Vol. 28 No. 5 (August 2018) pp. 56-58AMERICA'S WAR ON SAME-SEX COUPLES AND THEIR FAMILIES: AND HOW THE COURTS RESCUED THEM, by Daniel R. Pinello. New York: Cambridge University Press, 2017. 330 pp. Cloth $89.87. ISBN: 9781107123595. Paper $33.03. ISBN: 9781107559004.
Reviewed by Erin M. Mayo-Adam, Department of Political Science, Hunter College, CUNY. Email: Erin.Mayo-Adam@hunter.cuny.edu
In AMERICA’S WAR ON SAME-SEX COUPLES AND THEIR FAMILES: AND HOW THE COURTS RESCUED THEM, Daniel R. Pinello provides a masterful account of how lesbian and gay couples were impacted by Super DOMAs and how they effectively fought back against the anti-gay movement through litigation, culminating in the legalization of marriage equality through the Supreme Court decision OBERGEFELL V. HODGES in 2015. AMERICA’S WAR serves as the bookend to Pinello’s excellent 2006 book AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE. As in AMERICA’S STRUGGLE, Pinello’s most recent book articulates a compelling argument supporting the use of courts in struggles for social change. In doing so, the work re-enters a decades-long scholarly debate about whether or not the courts can ever serve as vehicles for achieving rights wins. Pinello incisively illustrates how courts have played a decisive role in securing the right to marriage for lesbian and gay couples. The volume focuses on the trauma same-sex couples experienced during Super DOMA campaigns, what happened to these couples and their families after Super DOMAs became law, and the role the courts played in eliminating Super DOMAs across the United States.
AMERICA’S WAR digs deeper into the role of the courts in movements for social change than Pinello’s previous work. The book uses rich ethnographic data – 203 in-depth interviews with same-sex couples across six different states – to illuminate the interdependence between courts and politics in struggles for change. Pinello persuasively articulates how the way local courts interpreted Super DOMAs often depended on the activities of interest groups. The impacts of Super DOMAs varied across the different states in Pinello’s study and that variation could be explained in part by the local power of anti-lesbian and gay interest groups. The more institutionalized and well-funded the organization, the more likely courts would restrict the rights of lesbian and gay couples when interpreting the extent of Super DOMAs.
The volume has several strengths. It compellingly illustrates how same-sex couples were impacted by Super DOMAs from the standpoint of the couples themselves. The book is an oral history of one of the darkest moments in recent history for lesbian and gay couples. The narrative is told through the lens of same-sex couples who lived through Super DOMA campaigns. This is a novel approach when it comes to scholarship and popular histories on same-sex marriage and the courts, which tends to overemphasize the role of national organizations. Pinello rightly identifies grassroots campaigning as the epicenter of the war on the rights of same-sex couples in the 2000s. This is refreshing in the field of law and politics, where scholarship too often examines only courts and political institutions without also analyzing the role that everyday people at the grassroots level play in the formation of law. Through this approach, Pinello not only delineates the concrete ways that lesbian and gay couples were negatively impacted by Super DOMAs, but he also illuminates how these laws motivated lesbian and gay couples to organize politically and to “steel themselves for more open lives as proudly lesbian and gay citizens of [*57] their state” (p. 63). This perseverance is awe-inspiring in light of the fear, insecurity, and emotional loss Pinello’s interviewees articulate in response to the ratification of anti-lesbian and gay laws. Pinello brilliantly crafts a narrative driven by these interviews, which makes the book a must-read for scholars of law and politics.
In addition to his ethnographic research, Pinello also analyzes how lower court interpretations of the 2013 Supreme Court case UNITED STATES V. WINDSOR set the stage for OBERGEFELL V. HODGES. It is in this analysis that Pinello shows how notoriously anti-gay Justice Antonin Scalia’s dissent in WINDSOR backfired in spectacular fashion. Pinello finds that Scalia’s dissenting opinion, which articulates how the logic of WINDSOR can be used to strike state laws banning same-sex marriage, was used by 65 percent of “federal trial-court dispositions that found a marriage right for same-sex couples” (p. 237). In addition to the intriguing role Scalia’s dissent played in lower court decisions supporting a right to marry, Pinello also debunks the claim made in Chief Justice Roberts’ dissent in OBERGEFELL that those who supported bans on same-sex marriage were not motivated by animus towards same-sex couples. Pinello expertly eviscerates this argument through the language of proponents of same-sex marriage bans, most notably the President of Ohio’s Citizens for Community Values, Phil Buress. It is difficult to see how leaders like Buress were motivated by anything other than animus towards same-sex couples after reading Buress’s justification for denying the rights and benefits of marriage to same-sex couples in the concluding chapter of Pinello’s book.
Although Pinello’s new volume is an excellent account of how same-sex couples were impacted by Super DOMAs and persuasively delineates how courts matter in struggles for social change, there are some areas where Pinello could do more to better support his core thesis. In a time period marked by renewed attacks on LGBTQ people with the rise of the Trump administration and an increasingly conservative turn on the Supreme Court, Pinello’s assertion that OBERGEFELL decisively rescued same-sex couples is over-stated. It is very possible that a conservative Supreme Court will further limit state-based non-discrimination policies and the rights and benefits associated with marriage. Some justices have already signaled that they would do so if given the opportunity. Pinello argues that OBERGEFELL “unalterably” fixed the fundamental right to marry for same-sex couples. This claim may have made sense when the book was published in 2016, a time when it seemed certain that the Democrats would carry the White House and solidify an LGBTQ-friendly Court. But in 2018, under an extremist white nationalist presidential administration and Republican-controlled Senate that has already seated one new conservative justice and has promised to seat another to replace Justice Anthony Kennedy (the author of OBERGEFELL), full access to the rights and benefits of marriage for same-sex couples is far from certain.
In addition, Pinello does not do enough to articulate the many ways in which OBERGEFELL failed to bring about the realization of full equality and citizenship for same-sex couples and LGBTQ people. This is clear through the language of Pinello’s interviewees. In his chapter on the effects of Super DOMAs on same-sex couples, some of Pinello’s interviewees describe experiences of discrimination even when policies prohibiting discrimination were in place or after they had documents prepared that protected their rights. For example, Equality Ohio’s executive director Sue Doerfer describes being denied access to her partner in a hospital that had a non-discrimination policy in place because an admissions officer did not implement the policy. This type of discrimination, where an individual in a business or a hospital refuses service despite the presence of a law or policy stating otherwise, continues today even after OBERGEFELL.
Finally, the interviewees in Pinello’s study skew white and middle- to upper-class. As a result, the book does not represent the full spectrum of experiences of cohabitating same-sex couples under Super DOMAs. This is somewhat understandable given the limits of Pinello’s [*58] study. People who experience double marginalization are often (and rightly) more skeptical of researchers and less likely to respond to calls for interviews. In order to overcome this, Pinello would likely have had to spend significant time in each of the states in his study and structure his methodology to include mechanisms for building relationships with local communities. This probably would have forced Pinello to sacrifice some of his state cases.
Despite these limitations, Pinello’s new volume is an excellent documentation of the experiences of same-sex couples who lived under Super DOMAs, and the book persuasively argues that the courts have an important role to play in struggles for social change. AMERICA’S WAR will be of great interest both to those who wish to gain a greater understanding of the complexities and pain involved in living under oppressive state regimes and to law and politics scholars interested in law and social movements.
CASES:
OBERGEFELL V. HODGES, 576 U.S. ___ (2015).
UNITED STATES V. WINDSOR, 570 U.S. 744 (2013).
© Copyright 2018 by author, Erin M. Mayo-Adam.
