By David Cole
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One of Washington Post‘s Notable Nonfiction Books of 2016
In an age of executive overreach, what role do American citizens have in safeguarding our Constitution and defending liberty? Must we rely on the federal courts, and the Supreme Court above all, to protect our rights? In Engines of Liberty, the esteemed legal scholar David Cole argues that we all have a part to play in the grand civic dramas of our era — and in a revised introduction and conclusion, he proposes specific tactics for fighting Donald Trump’s policies.
Examining the most successful rights movements of the last thirty years, Cole reveals how groups of ordinary Americans confronting long odds have managed, time and time again, to convince the courts to grant new rights and protect existing ones. Engines of Liberty is a fundamentally new explanation of how our Constitution works and the part citizens play in it.
THE PATH TO MARRIAGE EQUALITY DID NOT BEGIN, OF COURSE, WITH EVAN WOLFSON’S Harvard Law School paper. The very fact that Wolfson could conceive of such a paper was itself testament to the efforts of countless gay and lesbian advocates before him, operating in far more difficult circumstances.
A good place to start in assessing the prehistory of the marriage equality movement is the Mattachine Society, one of the first gay organizations in the United States. Founded in Los Angeles in 1950, the Mattachine Society ultimately included chapters around the country, and in the 1950s and 1960s was the nation’s leading gay organization. It took its name from masked critics of ruling monarchs in medieval France. At its inception, the very idea of a gay organization was so radical that the group met only in secret.1
The Mattachine Society’s most illustrious member was Frank Kameny, a Harvard-educated astronomer who was fired by the US Army Map Office in 1957 when an FBI investigation revealed that he was gay. Kameny appealed his firing all the way to the Supreme Court, without success. But the experience prompted him to become one of the nation’s first openly gay activists. He founded the Washington, DC, chapter of the Mattachine Society in 1960, and also launched a systematic attack on the federal government’s discrimination against gay and lesbian employees. Notwithstanding his lack of legal training, Kameny operated as a “lawyer without portfolio,” assisting hundreds of employees in administrative appeals of their dismissals and shepherding their cases through the courts. With the support of the ACLU, he won his first victory in 1965, when the US Court of Appeals for the DC Circuit reversed the Civil Service Commission’s disqualification of Bruce Scott from the civil service on grounds of “immoral conduct.” In 1975, after many more battles with Kameny, the Civil Service Commission reversed its policy of categorically disqualifying gay and lesbian applicants. Kameny also took on the Defense Department for denying security clearances to gays and lesbians, and in 1975 it, too, abandoned that practice.2
The first challenge Kameny and the Mattachine Society faced was simply to be free to associate as gay men. Sodomy statutes made intimate relations between same-sex couples a crime. Psychiatrists considered homosexuality a mental illness. Admitting publicly that one was gay or lesbian could result in ridicule, harassment, assault, isolation from one’s family, the loss of a job, or worse. Most gays and lesbians understandably chose to keep their sexual orientation hidden.
The invisibility of the “closet” made mobilizing for lesbian and gay rights all but impossible. Thus, the first strategic step toward achieving equality was, as gay rights scholar and advocate Bill Eskridge has called it, a “politics of protection.” The aim was to create space for gays and lesbians to come together without fear of official harassment. Gay and lesbian community centers, bars, and bathhouses all served this function. The Stonewall riots of 1969, in which gay patrons at a Greenwich Village bar turned on police and collectively asserted their right to be out, gay, and together in a public place, were the most dramatic and historic manifestation of this initial phase.3
The next step was to make it safe—or at least, less costly—to “come out” by publicly identifying oneself as lesbian or gay. Gay rights groups fought for legal protections that would make it more likely that gay men and lesbians might feel sufficiently comfortable to identify themselves publicly. The ACLU Lesbian and Gay Rights Project, for example, invoked the First Amendment to protect the rights of students to form gay and lesbian student associations, first in colleges and later in high schools. And gay rights advocates argued for expanding anti-discrimination laws to prohibit discrimination on the basis of sexual orientation in employment, housing, and other fields.4
In the 1980s, the AIDS crisis transformed the gay community. Many men were in effect outed by the disease itself as it afflicted them or their lovers. The life-or-death necessity for research and treatment spawned the creation of new advocacy organizations, such as Gay Men’s Health Crisis and ACT UP, as gay men and lesbians increasingly recognized the pressing need for nondiscriminatory health services, and came to understand that only through political organizing could they convince the government to invest sufficient resources in developing effective treatments. In a tragic but real sense, gay rights came out and of age during the AIDS crisis, as growing numbers of gays and lesbians proclaimed their sexual orientation publicly, joined political associations, and engaged in collective action to demand equal care and respect.5
The AIDS crisis also set the stage for the fight for marriage equality. It urgently revealed the many problems that gay couples confronted when the states did not recognize their relationships. Gay employees whose partners were sick and dying could not get health insurance for them through their work. Gay men were denied visitation with their partners at hospitals because they had no officially sanctioned relationship with the patient. They often were not authorized to make end-of-life decisions for their partners. They faced difficulties dealing with funerals, estates, and the like, again because their relationships, even if longstanding, lacked formal status. The importance of “relationship recognition” became painfully evident, and the press ran many stories about the obstacles gay men faced as they navigated the ends of their partners’ lives.6
When advocates began to address the myriad problems gay couples faced in dealing with AIDS, they did not at first demand marriage, still an unthinkable option. Instead, they requested lesser forms of domestic partnership recognition and benefits. They began by approaching sympathetic private corporations, universities, and cities. Over time the concept of same-sex domestic partnerships took hold in a wide range of private and public settings. The same pattern is evident with respect to legal protection from discrimination.7
These developments, vitally important on their own terms, also contributed to making a marriage equality campaign possible. The care and support offered, and devastating losses suffered, by surviving partners became familiar to many straight Americans. As discrimination on the basis of sexual orientation was more widely prohibited, gay men and lesbians were more free to come out. It became increasingly common for straight people to learn that a family member, friend, colleague, or acquaintance was gay or lesbian—and deeply human and vulnerable. That knowledge in turn made it less likely that straight people would demonize, and more likely that they would empathize with, gay men and lesbians.
Some of the most important early gay rights advocacy focused not on legal and political change but on cultural transformation. In the midst of the AIDS crisis, gay activists founded Gay and Lesbian Alliance Against Defamation, now known simply as GLAAD. Their mission was to promote accurate and positive portrayals of gay men and lesbians in the news and entertainment media. Among other accomplishments, GLAAD helped persuade CBS’s 60 Minutes to suspend commentator Andy Rooney for three months without pay when he made homophobic remarks on air. It blocked a planned television show to be hosted by Dr. Laura Schlesinger, a radio talk show host who had described homosexuality as a “biological mistake.” GLAAD also encouraged comedian Ellen DeGeneres to have the character she played on her television show, Ellen, come out as lesbian, and helped to convince the news media to shift their terminology from “homosexual” to “gay and lesbian,” and from “sexual preference” to “sexual orientation.”8
There is no precise way to measure the effects of these wide-ranging efforts. But nearly all of the advocates, lawyers, and activists with whom I spoke agreed that each of the developments summarized here provided an important foundation for the marriage equality campaign. They helped make it possible for Evan Wolfson to write his law school paper, and for the many initiatives that would be necessary, inside and outside of courts, before the right to marriage equality that Wolfson envisioned could be realized.
AS THE NATION AWAITED THE SUPREME COURT’S LANDMARK DECISION IN OBERGEFELL v. Hodges in the summer of 2015, it seemed virtually inevitable that the Court would rule in favor of marriage equality. The majority of Americans favored recognition of same-sex marriage. Two years earlier, the Supreme Court had struck down a law denying federal benefits to married gay and lesbian couples. And in the interim, the overwhelming majority of lower federal courts had ruled that the Constitution required states to recognize same-sex marriage on equal terms with opposite-sex marriage.
But it was not always so. Some thirty years earlier, when Evan Wolfson was still in law school, a few isolated same-sex couples had already sued, asserting a right to marry, but their suits had been uniformly rejected. Same-sex sodomy was still a crime in many states. In its 1986 Bowers v. Hardwick decision, the Supreme Court ruled it constitutionally permissible for states to make gay sodomy a crime. If states could make it a crime for a same-sex couple to have sex, surely such couples could not claim a constitutional right to marry.1
Wolfson’s career is emblematic of the path of the marriage equality campaign more generally. His student paper, “Samesex Marriage and Morality: The Human Rights Vision of the Constitution,” was academic in both senses of the word: it was scholarly and thought provoking but seemingly insulated from the real world. Wolfson drew on philosophy, liberal political theory, and constitutional and human rights principles to argue that the Constitution should protect the right of same-sex couples to marry. The paper anticipated many of the arguments that the courts would confront when, more than a decade later, they first began to take seriously the claim for marriage equality. Wolfson rejected, for example, the extension of “quasi-marital status” or other sorts of partnership benefits as at best “separate but equal,” just as the Massachusetts and California Supreme Courts did more than two decades later when they each found that domestic partnerships and civil unions were insufficient to satisfy the mandate of equality. Discussing a 1976 Supreme Court decision that declined to invalidate Virginia’s sodomy law, Wolfson wrote that the dissenters, Justices William Brennan, Thurgood Marshall, and John Paul Stevens, “hit the critical constitutional points: free choice, intimate values, absence of harm, no legitimate state interest in regulation, and, finally, the inadmissibility of government promotion of ‘morality.’” These would eventually become the “critical constitutional points” in the marriage debate as well.2
Wolfson’s paper also articulated what would become the most important principle in the constitutional recognition of gay rights generally: namely, that “majority distaste or discomfort is no basis for the abridgment of protected human rights.” Many laws discriminating against gay men and lesbians have been founded on such moral disapproval, so rejection of that interest as an insufficient justification for differential treatment was a critical step. In 1987, dissenting in Bowers v. Hardwick, Justice Stevens made the same point: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” In 2003, in Lawrence v. Texas, the Supreme Court reversed Bowers, and Justice Anthony Kennedy, writing for the majority, quoted Stevens’s words with approval, making his dissent part of governing constitutional doctrine. That conclusion precluded states from successfully relying on moral opprobrium to justify their refusals to recognize same-sex marriage; and without moral disapproval, the states had great difficulty articulating a reason to deny same-sex couples the right to marry.3
Wolfson was not the first to make these arguments; many of them had been advanced in one form or other in the various unsuccessful lawsuits seeking recognition of same-sex marriage. What is most notable, in retrospect, is his paper’s nearly exclusive focus on formal legal arguments. The paper contained no discussion of what it might take politically, strategically, or culturally to advance this cause, an ironic absence given Wolfson’s eventual role as one of the marriage equality campaign’s lead strategists and organizers. As a law student, Wolfson saw constitutional law, as it had no doubt been taught to him, as a series of theoretical and normative propositions. As an activist lawyer, however, Wolfson soon learned that constitutional change required much more than a well-footnoted argument.
WOLFSON’S FIRST LEGAL JOB was as a prosecutor for the Manhattan district attorney’s office, but his heart wasn’t in it. The first openly gay prosecutor in the office, Wolfson obtained approval—extremely unusual for a prosecutor—to do volunteer work in his free time on gay rights cases. He worked in this capacity for Lambda Legal Defense Fund, the organization that had first made him realize that one could be a gay rights lawyer. In 1989, Lambda hired Wolfson as a full-time staff lawyer.
From his earliest days at Lambda, Wolfson urged the organization to press for equal marriage rights for same-sex couples. As he recalled, “my push on marriage defined me in the eyes of my colleagues, for better or worse.” His colleagues, like the rest of the gay rights movement, were sharply divided on the issue. A minority agreed that marriage equality was a worthwhile focus of their work. Many had seen the absence of marital status unnecessarily complicate the already tragic efforts of gay men to care for their partners dying of AIDS. And some agreed with Wolfson that the denial of marriage to same-sex couples was central to anti-gay discrimination because it reflected a rejection of the legitimacy of their love.
The majority of those in the gay rights movement, however, were opposed to fighting for marriage. When the National Gay and Lesbian Task Force polled its members in 1991 on the leading gay rights issues of the day, for example, it did not even list marriage as an option. Some opposed seeking marriage on ideological grounds. Many viewed it as an assimilationist project and preferred to forge and defend a distinct lesbian and gay identity and culture. They saw marriage as a fundamentally compromised institution, fraught with gender stereotypes, central both to women’s subordinate status and to the treatment of heterosexuality as compulsory. The divide often tracked gender lines, with lesbians more skeptical of marriage than gay men because of marriage’s role in patriarchal culture.4
Still other gay rights activists objected to pressing for marriage on strategic grounds. They believed the time wasn’t right, and gay rights groups would be better served prioritizing efforts to combat other forms of discrimination, police harassment, anti-gay violence, and sodomy prohibitions. Because it might provoke particularly intense opposition, some felt that seeking marriage could jeopardize efforts for equality in other areas. According to Wolfson, marriage was “the number one question that we fought about within the gay rights community.” In 1989, Lambda’s legal director, Tom Stoddard, and its lead lawyer, Paula Ettelbrick, took opposite sides in a much-publicized debate on same-sex marriage. Stoddard defended the struggle for marriage, while Ettelbrick expressed strong reservations. As Ettelbrick argued, “Justice for gay men and lesbians will be achieved only when we are accepted and supported in this society despite our differences from the dominant culture and the choices we make regarding our relationships. . . . I do not want to be known as ‘Mrs. Attached-to-Somebody-Else,’ Nor do I want to give the state the power to regulate my primary relationship.”5
Despite siding with Wolfson on the desirability of seeking same-sex marriage, Stoddard quashed Wolfson’s first attempt to bring a lawsuit for marriage equality. The opportunity arose in 1991, two years after Wolfson began full-time at Lambda. Three couples in Hawaii asked Wolfson to represent them in a state court challenge to Hawaii’s refusal to recognize same-sex marriage. Wolfson was eager to take up the fight and thought Hawaii a favorable place to do so. It was a liberal state, and had been an early proponent of both interracial marriage and women’s rights. But Stoddard declined Wolfson’s request to take the case, deeming it premature as a strategic matter. The ACLU also turned the case down, for the same reason. Indeed, at that time, according to Stoddard, “no gay rights organization of any size, local or national, [had] yet declared the right to marry as one of its goals.” Undeterred, the Hawaiian couples turned to a local civil rights attorney, Dan Foley. Perhaps reflecting his own internal ambivalence, Stoddard allowed Wolfson to work on the case as long as he remained behind the scenes, and Wolfson consulted closely with Foley as the case proceeded.6
Foley’s complaint was limited to claims that the refusal to recognize same-sex marriage violated Hawaii’s constitution. He did not assert that Hawaii’s practice violated the US Constitution, even though, as Wolfson had shown in his Harvard paper, one could certainly fashion such an argument. Lawyers generally do not forgo arguments that might support their cause; in fact, they are taught to take the opposite tack, advancing every alternative argument they can think of, even ones that are barely plausible. Foley (and Wolfson behind the scenes) resisted making federal constitutional arguments for a very particular reason: to keep their case out of federal court and therefore away from the US Supreme Court. The federal courts and the Supreme Court have the power to review federal legal issues decided by state courts, and defendants alleged to have violated federal law who are sued in state court have the right to transfer the case to federal court. But if a lawsuit filed in state court makes only state law claims, the federal courts have no power to interfere. By limiting their claims to state law, the Hawaiian couples avoided federal court, where they knew they had no chance of prevailing.
When Ninia Baehr and her partner, Genora Dancel, filed suit in 1991, the US Supreme Court was by no means ready to rule that states must recognize same-sex marriage. The Court had dismissed the issue as posing no substantial federal question in 1972. It had upheld a law making same-sex sodomy a crime in 1986. As of 1991, no state in the Union, and no jurisdiction in the world, recognized same-sex marriage, and the Supreme Court was not about to impose such recognition on the nation.
The odds, while still very long, were better under state law. For one thing, a victory in Hawaii would have direct implications only for Hawaii, and so was a more modest request. State constitutions may extend protections to individuals that are not recognized by US constitutional law. Advocates could strategically choose the most sympathetic states to pursue their clams. And a loss in state court under Hawaiian law would similarly be limited in its effects to Hawaii, whereas a loss on a federal claim would have nationwide implications. For these reasons, until 2009, nearly all of the marriage equality lawsuits limited their claims to state law and were filed only in the most hospitable state courts.7
In the Hawaii trial court, the Baehr couples initially received the same treatment that every suit before theirs had received: dismissal of all claims. When Baehr appealed to the Hawaii Supreme Court, however, that court reversed. The court’s decision, issued May 5, 1993, was the first in the nation to suggest that the denial of marriage to same-sex couples might be unconstitutional. The court reasoned, somewhat counterintuitively, that Hawaii’s law constituted sex discrimination, not sexual orientation discrimination, noting that the only reason Baehr could not marry her partner was her gender. But the law treated men and women equally in this respect—the reason a man could not marry his partner was his gender, after all. The real aim of the law was not to treat men and women differently, but to treat gay and lesbian couples differently from straight couples. However, the court’s reasoning was less important than the fact that it had taken the claim seriously and suggested that laws denying same-sex marriage might be unconstitutional. The Hawaii Supreme Court sent the case back to the trial court to give the state an opportunity to advance its interests for restricting marriage to opposite-sex couples. A formal ruling requiring recognition of Baehr’s marriage would await the result of the trial on remand. But the state’s burden would be substantial; under Hawaii’s constitution, marriage could be limited to opposite-sex couples only if the state had a “compelling state interest” for doing so.8
At the time, Wolfson called the Hawaii Supreme Court decision “a tidal wave out of Hawaii that will reach every corner of the country and affect every gay issue.” He was right, but at least in the short term, not in the way he meant. The decision sparked a powerful backlash not only in Hawaii but across the country. Hawaii’s governor and Speaker of the House, both Democrats, condemned the decision. Legislators criticized the court for judicial activism and passed a bill reaffirming that marriage is limited to opposite-sex couples.9
Several states on the mainland reacted similarly. Utah and South Dakota immediately passed laws making clear that marriage in their states was limited to straight couples, and that they would not recognize same-sex marriages performed in other states. In 1996, three years after the Baehr decision, thirteen states adopted similar laws; the following year another nine followed suit. Also in 1996, Congress overwhelmingly passed, and President Bill Clinton signed, the Defense of Marriage Act (DOMA), which both affirmed the rights of states to refuse to recognize same-sex marriages performed elsewhere and denied over one thousand federal marital benefits to couples married in states that did recognize same-sex marriage. By 2001, thirty-five states had passed laws limiting marriage to a union of one man and one woman. And all this transpired before a single state had permitted same-sex marriage. The sweeping reaction was almost entirely sparked by the Hawaii court’s preliminary decision in Baehr, which merely suggested that same-sex marriage might eventually be recognized in a single state.10
Meanwhile, the trial court in Hawaii that had initially dismissed the Baehr suit was compelled to consider the case again. Lambda realized, in Wolfson’s words, that “the world had changed,” and it authorized him to join the case as co-counsel. In a ten-day hearing in 1996, the trial court conducted the first-ever evidentiary hearing on marriage equality. Hawaii asserted that it limited marriage to opposite-sex couples to encourage procreation to take place in traditional marriages and to protect children, who it claimed were best raised by heterosexual couples. Plaintiffs’ witnesses refuted both contentions. In December 1996, the trial court ruled that the state’s justifications were insufficient. As for procreation, the court found that people marry for a variety of reasons beyond procreation, and that Hawaii had not shown that recognizing same-sex marriage would have any adverse effect on straight couples’ inclinations to marry. With respect to children, the court concluded that “gay and lesbian parents and same-sex couples can be as fit and loving parents as non-gay men and women and different-sex couples.” Accordingly, it required Hawaii to recognize same-sex marriage on equal terms with opposite-sex marriage, but allowed the status quo to continue pending appeal.11
The plaintiffs, their lawyers, and the gay community at large celebrated the Hawaii trial court decision, the first in the country to declare a right to marriage for same-sex couples. But they knew this was not the end of the battle. The state appealed. And in April 1997, Hawaii’s legislature passed a proposed constitutional amendment, subject to popular approval in a statewide referendum, that would overrule the trial court by specifically authorizing the legislature to limit marriage to unions between a man and a woman. At the same time, to increase prospects for the amendment’s passage, the legislature extended to same-sex couples most of the “reciprocal benefits” associated with marriage. Hawaiians overwhelmingly approved the amendment by 69 percent to 31 percent, and the Hawaii Supreme Court then vacated the trial court decision. In the end, no gay couples were married as a result of the Baehr litigation.12
A replay of sorts followed shortly thereafter in Alaska, when a gay couple filed a parallel suit claiming the right to be married. A trial court ruled for the couple, finding that the state’s law constituted sex discrimination. In short order, however, as in Hawaii, the Alaska legislature and the state’s voters responded by amending the state constitution to limit marriage to a union between a man and a woman, erasing the short-lived judicial victory.13
EVEN WHERE RECOGNITION OF same-sex marriage was temporarily won in court in these cases, it was soon lost in the democratic arena through state constitutional amendments. In some ways the movement was worse off afterwards, as the Baehr decision had inspired adverse legislation across the country. It was plainly not enough to make powerful legal arguments in court. Same-sex marriage would have to be won outside the court as well as inside. It required a political as well as a legal campaign.
- One of Washington Post's Notable Nonfiction Books of 2016
- "[Cole's] narratives weave a compelling portrait of advocacy-driven constitutional change... the collection certainly stands apart from dense and dry legal texts in being readable, accessible and at times even gripping... a deeply hopeful book about an institution in which our hope may be dwindling."—Washington Post
- "Transforms one's understanding of the contributions of other forums-state legislatures, for example, and public opinion (at home and abroad) -- in campaigns that eventually culminate in Supreme Court decisions."—New York Review of Books
- "A fresh and revelatory account of constitutional reform from the bottom up. The book carries a hopeful message: Despite the undue influence wielded by elite institutions, ordinary citizens can and do drive constitutional change...Cole's examples of constitutional reform, on both the left and the right, bear out his claims."—Nation
- "A convincingly argued book."—Dorf on Law
- "Cole's book is compelling, especially in today's climate of gridlock following the death of Supreme Court Justice Antonin Scalia."—Kirkus
"In Engines of Liberty, David Cole turns constitutional law on its head. With his characteristic intelligence and clarity, Cole demonstrates that the law changes from the bottom up, not the top down, and that it is citizens, not judges, who are the ultimate custodians of our nation's laws."
—Jeffrey Toobin, author of The Oath and TheNine
- "Engines of Liberty is a masterful account of how civil society organizations work, and a passionate argument for why they are so important to our democracy. David Cole offers invaluable knowledge and insight about the potential each of us has to shape our nation's laws and public life. My hope is that Engines of Liberty inspires a new generation of activists to rise up and launch their own campaigns for civil liberties."—Anthony D. Romero, Executive Director, AmericanCivil Liberties Union
- "In expertly demonstrating how ordinary people can make a huge difference on defining issues in our nation, David Cole has written an important, inspiring, and essential book!"—Mary Bonauto, Civil Rights Project Director at Gay& Lesbian Advocates & Defenders
- "A skilled human rights practitioner unveils a characteristically thoughtful, balanced anatomy of successful constitutional advocacy, which focuses less on winning court battles than on shaping the popular sentiments that critically drive or obstruct political change."—Harold Hongju Koh, Sterling Professor of International Law, Yale LawSchool
- "No one is better than David Cole at explaining how Americans can fight for civil liberties and civil rights. He is passionate yet careful, accessible yet nuanced, Engines of Liberty wonderfully highlights his intellectual virtues."—Randall Kennedy, Michael R.Klein Professor at Harvard Law School and author of For Discrimination
"Anyone who doubts the ability of Americans to change both policy and law should read David Cole's book. His analysis of how we go about protecting the rights of gun owners is the most accurate I have ever read. This is a must read."
—David Keene, formerpresident of the NRA
"David Cole is one of our most astute and perceptive constitutional commentators. His work is indispensable."
—Robert Post, Dean, Yale Law School
- On Sale
- Mar 29, 2016
- Page Count
- 320 pages
- Basic Books