privacy of their own bedrooms, only two states in the country—those with the largest percentages of Catholics—had laws infringing on that right. When the Court in 2003 ruled unconstitutional state laws that criminalized sodomy between consenting adult homosexuals, only thirteen states still had laws on the books criminalizing sodomy, only four of them explicitly targeted homosexual sodomy, and no state actively enforced such a law. Court decisions such as these tend to be supported by public opinion and therefore are unlikely to generate much political resistance.

Other judicial interpretations of the Constitution divide the nation roughly down the middle. When the Supreme Court in 1954 declared public school segregation unconstitutional, twenty-one of the nation’s forty-eight states had laws either commanding or authorizing such segregation, and opinion polls showed that Americans were almost evenly divided in their views of the practice. Similarly, when the Court ruled in 1973 that women have a constitutional right to abortion, nearly equal numbers of Americans were on either side of the controversy.

Less frequently, constitutional rulings fly in the face of dominant public opinion. When the Supreme Court ruled in the early 1960s that state-sponsored prayer in public school violates the Establishment Clause, polls showed that roughly 70 percent to 80 percent of the country disagreed. Similarly, a sizable majority of Americans differed with the Court’s 1989 and 1990 rulings that the First Amendment protects the right to burn the flag in protest. . .

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