Table Of ContentCourthouse Democracy and
Minority Rights
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Courthouse Democracy and
Minority Rights
Same-Sex Marriage in the States
ROBERT J. HUME
1
1
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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
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“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
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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
