As I mentioned in my first post, Family Matters provides a history of law reform across the United States. But it doesn’t do so by examining federal constitutional arguments or Congressional enactments. Instead, it examines law from the ground up. It focuses on reforms at the state and municipal levels, weaving them together to explain the transformation of American law writ large.
In this post, I’ll explain the book’s methodological innovation, which is essential to its account of legal change. I’ll also discuss the research challenges this approach created—as well as how I addressed them.
Focus on the State and Local
In Family Matters, I show that the impetus for national law reform came from scattered parts of the country. By working at the local level, small groups of motivated citizens were able to secure legal changes that would have been unthinkable in other parts of the nation. Many of the debates over and gay and lesbian rights took place in liberal cities like Los Angeles, New York City, and San Francisco. However, municipalities across America responded to these developments, which queer rights advocates—and their opponents—brought to local officials’ attention. Sometimes they did so with sympathetic laws that mirrored the actions on the coasts. Just as frequently, however, elected officials enacted legislation or policies that demonstrated their hostility to gay and lesbian rights. Yet even in the face of this resistance, successes at the state and local levels undermined conservatives’ strident opposition. These developments allowed for small scale experiments that made unthreatening queer families more visible. The conspicuous existence of these households, in turn, generated legal, political, and constitutional change at the national level. In other words, it was not that decisions in progressive enclaves represented national trends, but rather that they provided the foundation for widespread change.
By examining seemingly disparate locales and areas of the law, Family Matters demonstrates how they are integrally related, each forming a piece of a larger puzzle. What I reveal is that the causes of change in constitutional law and national policy often came from outside of the capital. Moreover, the impetus for change also frequently originated outside of the courts, where state legislative enactments and municipal administrative decisions often had little to do with the Constitution’s protections. Focusing on state and local advocacy efforts, as well as the links between them, demonstrates how many small shifts in discourse can make national change possible. As a result, the book showcases a broader array of legal experiments and experiences than analyzing federal developments alone.
Conducting the Research
Crafting this narrative required piecing together archival fragments and combining them with a range of other sources. Much of the information in this book comes from the records of gay and lesbian rights organizations, whose newsletters, memos, press releases, and other materials memorialized their work. Movement leaders, advocates, and community members also preserved pamphlets, fliers, speeches, and other documents that contained crucial details and revealed connections between events in various parts of the country. I gathered this information together, traveling to archives around the country thanks to very generous grants, including two from the William Nelson Cromwell Foundation. (Junior scholars: definitely apply for these!)
Once I had the primary sources, I began putting together the puzzle pieces in several different ways. For each chapter, I created three types of documents. The first was a standard word file, in which I put notes on the primary sources. That document allowed me to quickly look up the details of events. The second was a spreadsheet, which contained some of the high-level information from the sources. For example, for my chapter on child custody cases, I created a document on the custody disputes, which contained entries for the parties’ names, date, state, geographic region, court level, outcome, attorneys, amicus brief authors, and main arguments. This spreadsheet helped me identify trends over time, as I could sort it by date, location, and outcome. (Pro tip: excel allows you to sort your data by highlight color, so I often found myself color-coding the data in different ways to make the trends easier to see.) The third was a timeline, so I could see how the various types of legal advocacy—cases, legislation, administrative regulations, business policies—intersected.
That was step one. From this information, I knew what gay and lesbian rights groups had preserved—but that was unlikely to be a comprehensive account. As a result, I had to keep hunting. Step two was a general database search for the topics, to uncover additional evidence. That often yielded another few cases, statutes, or policies. Step three was more time-consuming. In the word file summarizing the sources, I noted references to people and places. If I didn’t have sources on them, I tried to track down those individuals and events, which I did through newspaper and magazine searches, as well as oral history interviews. I followed the breadcrumbs until I could not find any new references. That does not mean that I necessarily discovered all of the events, but it did make me confident that I had uncovered most of them.
The book’s chapter on domestic partnership programs in the 1980s is a good example of how that work paid off. These programs began as benefits for municipal employees in the early 1980s, before becoming a common option at Fortune 500 companies. The municipal offerings are often discounted as irrelevant, because the programs few and far between. However, I show that they were actually extremely consequential. Until these companies began offering domestic partnership benefits, no institution recognized same-sex couples’ relationships. Moreover, since these came from municipal governments, the programs opened the door to other claims for state relationship recognition. Finally, the municipal offerings inspired employees in the private sector to demand similar benefits. The end result was that large corporations began offering domestic partner programs. I could make that argument because I could trace the through lines that connected the people and events. Employees for large corporations cited the municipal programs and used them to urge their employers to offer similar benefits. They used data from the cities and counties to convince human resources personnel. The people involved in advocating for these programs spoke to one another, sharing information and insights.
I imagine you’re reading this and thinking: telling a national story from events at the local level sounds incredibly time-consuming. It is. The amount of time the research consumed was one of the biggest challenges in writing this book. In a later post, I’ll talk about how I wrote the book while on the tenure clock, which added another layer of difficulty to the project. But I think the payoff was worth the effort—and I hope that readers agree.
Before I open the can of worms that is tenure, I want to address a different challenge. Family Matters is a legal history, but it ends with a court case from 2015 and details legal debates that are still very much live. In my next post, I’ll take up the issue of the costs and benefits of writing a history of the present.
