America’s Struggle for Same-Sex Marriage
Assistant Attorney General
Commonwealth of Massachusetts
Appearing in the Newsletter of the
Massachusetts Lesbian and Gay Bar Association
Three years after publication of his path-breaking book Gay Rights and American Law, City University of New York government professor Daniel R. Pinello has followed up with another fine volume destined to be of considerable interest to many. America’s Struggle for Same-Sex Marriage, published by Cambridge University Press in May 2006 (paperback $20), chronicles the evolution of the social movement for same-sex marriage in the United States and examines the political controversies surrounding gay people’s quest for access to the civil institution of marriage. The book takes a close-up look at the momentous events that began in November 2003, when the Massachusetts Supreme Judicial Court declared unequivocally that Massachusetts may not “deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.” As we all know, that decision both triggered a political backlash of national proportion and prompted officials in San Francisco, Multnomah County (OR), Sandoval County (NM), and New Paltz (NY) to issue marriage licenses to same-sex couples.
Professor Pinello relies on in-depth interviews to provide an insider account of how courts, politicians, and activists maneuver to handle a hot-button social policy issue. He also offers a number of fascinating narratives about everyday people whom this debate has affected profoundly. In concert with this technique to dramatize the issues at play in Massachusetts and nationally, Pinello also casts a discerning eye on the inner workings of state and local governments as they grapple with cutting-edge moral policy questions. He uses first-hand reports from key people who participated in the ground-breaking events of 2003 and 2004 to lead the reader to a deeper understanding of what those events reveal about how ordinary citizens, interest groups, government officials, and the courts interact to produce policy in America.
One of the signal strengths of this book is that, not only does it serve up many interesting details of the same-sex marriage controversies that erupted far from Massachusetts (but nevertheless as a direct result of Goodridge), it also places those events in a much broader perspective (often times through the words of key players). For example, Molly McKay, a founder of Marriage Equality California, compared San Francisco Mayor Gavin Newsom’s startling decision in February 2004 to instruct the municipal clerk to issue marriage licenses to same-sex couples (three months before they became available to gay Bay State residents) to Mikhail Gorbachev’s 1989 decision to permit the Berlin Wall to fall. “Newsom realized [that the legal barrier separating gay from straight couples] was a thin wall, and [he] just took a hammer and struck a crack in it. And as many people as could fit came rushing through that crack from the other side.” During the (regrettably) brief “Winter of Love” in the City by the Bay, “lot of folks who thought the wall was impermeable realized it wasn’t.” Then when the California Supreme Court nullified those 4,000 same-sex marriages, the Golden State’s Marriage Equality group asked the perceptive question: “Does anyone’s marriage feel more solid and more protected now that ours are invalidated?” A San Francisco city attorney who had defended the mayor’s actions adopted a longer-term view of the negative repercussions arising from Newsom’s dramatic step forward. Pinello quotes Sherri Kaiser as saying, “What we’re seeing now with regard to same-sex marriage is no different from other civil rights struggles in our nation’s history. . . . An unpopular minority group’s asserting its rights for equal treatment always prompts a backlash, every single time. It incites a death rattle of the desire not to change, to keep people in their place and marginalized, to prevent them from being equal. [But in fact] we’re making huge progress.”
The only false note I spotted in this book came in the form of a direct quote from the Massachusetts Family Institute’s former President, Ronald Crews, who spouted the canard that Chief Justice Margaret Marshall ought to have recused herself from the Goodridge case because of comments she allegedly made at a GLAD fundraiser to the effect that the Vermont Supreme Court had not gone far enough in its Baker decision, which compelled the adoption of civil union legislation in that state. I have confirmed with GLAD’s long-serving director of litigation, Gary Buseck, that Justice Marshall has never spoken at a GLAD fundraiser. But this is a relatively minor error in a book that otherwise sheds remarkable light on one of the most controversial issues facing America today.
Professor Pinello’s analysis of the Goodridge decision’s ramifications alone is well worth the price of this book: “Goodridge radicalized and coalesced the gay community like no other event since the advent of AIDS in the 1980s.” Pinello correctly credits the Supreme Judicial Court with “achiev[ing] singular success in expanding the ambit of who receives the benefits of getting married in America, in inspiring political elites elsewhere in the country to follow suit, and in mobilizing grass-roots supporters to entrench their legal victory politically.”
Members of the Massachusetts Lesbian and Gay Bar Association will read with justifiable pride about the exploits of local heroes. We can also take heart from Pinello’s take-away message, which is that ordinary citizens reasonably well educated in the ways of our legal and political systems can effect profound social change, by dint of courage, persistence, and hard work, in a surprisingly short period of time.