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Families First: GLBT Family Issues and Resources (February 2015): The Law and Same-Sex Marriage

By Ellen Bosman

The Law and Same-Sex Marriage

The anti-marriage and marriage equality movements both use the legal system to pursue their goals. Selecting a representative sample of books in this area is complicated by the plethora of materials. For example, a keyword search in Books in Print for the phrase “same-sex marriage” and the keyword “law” (limited to 1992-2014 and the audiences “scholarly and professional” or “college”) produces 28 unique titles, excluding government documents, non-US titles, legal guides, and treatises from various associations. In these results, scholarly legal texts hostile to same-sex marriage were nonexistent. James Dobson’s Marriage under Fire is one well-known book in this list; however his book touches only partially on legalities. Coming close to meeting the definition of scholarly, but not among the BIP search results, is Mathew Staver’s Same-Sex Marriage, from a law professor and founder of a Christian legal ministry. This book does not employ scholarly legal rhetoric, but the author is professionally situated to address the questions at hand. His section on legal issues comprises sixteen pages, making it one of the longer chapters in the book. Staver casts his arguments in a legalistic interpretation of the Bible, the importance of opposite-gender parents to child development, and the threat to the institution of marriage and traditional values. Unsurprisingly, this title was not reviewed in mainstream sources.

Those interested in scholarly legal examinations supporting marriage equality will find that the works of William Eskridge are pertinent to any academic collection. His The Case for Same-Sex Marriage is one of the earliest scholarly approaches to same-sex marriage. He followed up with Equality Practice. Eskridge’s exhaustively researched books are marked by a lucid writing style amenable to most readers. His comparison of civil unions to marriages in Equality Practice is especially relevant to those who claim civil unions should be sufficient to secure GLBT rights. Straddling the line between religion, law, and politics is A Time to Embrace by William Stacy Johnson. As a theology professor and lawyer Johnson tackles same-sex marriage from theological, legal, and political viewpoints. This interdisciplinary approach is refreshing, and readers are treated to a comprehensive, readable overview arranged around seven theological points. Chapter three is titled “Biblical and Theological Case for the Consecration of Same-Gender Unions.” In recommending the book, a Choice review by R. L. Herrick (CH, May’07, 44-4998) noted the valuable endnotes and comparative tables.

Despite an increase in the number of states offering same-sex marriage, most states continue to block these marriages. Even those couples fortunate enough to be legally wed risk a rejection of this status when crossing state lines. Law professor Andrew Koppelman investigates both sides’ invocation of the Constitution as justification for their position—either accepting or rejecting the arguments surrounding the “Full Faith and Credit Clause”—and offers possible solutions in Same Sex, Different States. Jason Pierceson traces the historical course of the same-sex marriage debate from the state level through to the Supreme Court in the densely packed Same-Sex Marriage in the United States. The primary benefits of Pierceson’s work are its overview of GLBT rights since 1950; a structure organized by region, which lends itself to the inclusion of lesser-known statelevel court cases; and the accessible writing style. A Choice review by P. J. Galie (CH, Nov’13, 51-1765) described this work as “careful and well documented” and an “informative up-to-date review and analysis.” Enveloping much of the same ground as Pierceson, but including observations on the backlash to GLBT rights is Michael Klarman’s From the Closet to the Altar. His writing style and chronological approach will be helpful to those unfamiliar with the broad nature of the subject matter. Photographs of individuals seeking marriage and its attendant privileges humanize the book. Both books provide a sociopolitical look at marriage equality and the cycles of gay rights. Mary Bernstein and Verta Taylor anthologize divergent opinions on marriage equality from within the GLBT community in their edited volume The Marrying Kind? Contrary to media portrayals not all GLBT individuals believe in marriage equality. This wide-ranging, evenhanded collection looks at rhetoric, literature, activism, and other interrelated topics. Several pieces are enhanced with statistics and photographs; Katrina Kimport’s novel piece titled “Being Seen through Marriage” looks at lesbian wedding photographs as “cultural performances … by which social movements make collective claims toward visibility and the ‘normalization’ of same-sex marriage.” Kimberly Richman also uses personal anecdotes in her award-winning Courting Change. Thirty-six interviews of parents, attorneys, and judges complement 316 legal cases, the oldest dating back to 1952, to create a scholarly approach suitable for upper-level undergraduates, law school students, attorneys, and judges. A list of cases is provided, along with the questions used during the interviews.

Works Cited