Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition hit the bookshelves in September. Over the next few weeks, I’ll post about the challenges I faced in writing this book – both methodological and practical. But before I get into any of the details of how I wrote the book, I want to start by telling you what Family Matters is about.
Overview of Family Matters
Family Matters tells the story of a fundamental change in American law. In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples had the fundamental right to marry. Over the span of two generations, advocates transformed American law from a regime that criminalized gay and lesbian relationships to one that recognized and affirmed the dignity of queer families. The fight for marriage equality has received considerable attention from academics and the media – indeed, I have a stack of books on it in my office! However, that campaign was only a small part of the more than half-century struggle for queer family rights. Family Matters uncovers these decades of advocacy, which reshaped the place of same-sex sexuality in American law and society – and ultimately made marriage equality possible.
In this book, I highlight the legal reforms that predated the movement’s focus on marriage, rather than focusing on the fight for marriage equality itself. These changes transformed society, such that advocates could conceive of and pursue marriage rights. More specifically, I argue that changes to criminal codes and family law doctrines allowed same-sex couples to become increasingly open about their sexual orientation. The country consequently came to see gays and lesbians as both partners and parents. Battles to protect the community from hate violence also encouraged the straight mothers and fathers of gays and lesbians to become advocates for queer rights. By making public their love and support for their gay sons and lesbian daughters, these parents highlighted that gays and lesbians were embedded within traditional households not just as parents, but also as children.
The visibility of both types of queer families—the families that gays and lesbians created, as well as their straight families of origin—had a significant effect on the law. These households were consequential because they provided evidence of same-sex sexuality’s ubiquity and projected a new vision of what it meant to be queer, one that was centered on “conventional” domestic life. What this book therefore demonstrates is that “family matters”—issues relating to the family—were essential to the evolution of American law and the rise of queer rights. At the same time, family rights were crucial to members of the gay and lesbian community, for whom family mattered.
Family Matters' Arguments
I attribute the transformation in queer rights to three equally important causes. The first was a dramatic change in law at the state and local levels, where revisions to criminal code provisions and family law doctrines helped to reshape Americans’ perceptions of gays and lesbians. Penal laws during much of the twentieth century defined queer life as a public menace. Police raids on bars, arrests at cruising spots, and prosecutions for same-sex assignations all reinforced the public’s perception of homosexuality as deviant. Criminal law reforms in the last three decades of the twentieth century allowed gay and lesbian couples to interact in public without fear of prosecution. Changes to family law were equally significant. Developments in custody and adoption laws made queer-headed households possible, such that gays and lesbians became visible as parents. Domestic partnership registries, which emerged in the 1980s, revealed that same-sex couples were devoted and committed partners, much like their straight counterparts. Together, these legal changes allowed gays and lesbians to create “conventional” families—nuclear households comprised of caring parents and beloved children.
That a change in national constitutional law stemmed from state and local law is unexpected. For those familiar with legal change, the second source is less surprising: advocates were able to secure radical legal change by appealing to tradition. They self-consciously put forward a limited vision of gay and lesbian life that centered around conventional domesticity and an immutable identity. The movement’s emphasis on conventional households was an accurate representation of the lives of many community members whose legal battles shaped the movement’s trajectory. It was also strategically necessary given the strident opposition that queer rights engendered. However, these arguments also minimized that many gays and lesbians did not fit this norm. Advocates’ focus on families also did not address the most pressing needs of less privileged members of the gay and lesbian community, as well as those who deviated from social convention. Yet their appeal to tradition ultimately proved to be quite subversive, changing how Americans understood both same-sex sexuality and the family.
The third cause for the law’s transformation is more remarkable than national change coming from advocacy at the state and local levels, or a legal revolution deriving from arguments about conformity. As Family Matters shows, the crucial actors behind the transformation of criminal codes and family law doctrine were not just lawyers, legislators, and judges. As often, the central figures were social scientists, business leaders, social workers, police officers, teachers, school board members, and media consultants. These individuals did not necessarily see themselves as agents of legal change. Their efforts nevertheless instigated essential shifts in social perceptions of gays and lesbians, as well as the legal doctrines that shaped their lives. By helping to inspire changes in Americans’ attitudes and law, these non-legal actors helped to make queer family rights possible.
Family Matters is primarily a history of the gay and lesbian rights movement. But it is also more than that. The LGBTQ+ community has made enormous legal strides in a remarkably quick period of time. That is startling, given that the legal system is known for moving at a glacial pace, rather than lightning speed. Judicial decisions all too often deliver hollow victories, rather than meaningful social change. The movement’s history therefore raises an important question: how were advocates able to defy those conventions? At stake in these debates is whether the struggle for queer rights serves a model for the many other groups clamoring for their rights. What I show is that the gay and lesbian rights movement is distinctive, because historical forces beyond advocates’ control often shaped the law’s evolution. At the same time, the movement’s past offers new ways of understanding how reform movements are able to attain consequential legal change. The book’s emphasis on the state and local, as well as the role of non-legal actors and emotional rhetoric, offer keys to understanding the processes of law reform. This book is consequently as important to understanding the systemic manner in which rights become embedded in law and society as it is to understanding the state of the law around same-sex sexuality.
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That’s the broad overview of the book’s main arguments and contributions. Next time, I’ll take up the first challenge I had to address in writing the book: how to tell a national story from legal developments at the state and local levels.
