Notwithstanding a generation or more of litigation in the state and federal courts in the areas of antidiscrimination, adoption, custody, marriage, and relationships, in Gay Families and the Courts, Susan Gluck Mezey argues that the scholarly consideration of lesbian and gay rights has largely failed to situate the effects of these cases collectively on the social position of gay families. Gay families are defined as “a family in which an adult or child is gay” (p. 2). This focus on the role of law in redefining gay families—as constituted by the fact of being parents or children, rather than being simply gay—is consistent with the work by Nancy Polikoff on the struggles of gay individuals and couples to construct families via adoption and custody (e.g., Beyond (Straight and Gay) Marriage: Valuing All Families under the Law, 2009). As a corollary, Mezey is interested in assessing the effectiveness of litigation as a strategy for advancing the goals of the movements for lesbian and gay rights. She examines cases in four primary areas: parenting, same-sex marriage, discrimination in schools, and the ability to participate in private organizations.

The advantage of books on this topic at this time, as opposed to the slew of books on lesbian and gay rights that appeared in the early 1990s, lies in the expansive range of legal areas litigated and sheer number of lesbian and gay rights' cases that state and federal courts at all levels have ruled upon over the last 40 years. This has generated greater degrees of freedom, which, in turn, permit a more nuanced political analysis of the relevant movements and their tactics. Moreover, scholars now have the luxury of placing these cases into a context that accounts for both time and institutional position in understanding the dynamic relationship of courts to legislative action and the effects of litigation on movements. For example, Mezey invokes 24 court decisions in adoption, 36 in same-sex marriage, 31 in antidiscrimination related to school settings, and 9 courts decisions related to the Boy Scouts case. And the book tracks many of these cases from initiation through court ruling to the subsequent legislative or popular response.

On a theoretical level, the book borrows in part from Gary Mucciaroni (Same Sex, Different Politics: Success and Failure in the Struggles over Gay Rights, 2008) on the markers for success in lesbian and gay rights. Mezey directly responds to Mucciaroni's theories by explicitly addressing the role of the types of cases and the type of court in determining the likelihood of success in the four areas she considers.

Mezey is interested in adding her own theoretical contribution to the mix, however. She argues that the prime determinant of litigation's success at any stage is the approach to legislatures, and consequently to the legislation they promulgate, adopted by each court: “the extent to which courts act as coordinate or subordinate policymakers, that is, the degree to which they exert their influence over public policymaking by overriding law and policies arising out of the legislative or the executive branches or through popular referenda” (p. 5). She proposes that the framework of judicial scrutiny adopted by federal courts and most state courts, as well as the alternatives that occur in statutory interpretation, create choices that can be used to identify each court's preference in terms of a role to be adopted in relation to the legislature.

Mezey is correct to claim that the key to understanding the role of litigation in lesbian and gay rights over the last 40 years is to disaggregate the relationship among movements, legislatures, courts, and popular referenda. Her carefully researched histories of the interplay of these actors make for interesting reading, and also move the public law field beyond a simple focus on constitutional law. Understanding constitutionality per se has little meaning in an area in which the relevant constitutional provisions—as in the equivalent of equal protection clauses or free expression clauses—have almost universally remained static, even as the interpretations offered to them have occasionally shifted to incorporate aspects of lesbian and gay rights. The constitutional claims of the unsuccessful cases of the 1970s relied on almost the same clauses as their more successful counterparts in the 2000s. And Mezey moves the field beyond simple definitions of individual judicial attitudes. Instead, this work is situated with the emerging scholarship on courts by authors like George Lovell (Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy, 2003) that identifies the actions of courts as occurring in a dynamic, usually unstated, interaction with legislators and the activists from social movements. The meaning of law, and subsequently the standing given to gay families, emerges from a collective understanding that is negotiated over time among these various actors and institutions.

Still, there are problems in this book. Movements are treated as static in the goals they seek for litigation at all stages of the development of the movement. Yet the goals of even near-identical litigation in the same location can differ widely depending on the stage of the development of the movement (see Scott Barclay and Shauna Fisher, “Cause Lawyers and Social Movements, Failure and Success: Comparing the Two Waves of Same Sex Marriage Litigation,” in Austin Sarat and Stuart Scheingold, eds., Cause Lawyers and Social Movements, 2006) . Further, the disadvantage of aggregating cases from four areas to give an overview of gay families is that it has subsumed the degree to which different areas of litigation emerged at specific times in response, in part, to different theoretical approaches that gained resonance in the movements or in the public.

Likely because of her earlier book (Susan Gluck Mezey, Queers in Court: Gay Rights Law and Public Policy, 2007), Mezey in her current book is also less willing to engage the fact that these areas of law, and the way they are addressed by courts, turn often on a divergent incorporation of sex and sexuality. Lesbians and gays are most successful in those cases—adoption, custody, and even same-sex marriage—where sex and sexuality are largely removed from the discussion. Until recently, these relationships garnered greater support if courts could find a way to construct their definition as dependent only on the relationship (of money, or of proximity, or of genealogy, or occasionally the most legally amorphous of all, of love). Accordingly, the very complexities of sex and sexualities were purposely absented from the legal consideration.

Overall, Mezey is best at documenting the complex interplay of actors and institutions around legal definitions. Her work is much less satisfying when it comes to disentangling the actual source for the supposed divergent directions that courts adopt in relation to legislatures in these areas of law. Is it simply an artifact of each court's own historical relationship, a path-dependent product of the constitutional reasoning and forms of statutory interpretation that the particular courts have adopted to date, the accumulation of the judicial approaches of the individual judges on each court, or a product of judicial wariness by judges in a vulnerable institution at a time of heated political rhetoric? Mezey offers only tantalizing hints on the possibility of each of these aspects as the source.

Nevertheless, this book offers an important attempt to draw together the many lesbian and gay rights' cases into a more coherent picture of how they have collectively shaped public policy on gay families. And it lays out a concise and clear picture of the twists and turns to date in this still unfolding history.