Same-Sex Marriage: The Legal and Psychological Evolution in America, and: Courting Equality: A Documentary History of America's First Legal Same-Sex Marriages (review)

I suspect that, upon reading these two books about same-sex marriage in the United States, even people who remain uneasy about fully embracing a politics of marriage may come away challenged to consider seriously its value. Though each offers a very different kind of depiction about the recent battle for legal recognition of same-sex marriage, when read together, the two books leave the reader with the overwhelming sense that to be against same-sex marriage is to be against the absurdly obvious progress (and precedent) of law, years of rigorous psychological research and, well, utter joy and happiness (as portrayed by pictures of hundreds of grinning same-sex couples getting married). Regardless of one's perspective, however, these books provide captivating portraits of the politics of gender, family, sexuality and gay and lesbian rights in the United States today that make them worthy of a critical reading.

I recommend reading Same-Sex Marriage: The Legal and Psychological Evolution in America first. Two of the authors are lawyers, one is a psychologist and one a psychiatrist. In the preface, they clearly state their perspective: "We believe that same-sex marriage is mandated by social justice, is consistent with the best interests of America's children, and is constitutionally consistent with antecedent rulings" (ix). Interestingly, the book also opens with each author thanking her/his husband or wife, thus, presumably, "coming out" as heterosexual and married. They end the preface with an invitation to the readers to learn about the issue so that their opinions may "rest on fact." The facts they present in the rest of the book are "facts" of law and psychological research. Yet, by the time one reaches the final chapter it is not the facts, per se, that become persuasive, but the more general story the authors construct—that U.S. society, as reflected in the advancement of its law and social psychological research, has progressed to the point of being ready for same-sex marriage. The rhetorical move the authors present to the reader is that not to support same-sex marriage once one has read their book is to go against "evolution"—same sex marriage is just a natural development of cultural evolution, as it were.

The case that these authors make for supporting same-sex marriage is grounded in their understanding of law, with which they begin and end the book. The first chapter, "The U.S. Supreme Court: Five Cases and One Anomaly," tells the story of five Supreme Court cases that, according to the authors, show a trend toward recognizing that (most) private, consensual, sexual decisions do not need to be regulated by law. Thus, the authors argue we are primed to see same-sex marriage as a constitutional right today. They extend their argument in the next chapter, "The Evolution of State Law towards Sexual Privacy," by focusing on state law, detailing actions by state legislatures over the past forty years that have resulted in increased recognition of sexual privacy. For instance, the authors offer examples of statutes about adultery, fornication, abortion, and sodomy to chart an evolution of sexual privacy at the state level. They also discuss divorce and child custody law to delineate this trend, arguing, for example, that divorce law today has developed to the point where "the people involved now make the sexual decisions, not the government" (19).

The authors culminate their case in support of same-sex marriage by returning to a discussion of current law in the last three chapters. They first discuss adoption law, showing both how (most) legislatures...