Vol. 28 No 1 (February 2018) pp. 1-3BEYOND MARRIAGE: CONTINUING BATTLES FOR LGBT RIGHTS, by Susan Gluck Mezey. Lanham, MD: Rowman & Littlefield, 2017. 320pp. Cloth: $70.00. ISBN: 978-1-4422-4862-5. Paper: $35.00. ISBN: 978-1-4422-4864-9.
Reviewed by Brian DiSarro, Department of Political Science, Sacramento State University. Email: disarrob@csus.edu.
Susan Gluck Mezey’s latest work, BEYOND MARRIAGE: CONTINUING BATTLES FOR LGBT RIGHTS, represents the continuation of her scholarship at the nexus of judicial politics, constitutional law, and the LGBTQ rights movement. Previously the author of QUEERS IN COURT: GAY RIGHTS LAW AND PUBLIC POLICY (2007) and GAY FAMILIES AND THE COURTS: THE QUEST FOR EQUAL RIGHTS (2009), BEYOND MARRIAGE traces the history of contemporary legal battles for LGBTQ rights, orients the reader to the present state of the law, and looks ahead to the future of the movement in light of the election of President Trump and Vice President Pence.
Written using a narrative style and historical-legal framework, the book is richly sourced. Mezey organizes the book thematically, with each chapter focusing on a specific policy area: employment discrimination, transgender rights, marriage equality, continuing struggles (mostly focusing on state laws exempting religious institutions and business owners from anti-discrimination laws), and global perspectives (focusing chiefly on Canada, South Africa, and the European Union).
BEYOND MARRIAGE is a major contribution to the field for a number of reasons. First, it provides an excellent snapshot of where we are at this unique point in time, with same-sex marriage legal nationwide but with much work still to be done. Post-OBERGEFELL, issues surrounding LGBTQ rights seemed to fade from the national consciousness. Correspondingly, much of the energy of the LGBTQ rights movement seemed to dissipate, and some began to talk of a “post-gay” era (On a personal note, I began to open my LGBTQ Politics courses with a justification for why the subject retained its timeliness and political relevance.). Mezey’s book clearly illustrates that the LGBTQ rights movement did not end in 2015, but rather transformed. With the lack of federal legislation to protect gays and lesbians from discrimination, statewide battles over transgender “bathroom bills”, and the Supreme Court set to hear a case pitting a religious baker against an engaged same-sex couple, these questions have never been more relevant.
Second, the work also exposes how deeply dependent recent LGBTQ legal victories have been on both sympathetic judiciaries and friendly presidential administrations. Throughout the book, but especially in sections that discuss recent battles over transgender rights, the Equal Employment Opportunity Commission, Department of Justice, and Department of Education have played a leading role in trying to ensure fair treatment for transgender and gender nonconforming individuals in both workplaces and schools. As Mezey discusses in her conclusion, these stances are likely to change (or have changed already) under the Trump administration; a troubling thought for those who favor LGBTQ equality. Moreover, through her detailed discussions of the ROMER, LAWRENCE, WINDSOR, and OBERGEFELL decisions, Mezey shows the Supreme Court to be a key ally in the fight for LGBTQ rights, despite its failure to explicitly raise sexual orientation to a higher level of judicial scrutiny. As we know, however, the composition of the Court could easily change over the next few years under President Trump.
Most significantly, BEYOND MARRIAGE, like all good scholarship, exposes paradoxes and provides fertile ground for further research. In fact, many of the questions Mezey raises could [*2] each be examined in books of their own. By grounding readers in a deep sense of history about the legal roots of modern LGBTQ rights claims and exposing the still unsettled state of the law in many areas, Mezey’s work points the way forward for both legal scholars and movement attorneys.
There are at least three interesting areas that merit attention from legal scholars going forward. First, Mezey discusses the federal courts’ interpretation of Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on several characteristics, including sex. Since the Supreme Court’s 1989 decision in PRICE WATERHOUSE, the prohibition against employment discrimination based on sex has increasingly been used to provide protection for transgender and gender nonconforming individuals. This is because “sex” has been interpreted to encompass gender roles. If a woman is discriminated against on the job for not acting in a stereotypically feminine manner, then surely she would be protected by Title VII. Therefore, since transgender and gender nonconforming individuals by definition do not conform to the stereotypical gender roles associated with their biological sex, they are covered as well. As Mezey says, “if it violates Title VII to discriminate against women because they lack charm and do not wear makeup, then it violates Title VII to discriminate against men because they do” (p. 30). However, despite the obvious nexus between sexual orientation and lack of adherence to traditional gender norms, the courts have not been willing to extend that logic to cover those complaining of discrimination based on sexual orientation. This creates a paradox where transgender and gender nonconforming individuals have much more protection under federal law than gays and lesbians, yet gays and lesbians seem to enjoy greater societal acceptance partly brought about by a string of high-profile legal victories at the Supreme Court. Will the courts ultimately extend Title VII to cover sexual orientation? Will that be seen as further evidence of judicial activism? How much leverage will Title VII provide going forward, even if its scope is not expanded? How much difference will a hostile administration make to the legal landscape?
This leads to the second interesting paradox raised by Mezey’s book. In ROMER, WINDSOR, and OBERGEFELL, laws that discriminated based on sexual orientation were struck down by the Supreme Court, yet the Court failed to explicitly raise the level of judicial scrutiny applied to such laws. To be sustained, laws that discriminate based on race or impinge a fundamental right must meet the criteria of strict scrutiny: they must further a compelling government interest, be narrowly tailored to that interest, and use the least restrictive means. Laws that discriminate based on sex must be substantially related to an important government interest, which is intermediate scrutiny. Lastly, to be sustained, laws that discriminate on any other basis (including sexual orientation) must only be rationally related to a legitimate government interest. This is rational basis, the lowest bar for discriminatory laws to clear. In a twist that my students always enjoy, the Supreme Court felt that Amendment 2 in Colorado, DOMA, and state same-sex marriage bans failed to meet even the lowest bar; they were not rationally related to any legitimate government interest. While that shows how weak the arguments on the other side were, in the view of the majority on the Court, it still left gays and lesbians less protected than they otherwise might be if the Court raised the level of scrutiny to intermediate or even strict, as the 9th Circuit has done. Officially, sexual orientation is still tested at the rational basis level of review (although, after WINDSOR, the lower courts felt that some form of heightened scrutiny or “rational basis plus” was the real standard). How will this play out for gay and lesbian rights in the future? When the Court is weighing religious free exercise claims against LGBTQ public accommodations claims, or is considering state laws that discriminate against gays and lesbians in more subtle ways than in ROMER or OBERGEFELL, will this have an impact? Will the Supreme Court follow existing Title VII logic and declare that laws that discriminate based on gender identity should be viewed with intermediate scrutiny without adjusting sexual orientation, thus applying different levels of scrutiny to different members of the LGBTQ community? [*3]
Finally, Mezey devotes significant attention in her chapter on transgender rights to the plight of transgender prisoners. Specifically, she focuses on the emerging Eighth Amendment case law related to the denial of hormone therapy, sex-reassignment surgery, and the safety of transgender inmates. In many states, transgender inmates are placed into sex-segregated prisons based on their gender assigned at birth rather than the gender they identify with. This often puts them at a significantly greater risk for violence. To combat this, prison officials often create another problem by placing transgender inmates in solitary confinement, ostensibly for their own protection. Moreover, many prisons routinely deny transgender inmates’ requests for hormone therapy (or only allow it if the inmate was already on hormones prior to being incarcerated) and sex-reassignment surgery. Increasingly, this is spawning Eighth Amendment claims of cruel and unusual punishment. While this case law is not as developed, it is an interesting area to watch and deserves further attention and examination by scholars.
While BEYOND MARRIAGE is certain to inspire scholars in the field, it also has great utility in undergraduate and graduate courses on LGBTQ Politics, Law & Society, Minority Politics, Public Law, and even Judicial Process. While Mezey provides rich granular detail that is sure to please those with a deep interest in the law and legal procedures, her narrative writing style and humanization of those involved in legal disputes pulls the reader in and makes the book accessible to undergraduates. The book is highly organized with each chapter focusing on a different topic, and while the author obviously supports LGBTQ rights the book provides extensive analysis without becoming anything close to polemical. Overall, BEYOND MARRIAGE is an excellent addition to the literature for both scholars and students.
REFERENCES:
Mezey, Susan Gluck. 2007. QUEERS IN COURT: GAY RIGHTS LAW AND PUBLIC POLICY. Lanham, MaryD: Rowman & Littlefield Publishers.
--- 2009. GAY FAMILIES AND THE COURTS: THE QUEST FOR EQUAL RIGHTS. Lanham, MD: Rowman & Littlefield Publishers.
CASES:
OBERGEFELL V. HODGES, 576 U.S. ____ (2015).
PRICE WATERHOUSE V. HOPKINS, 490 U.S. 228 (1989).
ROMER V. EVANS 517 U.S. 620, (1996).
WINDSOR V. UNITED STATES, 570 U.S. (2013).
© Copyright 2018 by author, Brian DiSarro.
