The landscape of marriage in the United States is changing yet again, driven this time by tensions over the rights of same-sex couples to marry. States across the nation have revisited their laws in recent years to clarify the legal rights and responsibilities of same-sex couples, with widely divergent outcomes. Massachusetts permits same-sex couples to marry, currently the only state to do so. Six other states grant same-sex couples all the state-level rights and benefits of marriage, typically under the name of civil unions. On the flip side, 26 states have amended their constitutions expressly to limit marriage to opposite-sex couples; 17 also bar the establishment or recognition of alternative legal regimes designed to give the substantive rights of marriage to same-sex couples. One additional state, Hawaii, amended its constitution to give the state's legislature the sole ability to decide who may marry, a move that successfully derailed a constitutional challenge to the state's existing marriage regime. The federal government has also gotten into the game. The 1996 Defense of Marriage Act (DOMA) limits marriage to opposite-sex couples for all federal purposes and authorizes states to opt out of recognizing same-sex marriages validly performed in other jurisdictions.

The result is a fascinating and unstable moment in American history. Dan Pinello and Andrew Koppelman have both written highly readable and engaging books that probe its contours in complementary ways. Pinello is interested in how the United States got to this moment, exploring the emergence and progress of the movement for marriage equality in the United States. Koppelman is interested in where we go from here, laying out a plan for how Americans who are “irreconcilably divided in their opinions” (p. xiii) can get along. Along the way, both grapple with the multiple meanings of marriage, the role and impact of courts in mediating divisive social conflicts, and the impact of federalism on the development and dissemination of public policy.

Of the two books, Same Sex, Different States is the more ambitious. Koppelman's goal is to answer the following question: How should courts in states that do not recognize same-sex marriage deal with such marriages (or civil unions) when they are validly contracted out of state? This issue is likely to crop up more and more frequently in the near future as same-sex spouses cross state lines for a variety of reasons.

Koppelman's broader goal is to de-escalate the raging moral conflict over marriage equality by proposing an administrative solution to a normative question. As he notes, the fear that states will be forced to recognize out-of-state marriages between same-sex couples despite their own policies to the contrary has driven many public policy shifts, including the passage of DOMA on the federal level and constitutional bans on same-sex marriage in many states. His book proposes an eminently sensible set of recognition guidelines based on principles of federalism as embodied in choice-of-law doctrines. These guidelines will, he argues, offer “security against the wholesale importation of institutions they find morally repugnant” for people who oppose same-sex marriage (p. xviii) while providing lesbians and gay men with interstate transportability for at least some of the rights and protections that come from marriage.

Choice-of-law doctrines, which govern how courts should handle cases involving the laws of more than one jurisdiction, can be quite complicated. Fortunately, there is ample precedent to draw on in the context of marriage, because states have held radically different policies about close-kin, youthful, and interracial marriages. Koppelman draws most heavily on cases involving interstate recognition of interracial marriages, both because of their relative frequency and because of the moral outrage we now feel about laws enforcing principles of white hegemony. As Koppelman sees it, this outrage is useful: Moral disapprobation of same-sex relationships is certainly no greater than it was for interracial relationships, and so states ought to be able to manage “at least the minimal level of decency and mutual respect that existed in the awful years of legalized racism” (p. 49).

Koppelman divides the body of case law dealing with interracial marriage recognition into four categories: evasion, migration, visitation, and extraterritoriality. Evasion cases involve interracial couples who marry in another state in order to evade their home state's antimiscegenation law, and then return home demanding recognition of their marriage. These are the interstate marriage fears most frequently articulated by opponents of marriage equality, and Koppelman argues that those fears are groundless. Judges in states with antimiscegenation laws always invalidated these marriages, employing the choice-of-law principle of domicile: States have the authority to govern the actions of their own residents.

Migration cases are trickier because they more clearly necessitate balancing the rights of citizens in one state to run it as they see fit against the rights of a couple to keep their marriage from winking out of existence the moment they cross state lines. Judges handling interracial migration cases came to divergent conclusions, but Koppelman shows that the cases can be read coherently by using an incidents-based approach to marriage: Disaggregating marriage into the various legal benefits and responsibilities, it provides and determines which specific incidents should be recognized by another state. Marriage in this view is not an all-or-nothing status. It is a compilation of hundreds of specific legal rights and duties, and it is perfectly acceptable for states to recognize some incidents of marriage and not others in the context of migrating same-sex couples. After a careful review of legal precedents, Koppelman argues that states dealing with migrating couples should recognize any marital incidents that can be recharacterized as nonmarital, such as financial duties and responsibilities related to children, but that they are not required to recognize marriages in their entirety. Thus, couples can become simultaneously married and unmarried when they move to another state, depending on the specific incident of marriage in question.

Koppelman takes a different view of cases involving couples visiting a state, rather than moving to it. In these instances, he argues, the federal constitutional right to travel overrides the interests of the forum state. Marriages of visitors passing through should always be recognized, for all purposes. The same holds true for extraterritorial marriages. In these cases, couples have never lived in the nonrecognition state. The status of their relationship merely comes into question during the course of litigation, such as when one spouse dies and the other seeks to inherit property located in the forum state. In these cases, marriages were routinely upheld in the context of interracial marriages and should be upheld as well in the context of same-sex ones.

Koppelman's book is really a remarkable achievement. In a slim volume, he lays out the history of the current struggle over same-sex marriage, explains the legal rules governing marriage recognition, and shows how courts can craft sensible and reasonable solutions to questions that implicate divisive social conflicts, providing a temporary equilibrium that balances valid concerns about territorial and familial sovereignty. As a bonus, the prose is so clear and vivid that its audience will extend far beyond the legal community. The author illustrates all of his points with real-world stories of people facing specific legal problems involving interstate recognition of their marriages, occasioned by custody disputes, divorce, medical emergencies during travel, inheritance, and so on, making it easy for laypeople to grasp the import of his claims. It can usefully be assigned in graduate and advanced-undergraduate courses examining the relationship between law and public policy and should be required reading for all serious students of same-sex marriage.

Pinello's book shares several features in common with Koppelman's. Both authors examine the varied ways that states have dealt with the issue of same-sex marriage and contemplate the role of states in the federal system. Both carefully lay out the competing claims of the pro- and anti-same-sex marriage camps, although Pinello is ultimately much less sympathetic to opponents' claims than is Koppelman. Both make extensive use of real-life stories to give their narratives immediacy and an emotional wallop. And both are convinced that courts have an important role to play in divisive social conflicts.

Yet while Koppelman emphasizes the ways that courts can defuse conflicts by finding areas of consensus, Pinello is more concerned with the capacity of courts to effect progressive social reform. They are also strikingly different in their intended audiences, however. America's Struggle for Same-Sex Marriage is not designed to appeal to serious scholars of law and public policy in the way that Koppelman's book is. Pinello's work is journalistic, rather than analytical. Read in those terms, however, Pinello crafts a fascinating account of a critical year in the evolution of the marriage equality movement in the United States.

In 2004, Massachusetts embraced full marriage equality for same-sex couples. That same year, local officials in five other states (California, New Jersey, New Mexico, New York, and Oregon) also began issuing marriage licenses to same-sex couples, notwithstanding state laws to the contrary. Pinello uses in-depth interviews to illuminate the sequence of events leading to the issuance of these marriage licenses and the political controversies that followed, with particular emphasis on Massachusetts, California, and Oregon, the three states that issued the lion's share of licenses (about 13,000 in all).

These interviews are the signal strength of the book. Extended first-person narratives from legislators, county officials, and interest group leaders in each of the three locations provide a “top-down” account of how elite actors variously employ legal, legislative, and electoral tactics to advance their policy aims. Interviews with 50 same-sex couples who married in Massachusetts, California, and Oregon during 2004 provide a counterbalancing “bottom-up” perspective that illustrates the multiple meanings—emotional, cultural, religious, political, and legal—of marriage in the United States today. The narratives are continually compelling, whether they describe the experiences of same-sex couples who grabbed a brief opportunity to marry, city clerks suddenly inundated with marriage license applications, or religious activists working to maintain the traditional gender boundaries of marriage. Moreover, they are virtually guaranteed to prompt vigorous discussions in undergraduate classrooms, because the interviewees disagree about the meaning of marriage, the role of religious in American society, the relationship of gay rights to civil rights, the role of courts, and the appropriate functions of federal, state, and local governments in American society.

Pinello's stated goal is to use the interviews as a way to study the role and impact of courts in a democratic society, the participation and impact of interest groups in a pluralistic polity, and the sources of, and political responsiveness to, policy initiatives in American government (pp. 30–32). These themes and more can be pulled from the text, making it a useful read for a wide variety of courses, because the book can prompt discussions about so many different facets of American politics, in addition to its obvious utility as a primer on a major civil rights issue.