From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage
If most young people support gay marriage, and if there are clear indicators that a majority of the population will support it in the very near future, why is the backlash so strong? As Michael Klarman will show in From the Closet to the Altar, it is because its proponents have adopted a court-centered approach for advancing their cause. In many states, advocates have taken to the courts and argued that bans on gay marriage are denials of civil rights. They have followed the path ofearlier civil rights advocates, who also chose the court rather than the political arena as a forum to decide issues. But as Klarman shows, this tactic comes with clear costs. Using the courts to leapfrog public opinion can actually set a cause back because court decisions generate backlashes. Usually, judgesare neither elected nor beholden to public opinion, and they are easily pegged as unaccountable elites by opponents. Klarman, who has examined virtually every state-level judicial decision and all of the legislative attempts to overturn same-sex marriage, contends that the movement has in many respects not only hurt its own cause by generating populist backlash, but has created a countervailing social movement that works against progressive causes on a host of other issues. Given theirreversible tectonic shift in public opinion regarding the issue, he argues that it will occur anyway. By providing such fuel to its opponents (much like with Roe v. Wade), the movement is in danger of creating a powerful countermovement that will use the issue for proponents of gay rights for years tocome. Concise yet sweeping in scope, From the Closet to the Altar is not only a worthy successor to his Bancroft Prize-winning From Jim Crow to Civil Rights, it will reshape how we think about the issue.
At a time when the role of the Supreme Court is again in the headlines, following its ruling upholding Obamacare, Harvard Law School's Klarman does a remarkable job using the debate over gay marriage as a lens for examining the factors that will go into the Court's inevitable engagement with the issue. Klarman (From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality) effectively conveys the history of the issue, from the 1950s to 2012, and provides just enough detail to allow lay readers to emerge with an informed understanding of the twisted path same-sex marriage has taken. Unfamiliar readers are likely to be surprised by how recently the cause landed on the national gay rights agenda, and will be intrigued by the debates within the gay community about the wisdom of pursuing such a goal. (Some viewed all marriage as part of a "patriarchal system," while others viewed it as an abandonment of "transforming the very fabric of society" by becoming mainstream.) Klarman repeatedly refers to the role of popular culture in shaping public opinion toward gays in general, and discusses how such shifts influence court rulings. Advocates will be encouraged by his well-buttressed conclusion: "Once public opinion has shifted overwhelmingly in favor. the Court will constitutionalize the emerging consensus." (Oct.) (c) Copyright PWxyz, LLC. All rights reserved.
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Oxford University Press
October 05, 2012
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