Courthouse Democracy and Minority Rights: Same-Sex Marriage in the States

230 Pages·2013·1.181 MB·English

by  Robert J. Hume

Courthouse Democracy and
Minority Rights
This page intentionally left blank
Courthouse Democracy and
Minority Rights
Same-Sex Marriage in the States
ROBERT J. HUME

1
1

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective
of excellence in research, scholarship, and education by publishing worldwide.
Oxford New York
Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid
Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto
With offices in
Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary
Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand
Turkey Ukraine Vietnam
Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by
Oxford University Press
198 Madison Avenue, New York, NY 10016
© Oxford University Press 2013
A ll rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, without the prior permission in writing of Oxford University
Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate
reproduction rights organization. Inquiries concerning reproduction outside the scope of the above
should be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data
H ume, Robert J.
Courthouse democracy and minority rights : same-sex marriage in the states/
Robert J. Hume.
pages cm
Includes bibliographical references and index.
ISBN 978-0-19-998217-2 (hardback)
1 . Same-sex marriage—Law and legislation—United States—States. 2. Political questions and
judicial power—United States—States. 3. Constitutional law—United States—States. I. Title.
KF539.H86 2013
346.7301ˇ68—dc23
2012043763
9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the
subject matter covered. It is based upon sources believed to be accurate and reliable and is intended
to be current as of the time it was written. It is sold with the understanding that the publisher is not
engaged in rendering legal, accounting, or other professional services. If legal advice or other expert
assistance is required, the services of a competent professional person should be sought. Also, to
confirm that the information has not been affected or changed by recent developments, traditional
legal research techniques should be used, including checking primary sources where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the
American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com
“It should come as no surprise that judges are most at risk when they uphold the rights of
politically unpopular minorities against the wishes of the majority.”
—Th e Honorable Marsha Ternus,

Former Chief Justice, Iowa Supreme Court
This page intentionally left blank
CONTENTS
Preface ix
Table and Figures x i
INTRODUCTION
PART I 1
1. Promises, Promises
CHAPTER 3
2. Understanding the Impact of State Supreme Courts
CHAPTER 25
THE LEGAL CONTEXT
PART II 55
3. Early Same-Sex Marriage Decisions
CHAPTER 57
4. Massachusetts and Beyond
CHAPTER 76
AN ANALYSIS OF STATE
PART III
JUDICIAL IMPACT
97
5. Policy Initiation: Th e Diff usion of Same-Sex Marriage
CHAPTER
Cases across the States
99
6. Policy Legitimation: Evaluating the Capacity of State
CHAPTER
Courts to Change Public Opinion
142
vii
viii Contents
7. P olicy Endurance: Th e Enactment of State
CHAPTER
Constitutional Amendments Prohibiting Same-Sex
Marriage
165
8. Th e Promise of State Courts
CHAPTER 188

Bibliography 1 99
Table of Authorities 211
Index 2 13
PREFACE
Works of this scope incur many debts. It should go without saying that there would
be no book if same-sex couples had not pressed the cause of marriage equality in
state supreme courts over the past two decades. Th ese pioneers—along with the
LGBT public interest groups that coordinated their eff orts, such as Lambda Legal
and the Gay & Lesbian Advocates & Defenders (GLAD)—made possible a sea
change in state marriage law, reforms that were virtually unthinkable as recently as
the early 1990s. Of no less signifi cance were the eff orts of judges in states such as
Hawaii, Vermont, Massachusett s, California, Connecticut, and Iowa, who withstood
withering public criticism, and sometimes the loss of their jobs, for standing up for
equal rights.
I began working on this book in the spring of 2009, when I was on leave from the
political science department at Fordham University, thanks to the award of a faculty
fellowship from the university. Th e previous year had been a period of remarkable
highs and lows for supporters of marriage equality, with court victories in California
and Connecticut followed quickly by the passage in California of Proposition 8.
Th en, during the semester when I was on leave, the Iowa Supreme Court surprised
the nation with its own decision favoring marriage equality. Th e time seemed right
to begin studying the origins and consequences of these decisions, to make sense
of whether and how the impact of state supreme courts diff ered from the impact of
landmark U.S. Supreme Court decisions from the past. As it turned out, the spring
of 2009 also proved to be a turning point for same-sex marriage reform eff orts, as
the focus shift ed from state courts to state legislatures and the federal courts, mak-
ing it a particularly appropriate time to refl ect on what the contribution of state
courts had been to the movement.
Numerous colleagues assisted me over the next few years in developing the fi nal
manuscript. Perhaps most generous were the colleagues within my own depart-
ment. Jeff Cohen, who suggested the title, gave comments on several early draft
chapters. He also, together with Rich Fleisher and Costas Panagopoulos, collabo-
rated with me on the 2008 Cooperative Congressional Election Study (CCES),
ix