Making Sense of the Marriage Debate
Schacter, Jane S., Texas Law Review
Making Sense of the Marriage Debate FROM THE CLOSET TO THE ALTAR: COURTS, BACKLASH, AND THE STRUGGLE FOR SAME-SEX MARRIAGE. By Michael J. Klarman. New York, New York: Oxford University Press, 2013. 276 pages. $27.95.
When are courts justified in trumping a majority's will? Can countermajoritarian decisions produce meaningful social change? Which minority groups command special judicial protection from the depredations of the majority? These are classic questions of constitutional law and theory and have shaped the scholarly literature for two generations. The ongoing movement for marriage equality features all of these questions and has, since its inception in the early 1990s, spawned a national debate about the role of courts.
Michael Klarman's From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage1 comprehensively traces the marriage debate with a special eye on the role of courts in propelling it. Among its many gifts is that of exquisite timing. The book was published only a few months before the Supreme Court announced in late 2012 that it would hear constitutional challenges to the federal Defense of Marriage Act and to California's Proposition 8.2 If the marriage debate were a symphony whose first movement began with an unexpected Hawaii decision in 1993,3 one might say that the Supreme Court's twin grants of certiorari in these cases foreshadowed a crescendo of sorts. Or maybe not. In fact, as the book reflects, the Supreme Court will enter this debate after some twenty years of groundbreaking litigation around the country,4 noisy debates in state and federal legislative chambers,5 and scores of hotly contested ballot measures.6 What the Supreme Court decides to do will be significant and highly watched. But one of the points the book communicates so effectively is that the trajectory of public opinion strongly favors marriage equality, with young people vastly more supportive than older citizens.7 The proverbial writing seems to be on the wall. Thus, the Court's first foray into this national debate may well tell us more about how the justices want their role in it to be remembered than it does about how the issue will be substantively settled in American society.
Klarman's book will, in any event, equip its readers to reflect thoughtfully about whatever the Court decides to do. The book sets the stage for the Court's action by offering a readable history, in chapter and verse, of the developments that have shaped the marriage equality movement. Klarman closely follows the legal trajectory from the 1993 Hawaii decision that made same-sex marriage appear imminent, 8 through the 2003 Massachusetts decision that actually legalized same-sex marriage for the first time in the United States,9 through many other state court decisions, as well as the more recent federal cases. But this history goes far beyond any narrow charting of judicial decisions or doctrinal developments. Klarman also closely explores the fierce backlash around the country in the form of dozens of anti-same-sex-marriage measures on the state and federal level,10 as well as the political context that shaped this backlash.11 Throughout, he deftly explores the key dynamics in the social, political, and cultural environment that have both fueled and thwarted the claim in favor of same-sex marriage. For those who have pressed for marriage equality, this history has been full of soaring victories and bruising defeats, along with plenty of political mobilization and countermobilization. But through it all, there has been a steady growth of public support12 for what was once seen as the marginal and socially implausible idea of state-recognized same-sex marriage.
The book sets out not only to tell, but to understand, this deeply mixed history and to consider what lessons we might draw from it. In this review, I first assess Klarman's rendering of the story and the conclusions he reaches. I then consider what the story he tells might suggest about some enduring questions in American constitutional law and scholarship. …