Vol. 12 No. 7 (July 2002) pp. 318-321

EQUALITY PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS by William N. Eskridge, Jr. New York: Routledge, 2002. 280 pp. Cloth $75.00. ISBN: 0-415-93072-3. Paper $17.95. ISBN: 0-415-93073-1.

Reviewed by Evan Gerstmann, Department of Political Science, Loyola Marymount University.

Although a relative newcomer to the mainstream political and legal debate, the issue of same-sex marriage has already generated a rich and increasingly deep literature. Yale Law Professor William N. Eskridge's new book, EQUALITY PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS, adds to this literature by situating the same-sex marriage debate within broader social science questions about judicial efficacy and broader issues in political theory, including communitarianism. The book works as an integrated whole and would serve as an excellent introduction to these topics for undergraduates regardless of their general interest in gay and lesbian issues. Indeed, it is a shame that this book will probably will not receive the wide general readership that its scope and quality deserves. As I have noted in other reviews, while the legal and liberal arts academies revere "diversity," books and articles on lesbian and gay issues are almost never assigned in non-gay themed classes, no matter how relevant they are to the classes topic., and the same work, in conference paper form, is all too often assigned to lgb-themed panels ignored by mainstream social scientists and legal scholars. In the case of EQUALITY PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS, this is a particular shame, because it so successfully engages a broad array of issues in the context of treating one of today's leading controversies. This is certainly not to say that it is a flawless book. In fact, as will be explained, I disagree with its central assertions and conclusions. Nevertheless, it is well written, thoroughly researched and will probably persuade many of the power of its arguments.

Eskridge's book lobbies hard for "equality practice," which is essentially a strategy of patient incrementalism with regard to minority rights, particularly gay rights. He asserts that the lesson of American history and of comparative law is that gay rights do not come about as a result of sweeping judicial pronouncements. Rather, they are the ever-evolving product of incremental, often legislatively driven change. In America, he sees the arc of equality practice as follows:

"First, the state must repeal all laws making consensual same-sex intimacy criminal, as that allows lesbians and gay men private spaces for personal flourishing without state interference. Many will 'uncloset' themselves to families, friends and co-workers. This educative process will help straight people accept the second step, which is state laws prohibiting public and private discrimination against sexual and gender minorities, especially in the work place.... The third step is recognition of same-sex relationships--usually without yoking it to the term marriage.... After this kind of experience, it is possible for the

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government to move to same-sex marriage without creating a rift in the community" (p. xiv).

Eskridge backs up this argument not only by reference to American legal history, but by a thorough comparative survey of Western nations. Those nations with same-sex marriage (only the Netherlands as of yet) or very strong, almost marriage-like, civil unions came to that position slowly and incrementally, not suddenly, or through judicial decree. He sees these nations as providing models for American proponents of same-sex marriage.

Not surprisingly then, Eskridge is a strong supporter of the Vermont Supreme Court's decision in BAKER v. STATE (2000). Interpreting the "common benefits" clause of the Vermont State Constitution, the high court of that state held that same-sex couples are entitled to all of the legal benefits of marriage, but left it up to the legislature how to make that happen. Rather than allow same-sex couples to marry, the legislature created a new legal status of "civil unions," open to same and opposite sex couples that grants a broad array of marriage-like rights and responsibilities but is not called marriage. Some of BAKER'S critics have attacked civil unions as a modern version of "separate but equal" with "real" marriage for heterosexuals and a separate, inferior institution for gays and lesbians. Eskridge acknowledges the shortcomings of civil unions, but he rejects the comparisons to PLESSY v. FERGUSON (1896). He notes the very different tones of BAKER and PLESSY and explains that Vermont has now gone farther than other state in giving legal recognition to same-sex relationships. Further, he sees BAKER as setting the United States (or at least many states) on a course toward a broad "menu" of legal relations available to all couples regardless of sexual orientation. This menu would include marriage, civil unions, and a variety of less encompassing legal partnerships as well as the more restrictive form of marriage called "covenant marriage."

However, Eskridge does recognize that there is a significant difference between civil unions and marriage, and this unequal status for same-sex partners is a problem for any society committed to Rawlsian liberalism. He responds by noting that Rawls is not the undisputed visionary of Western political thought. "Full equality along Rawlsian lines ought to be the goal for a liberal polity, but a polity that is a democracy and whose citizens have heterogeneous views about important matters is one where immediate full equality is not always possible, not practical, not even desirable" (p. 148). He contrasts Rawlsian liberalism to its familiar sparring partner, communitarianism-in particular the brand of communitarianism articulated by Michael Sandel. "If Rawls takes the autonomous individual as his starting point, Sandel starts with the citizen connected with her community. Rawls organizes the relationship between the citizen and the state around rights, Sandel around responsibilities" (p. 159). Eskridge notes that much of the more articulate opposition to same-sex marriage is of a communitarian bent, emphasizing the role of heterosexual marriage and child-rearing as bedrocks of family and community. Resisting the temptation to demonize those who oppose lesbian and gay rights, he acknowledges that, "Voters in both liberal Democratic Hawaii and conservative Republican Alaska voted by more than two-to-one margins against same-sex marriage after a fair and informed public debate in 1998" (p. 161).

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Eskridge attempts to resolve the tension between his belief that gays and lesbians have the right to marry and his acknowledgment of the community's right to resist judicially imposed practices that many believe undermine community. He proposes the following dichotomy: "The conditions of citizenship in western democracies entail our commitment to recognition of liberal rights justified by public reason, but the implementation of those rights entails a deliberative process that considers a broader communitarian array of arguments and values. In a nutshell: Rawlsian rights and Sandelian remedies" (p. 165). This argument fits well with his support for BAKER and for civil unions. The Rawlsian liberal court finds a right to legal equality for same-sex couples but allows the legislature to respond to community concerns in fashioning the civil union remedy. Although this may not bring full legal equality to same-sex couples, the shortfall is a necessary bow to community sentiment and can be made up, incrementally, over time.

All in all, the argument is well crafted, drawing upon American legal history, comparative law and political theory to converge on the idea of incremental "equality practice." Nevertheless, the argument and the book have some flaws that are serious enough to leave me unconvinced of the ultimate persuasiveness of its argument. Most significantly, Eskridge fails to acknowledge the unique nature of the burden and marginalized treatment that lesbians and gay men are being asked to bear. Marriage is among the oldest, most important and most cherished rights of free adult persons in any society. To be denied the right to marry is a far heavier burden than say, being turned down for a particular job or denied an apartment in a particular building. Civil unions fall far short of marriage, especially because they do not survive when the couple moves to another state. However, the denial of equality goes well beyond what a laundry list of missing rights could describe. Official state policy that gay men and lesbians are not deserving of the status of marriage carries with it a stigma--an endorsement of marginality--that Eskridge fails to fully acknowledge. Imagine if Jews or Muslims were told that they could have all the religious freedoms of Christians-just so long as they did not hold themselves out as religions. Sometimes 90 percent of what one is entitled to is grossly inadequate, depending upon the reason that the remaining 10 percent is being withheld.

The idea that even if gays and lesbians are constitutionally entitled to marry, they should settle for less, has been gaining wide currency. In addition to Eskridge, Cass Sunstein and Richard Posner have endorsed this view. But none of these legal notables have acknowledged how unusual and extreme it is for an unpopular minority to be told that their right does not come with a remedy for the foreseeable future. Eskridge's examples of equality practice serve his argument poorly. He notes that in 1950, Governor Thomas Dewey convinced the New York State legislature to demote consensual sodomy from a felony to a misdemeanor. In 1980, the New York Court of Appeals ruled that the law was unconstitutional, and, "The legislature finally repealed it in the year 2000, without a whimper from the traditionalists" (p. 194). To this reviewer at least, a fifty-year gap from Dewey to repeal in a state with one of the largest and most powerful gay constituencies in the Nation is hardly evidence of the power of incrementalism. His second example is BROWN II'S famous/infamous "all deliberate speed" approach to desegregation. It is a surprising example as Eskridge

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concedes that, "To the extent that the Supreme Court's desegregation campaign was an equality practice, it was not a smashing success" (p. 194). His last example is perhaps the most telling, although not in the direction he argues for. He avers that the Supreme Court's decision in PLANNED PARENTHOOD v. CASEY is an example of equality practice in that it backed off from ROE v. WADE'S rigid trimester framework. He suggests that it would have been better if the original decision in ROE had been more like BAKER and allowed for more legislative input and compromise. Perhaps so, but notwithstanding CASEY'S jettison of rigid trimesters, the Court has given all women an absolute right to abortion for any reason, regardless of the moral views of the State orf community or the father's wishes, and the Court has stuck to this in the face of virulent public opposition. Nor despite very powerful communitarian objections urged on them by large sections of society, has the Court flinched when called upon to protect the rights of Nazis, the Ku Klux Klan, flag burners, or purveyors of computer-generated child pornography,. No other group in America today is being asked to make the kind of concessions to community values that are being asked of gays and lesbians. At a time that the courts are about to come under enormous pressure, post- September 11, to compromise on remedying civil liberties violations by law enforcement and espionage agencies, this is a very bad time to urge courts to rethink the balance between individual rights and community preferences.

Nonetheless, Eskridge's EQUALITY PRACTICE is a truly excellent book-informative, well written, and broad in scope and inquiry while maintaining a clear argument. It nicely integrates global, historical and contemporary legal and political perspectives. It is hard to imagine the person who would not learn from reading it.

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Copyright 2002 by the author, Evan Gerstmann.
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