In 2008, same-sex marriage was legalized by the high courts of California and Connecticut, but California voters soon amended their constitution to define marriage as solely a bond between a man and a woman. The Connecticut ruling has endured. Given this difference, Robert J. Hume seeks to explain why some state court decisions achieve greater impact than others. Hume develops a theoretical framework and employs rigorous tests to bolster his central argument: The more democratic a state’s court and constitutional systems are, the less likely judges will be to expand minority rights. While readers may quibble with aspects of the author’s theory or quantitative analysis, the book’s main shortcomings concern larger issues. Courthouse Democracy and Minority Rights often does not leverage history to reinforce findings, and it does not systematically examine how state courts affect national struggles to expand rights. Still, the book should be of interest to graduate students and scholars researching lesbian, gay, bisexual, and transgender issues, minority rights, public law, and political change.

Hume argues that the levels of democratization in states profoundly influence the impact of policy development by the judiciary. Put simply, the more influence the public has over the retention of judges or the amendment of state constitutions, the less likely that courts will rule for minorities or that such rulings will survive. He separates the process into three stages: initiation, when litigants press cases and courts rule; legitimation, when the public weighs the rulings; and endurance, when opponents may try to undo decisions. This division reflects the complexity of the process, and it allows Hume to test whether different variables affect each phase differently.

Two general flaws may distract the reader. One is that while the subtitle labels same-sex marriage an issue of minority rights, Hume most often refers to it as “morality policy,” comparable to abortion. While minority rights and morality policy overlap, they are not the same, and he should have made an explicit argument for the kind of issue that he believes marriage equality to be. In addition, he devotes nearly 20% of the book to recounting the fight for marriage equality in the United States, but he does not relate it to his theory. This narrative is interesting, but the historical information could have been used more analytically, to further test his important findings.

In the most thorough chapter, Hume determines factors central to the initiation of judge-led policy. He first compares the 12 states whose high courts have decided marriage cases, focusing on the permissiveness of judicial institutions—those where judges are relatively insulated from voters and whose constitutions are older and include equal-rights amendments—and the liberalism of the state’s political environment. All courts in permissive and liberal states ruled for same-sex marriage or civil unions, while only some in states with semipermissive institutions and moderate political cultures did so. Courts in conservative states or those with restrictive features ruled against.

In another test, Hume identifies the key variables influencing whether activists introduce cases into a state judiciary and whether judges rule for same-sex marriage. He shows that the ideology of a state’s residents and its institutions, and the reputation and the ideology of the high court, correlate with the introduction of lawsuits. However, resident and institutional ideologies do not correlate with rulings in favor of marriage equality. Instead, such positive decisions are driven not only by the court’s ideology and reputation but also by whether residents are prevented from voting for judges. Unfortunately, these tests exclude most states—those that have had no marriage cases. While there are questions as to how effectively we can study nondecisions, it would be useful to identify factors that are likely to deter potential litigants. This could be done with a combination of quantitative data and activists’ interviews or memoirs. Still, the findings back up Hume’s overall argument.

The author does provide one finding that is both illuminating and contrary to his state-level focus. The first court decisions were made by unelected judges, while states with elected judges received cases later—and in those states, the first three courts to get cases ruled against equality, while the next two ruled in favor. But he does not integrate the implications of this apparent cross-state influence into his theoretical framework.

The two succeeding chapters demonstrate that different combinations of these variables are in play during the legitimation and endurance phases. To demonstrate the effect of democratization on legitimation, Hume creates a series of tests, including a survey experiment, to measure people’s trust in state institutions. His most important finding is that residents of states where voters elect judges are less likely to accept court rulings on morality policies than are those of states where judges are more insulated. Residents who elect the judiciary see judges as no better than other politicians.

One weakness of the argument is that Hume’s tests on legitimation are hypothetical, excluding people from states that had already ruled on the issue. He does this to keep the data consistent, but it would have been useful to see how his hypothetical findings match the historical record. How has public opinion shifted after court decisions, and why did it sometimes rebound (as it did after the ruling for marriage equality in Massachusetts)? Such a historical analysis could also have taken into account whether activists employed educational efforts alongside court battles to mitigate negative public reaction.

Hume’s sole test of endurance lies in an event history analysis of state constitutional amendments prohibiting same-sex marriage. The results indicate that several attributes correlate with amendments, including the professionalization and reputation of high courts, and whether courts have ruled in favor of marriage equality. Perhaps most important, the author finds that if a state allows its constitution to be amended through public initiative, there is a high likelihood that it will ban gay marriage.

Still, two variables suggest that state processes are not isolated. According to Hume, passage of amendments correlates with the presidential election year and whether nearby states have acted similarly. Indeed, as he mentions but does not closely analyze, most anti-marriage amendments were passed between 2004 and 2008—largely in conservative regions, many in reaction to Massachusetts, some for partisan gain. The state-level focus reduces potential insights into the influence of state courts on national politics, and vice versa.

Overall, Hume makes a compelling case that democratization of state court systems inhibits minority rights, but his systematic exclusion of cross-border and federal processes restricts the study’s utility. This can be seen in his initial puzzle. Why did Connecticut’s marriage ruling endure and California’s fail? He suggests at least two differences: Connecticut insulates judges and does not amend its constitution through initiative. But that was not the end. Before this book was published, a combination of state and national factors had undermined California’s constitutional amendment. First, activists and outsiders fought the amendment. Next, the state’s governors, Republican and Democrat, refused to defend Proposition 8. Finally, federal courts struck it down. Between this example and some of Hume’s findings, we have the potential for a more expansive theory about how state courts affect national struggles and how U.S. politics influences state courts. Hume treats this only fleetingly in his conclusion.