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Michael Boucai, Glorious Precedents: When Gay Marriage Was Radical, 27 Yale J.L. & Human. 101 (2015).

Michael Boucai’s new article, Glorious Precedents: When Gay Marriage was Radical, explores same-sex marriage in an era when “gay liberation” rather than “gay rights” described the aspirations of a movement aimed at revolutionizing American life. Through detailed archival and interview based research, Boucai offers a delightful recounting of the first three cases to produce reported judicial opinions denying gay marriage in the United States: Baker v Nelson, Jones v Hallahan, and Singer v Hara (all of which were decided in the early 1970s). His unfolding of marriage litigation in the post-Stonewall years captures the historical texture of these initiatives and the individuals that commenced them, but more importantly it reveals an account of the pursuit of gay marriage and its radical potential that differs significantly from the same sex marriage movement in its contemporary form.

According to Boucai, despite criticisms of the same sex marriage movement as assimilating for sexual minorities and reifying of problematic social institutions, these first cases were much more about gay liberation generally than gay marriage specifically. His documentation of the stated ambitions of the three couples, the legal arguments advanced by their lawyers, and details of the sexual and domestic lifestyles and the activist activities engaged in by many of the litigants persuasively disrupts the dominant account of early marriage litigation as out of step with the radical spirit of gay liberation at the time. Interestingly, Boucai’s account re-politicizes the litigant couples – as couples – by, in part, desexualizing them. For two of the couples, theirs was neither a story of romantic love, nor even a story of notable sexual attraction. Rather, it was coupledom based on political aspirations, friendship, and shared worldviews. For them the litigation – which everyone accepted “stood no chance of winning” – was rooted not in a desire to marry, nor a desire for state sanction and recognition of the value of their love and affinity for one another, but in efforts to challenge the gendered oppression perpetuated by the institution of marriage and to perform their same sex relationships in public and confrontational ways.

Part I of the article offers a review of the gay liberation movement in the early 1970s. Boucai highlights the movement’s focus during this period on not only gay equality but also on sexual freedom, disruption of class oppression and perhaps most importantly, challenges to gender roles, patriarchy, and sexism. The article proceeds, in Part II, to provide a detailed description of the plaintiffs, their commitment to the objectives of the gay liberation movement, and the context of the relationships for which these marriage licences were sought. Integrated into the stories of these couples are the legal arguments advanced by their lawyers. Boucai’s accessible writing and judiciously selected detail makes Part II a welcoming and fascinating read. Part III draws the connections between the lives and pursuits of these three couples and the aims and activities of the gay liberation movement at the time. Glorious Precedents readily reveals both the role of litigation, even that destined to fail, in social movements and the way in which the same legal strategy, or litigation target, can be motivated by very different aims depending on the era and context.

Here is something in particular that I liked (lots) about this article. Perhaps in the vein of Dale Carpenter’s telling of the story of Lawrence v Texas, Boucai embraces the messy facts that underlie these cases. He does not shy away from the discrepancies and inconsistencies between how these couples understood their project or engaged in their relationships. Instead, he allows the complexity of these stories to unfold as they do. The result is a compelling and vivid account of marriage litigation in the era of gay liberation – one which reveals as much about the scope of the intentions and achievements of its participants as it does about the limited horizons of those fighting for the right to same sex marriage today.

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Cite as: Elaine Craig, A Queer Story of Same Sex Marriage, JOTWELL (February 17, 2015) (reviewing Michael Boucai, Glorious Precedents: When Gay Marriage Was Radical, 27 Yale J.L. & Human. 101 (2015)),