From the Closet to the Altar Courts, Backlash, and the Struggle for Same-Sex Marriage

Same-sex marriage, a politically and culturally untenable idea only a quarter century ago, has become one of the most controversial issues in American life. Social conservatives are adamantly opposed to it and vote-conscious liberal politicians tiptoe around it, but an emerging majority's support for it makes it seem all but inevitable. While most observers seem to think that the legalization of gay marriage across the nation will occur at some point in the near future, in the meantime it continues to generate a sharp political backlash that has helped its opponents score political victories (even if they prove to be short-lived). If most young people support gay marriage, and if there are clear indicators that a majority of the population will support it in the very near future, why is the backlash so strong? As Michael Klarman will show inFrom the Closet to the Altar, it is because its proponents have adopted a court-centered approach for advancing their cause. In many states, advocates have taken to the courts and argued that bans on gay marriage are denials of civil rights. They have followed the path of earlier civil rights advocates, who also chose the court rather than the political arena as a forum to decide issues. But as Klarman shows, this tactic comes with clear costs. Using the courts to leapfrog public opinion can actually set a cause back because court decisions generate backlashes. Usually, judges are neither elected nor beholden to public opinion, and they are easily pegged as unaccountable elites by opponents. Klarman, who has examined virtually every state-level judicial decision and all of the legislative attempts to overturn same-sex marriage, contends that the movement has in many respects not only hurt its own cause by generating populist backlash, but has created a countervailing social movement that works against progressive causes on a host of other issues. Given the irreversible tectonic shift in public opinion regarding the issue, he argues that it will occur anyway. By providing such fuel to its opponents (much like withRoe v. Wade), the movement is in danger of creating a powerful countermovement that will use the issue for proponents of gay rights for years to come. Concise yet sweeping in scope,From the Closet to the Altaris not only a worthy successor to his Bancroft Prize-winningFrom Jim Crow to Civil Rights, it will reshape how we think about the issue.

Michael J. Klarman is the Kirkland & Ellis Professor at Harvard Law School. He is the author of From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (winner of the Bancroft Prize in History in 2005), Unfinished Business: Racial Equality in American History, and Brown v. Board of Education and the Civil Rights Movement.