If one assesses the maturity, as well as legitimacy, of a field of study through the scholarship that it produces, these two excellent books—one by an established scholar (David A. J. Richards) and the other by a relative newcomer (Jason Pierceson)—show just how far gay rights, as a field of scholarly inquiry, has come in the last few decades. Both books provide compelling arguments on behalf of the view that liberal political theory, when coupled with vigorous judicial review, can provide previously marginalized groups, like sexual minorities, with meaningful rights of equality and autonomy.

Richards's book is the more explicitly personal of the two, as he introduces The Case for Gay Rights with a brief autobiographical chapter describing his struggle as a young gay man, in the 1960s and 1970s, to find an ethical voice. As Richards tells it, his effort to find an ethical voice in his personal life, as he coped with his sexual orientation while living in a largely homophobic society, mirrored his struggle to find an ethical voice in his academic work, first in philosophy and then in law, which sought to argue on behalf of basic human rights for lesbians and gay men.

The use of personal narrative in an academic book raises the possibility that some might dismiss the scholarly arguments contained therein as nothing more than dressed-up personal polemics. But there is nothing of the kind here. In part, this is because the main focus of the book is not autobiography, but is instead the link among personal, philosophical, legal, and psychological analyses of the fundamental injustice that inheres in the treating of lesbians and gay men as second-class citizens. It is also because Richards is utterly convincing in analogizing between his efforts to find a mature ethical voice living as an openly gay person in a loving relationship with another man and his efforts to find such a voice in his intellectual and academic pursuits.

The primary focus of the book is on the ways in which the U.S. Supreme Court has slowly but steadily interpreted constitutional provisions and values in ways that have provided greater equality and personal freedom for lesbians and gay men. As Richards notes, it all began, shortly after World War II, with the Court's expansion of constitutional principles of free speech to further protect political activism and to narrow the definition of obscene speech. This provided lesbians and gay men, as individuals and as members of an emerging community, the space necessary to develop voices of their own. It also, crucially, gave them the opportunity to join their voices with those of other minorities who were seeking to free themselves from the chains of prejudice as codified into law. The author repeatedly returns to the basic irrationality of social prejudices (what he deems “moral slavery”), whether they be expressed in terms of racism, anti-Semitism, sexism, or homophobia. The same constitutional principles that have made it more difficult to advance the first three prejudices through public policies are now doing important work in lessening the harmful effects of government-sponsored homophobia.

In many ways, the fundamental shift in the Supreme Court's jurisprudence took place during the 17 years that elapsed between its upholding of sodomy laws in Bowers v. Hardwick (1986) and its reversal in Lawrence v. Texas (2003). So long as Bowers remained good law, that is, so long as the state had the constitutional authority to penalize lesbians and gay men for the most personal of choices in their intimate lives, there was no possibility that their basic human dignity would be accorded social respect. In many ways, the Court in Lawrence adopted the position that Richards had been advocating for many years, namely, that the state, as a matter of constitutional law, must respect the relationships and personal lives of lesbians and gay men.

Richards ends the book by placing the legal story of gay rights in a broader context that looks at the psychological question of why repressed voices sometimes seek to resist. Here, he returns to his own life, hypothesizing that his mature ethical voice is rooted in the voices of his parents, in particular his mother, who was a feminist “in practice though not in theory” (p. 148). He then suggests that other men, such as Tolstoy, Gandhi, and King, also gave ethical weight to the voices of their mothers by questioning “the role of manhood in rationalizing forms of political violence … and the many forms of structural injustice that depend on such violence” (p. 153).

Richards's hypothesis about the role of mothers in the development of their sons' ethical voices is interesting, though it is clearly not universally applicable. There are many men (and women), after all, who have developed such voices despite (rather than because) of their parents' views on questions of gender and sexism. It would also be interesting to take the author's hypothesis one step further by exploring the role that the growing number of lesbian and gay parents may play in the development of the ethical voices of their children, given that they must both “mother” and “father” those children.

While Richards's book is in some ways more ambitious than Pierceson's because the former seeks to place the legal story of gay rights in a broader personal and psychological context, the latter is nonetheless just as successful. Pierceson's main objective in Courts, Liberalism, and Rights is to counter the view, which has become somewhat fashionable in both political science and legal academic circles, that courts in the United States have played a relatively minor role in the advancement of social reform. In the past, those who have sought to minimize the role of courts in effecting social change have rarely addressed gay rights issues; going forward, however, proponents of that view will have to address the persuasive evidence set forth by Pierceson regarding how gay rights litigation has been instrumental in moving the American society toward a greater tolerance and acceptance of those with a same-sex sexual orientation.

Pierceson points to litigation involving sodomy laws (in both federal and state courts) and same-sex marriage to explain how the cases not only have provided victories to many lesbian and gay litigants but have also had positive spillover effects in the political arena. The principal effect of the cases has been to help frame the political debates over gay rights around issues of basic equality and fairness. In the particular context of the legal recognition of same-sex relationships, Pierceson notes that the same-sex marriage litigation in Hawaii and Vermont, which eventually led to a reciprocal benefits law in the former and civil unions in the latter, “resulted in a discussion of lesbian and gay civil rights that demanded a consideration of equality…. Without the legal arguments and decisions to frame this debate, it can be argued that only arguments based on tradition and the desire to preserve the institution of marriage would have had any salience” (p. 192).

As Pierceson notes, a majority of Americans today support civil unions for lesbians and gay men. What was to many, only a few years ago, a radical idea—that lesbians and gay men should have the same rights and benefits afforded to married couples under state law, albeit under the auspices of an alternative legal regime—is now supported by a majority of citizens and many elected officials. As this author persuasively shows, it is exceedingly unlikely that civil unions would have the support of so many Americans today but for the ability of the same-sex marriage litigation to place the issue of the lack of legal recognition of lesbian and gay relationships squarely before the American public. The political debate in many (though clearly not all) states is no longer whether same-sex relationships deserve legal recognition; instead, the debate is about what type of legal recognition they deserve.

For most of the book, Pierceson seeks to establish the link between, on the one hand, litigation strategies and arguments in gay rights cases and, on the other hand, political gains for lesbians and gay men in the United States. (There is also a brief chapter on Canada that serves as a useful introduction but is not meant to be comprehensive; a reader who wants to delve into the details of the political impact of gay rights judicial opinions in Canada will have to look elsewhere.) Pierceson, however, also dedicates two chapters to more theoretical questions that seek, in part, to defend a conception of liberalism that concerns itself not only with protecting individuals from the state but also with the rights to positive freedoms that impose affirmative obligations on the state to recognize and support, for example, the relationships and families of lesbians and gay men.

The two books could be criticized for focusing so intently on both liberalism and individual rights as enforced by the courts. The emphasis is justified, however, because as Richards and Pierceson compellingly show, the combination of liberal values and judicially enforced rights has produced remarkable gains in the United States for lesbians and gay men in a relatively short period of time. It is perhaps for this reason that at the end of the day, the vast majority of those who support the personal and political aspirations of lesbians and gay men, as well as of bisexuals and transgendered individuals, return to some form of liberalism in fashioning their arguments. In fact, even postmodernist queer theorists rely to a certain extent on the libertarian view that the state should not interfere with the consensual acts of individuals so long as others are not harmed. As Pierceson aptly puts it, when it comes to gay issues, “[t]he liberal paradigm appears hard to escape” (p. 42).