From the Closet to the Altar: Courts, Backlash, and the Struggle for Same Sex Marriage – A Book Review


Gay marriage is inevitable, according to Harvard Law School professor Michael J. Klarman in his book From the Closet to the Altar: Courts, Backlash, and the Struggle for Same Sex Marriage.  He makes this claim because young people today, who are more likely to know someone who is gay and to have grown-up in a gay friendly environment, support same-sex marriage by as many as forty percentage points over older adults, who tend to oppose it.  Klarman suggests that having a gay friend or family member correlates to supporting gay rights, so the coming out of every gay and lesbian and every same-sex couple means more votes for gay equality “[b]ecause few people favor discrimination against those whom they know and love” (p.197).  This more welcoming social environment has ushered same-sex marriage into our state and federal courts.  Klarman includes a helpful time line of all major court decisions and legislation relating to same-sex marriage (prior to the 2012 ballot measures and the United States Supreme Court’s granting of certiorari in two same-sex marriage cases[1]).

At the beginning of the book, Klarman defines the historical context of the gay rights struggle.  Before the mid-1980s, most gays and lesbians were not open about their sexuality for fear of losing their jobs and families and having no legal recourse when such things happened.  Gay rights organizations worked strategically, with little money and few members, to convince some municipalities to adopt gay rights ordinances, only to see them defeated by local referenda.  Klarman points to this historical context to explain the surprise that both gay rights and conservative organizations felt when, in 1993, the Hawaii Supreme Court opened the door to same-sex marriage, holding in Baehr v. Lewin that a law restricting marriage to one man and one woman constituted a sex classification and thus required the strictest judicial review.[2]  Klarman provides only a brief analysis of the constitutional arguments for same-sex marriage: that discrimination against same-sex couples is not rationally related to the objectives that states have proffered thus far (i.e., protecting traditional marriage, promoting optimal environments for childrearing, and encouraging procreation).  He makes an intriguing argument, however, that Baehr became a turning point in gay rights policy only because the AIDS epidemic – which refocused the younger gay community on committed relationships and estate planning issues – had created the social environment that would champion Baehr and the subsequent similar decisions.  This brought more financial resources and allies to the gay community for the fight for same-sex marriage.

The discussion of the backlash after Baehr monopolizes the book’s narrative, but the episodes blur into one another because the political maneuvering of conservative and religious groups after each same-sex marriage win follows the same pattern: same-sex marriage opponents rallied behind defense of marriage laws or constitutional amendment initiatives to ban same-sex marriage after a state supreme court from an outside jurisdiction had found its state constitution gave same-sex couples the right to marry.  The federal Defense of Marriage Act[3] and defense of marriage laws in more than thirty states sprang from the backlash against Baehr.  Constitutional amendments banning same-sex marriage and, in most instances, civil unions and domestic partnerships, passed in twenty-seven states after Goodrich v. Department of Public Health.[4]  Klarman might have avoided the rote reporting in this section had he chosen to highlight the lives of plaintiffs, advocates, or opponents in the same-sex marriage struggle.  He does, however, raise the intriguing suggestion that the push for same-sex marriage may have hurt the gay rights movement in conservative states where gays and lesbians have yet to win even “basic legal protections against violence and discrimination in employment, housing, and public accommodations” (p.179).

With insightful explanations for the legislation against same-sex marriage, Klarman rebounds strongly in the book’s final pages.  He clearly notes that political backlash is more likely “[w]hen public opinion on judicial rulings divides heavily along regional or geographic lines” (p.186).  For instance, Goodrich generated little political opposition in Massachusetts because a majority of residents supported same-sex marriage.  However, in Ohio, Goodrich likely cost John Kerry the presidential election as George W. Bush increased his percentage of the 2004 popular vote in Ohio by double digits among groups who disproportionately oppose gay marriage (the religious, the elderly, the working-class, and African-Americans).

Klarman concludes that same-sex marriage is inevitable, not least because polls measuring shifts in attitudes are tracking similarly to those from the Civil Rights Movement.  A majority of Americans now support same-sex marriage (p.196) and, according to variables measured by statistician Nate Silver, this trend will continue until same-sex marriage is recognized in every state except those in the Deep South by 2016, and in every state but Mississippi by 2024 (p.202).

From the Closet to the Altar fastidiously reports on the litigation and legislative winners and losers in the same-sex marriage struggle.  This work will interest academics and law students alike, particularly those delving deeper into the more intriguing issues that Klarman raises.

~Cory Lenz~

This book review first appeared in 105 Law Libr. J. 233 (2013).

[1] Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), cert. granted sub nom., Hollingsworth v. Perry, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-144); Windsor v. U.S., 699 F.3d 169 (2nd Cir. 2012), cert. granted, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-307).

[2] Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

[3] Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 7 U.S.C. § 1738C and 1 U.S.C. § 7).

[4] Goodrich v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003) (holding that the prohibition of same-sex marriage violated the Massachusetts Constitution).

Leave a comment

Filed under Book Reviews - The Stranger the Better, Books & Stuff, Library, Of Interest to Law Students

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s