The twenty-first century has been a time of exceptionally rapid change in the social status of gays and lesbians in the United States. This change has been contested and reflected in the legal field, where within 12 years the law's regard of same-sex relations has shifted from criminalization to legalization. In Discourse, Identity, and Social Change in the Marriage Equality Debates, Karen Tracey tracks how this shift occurred in debates regarding same-sex marriage in Supreme Court and legislative hearings between 2003 and 2013. She delivers a thorough empirical account of how law was made and interpreted through discursive processes, and how it was through these processes that changing social values infiltrated law and transformed it from the inside-out.
Tracey illustrates how law emerges through discursive struggle, the parameters of which are both structured and shifting. At the beginning of Parts One and Two, she describes how Supreme Court oral argument and legislative hearings respectively can be understood as kinds of genre. This sets up an analytic framework for subsequent chapters, allowing Tracey to identify how different sets of rhetorical techniques and discursive structures have shaped same-sex marriage debates between genres and at different points in time.
Identity-work is a focal point throughout. In Chapter 2, Tracey shows how the naming practices used to signify plaintiffs in oral argument indicated a speaker's political stance toward same-sex marriage. Therein, she charts how different “person-referencing terms” implied different ideological strategies: pro-plaintiff attorneys, for instance, were more likely to use the term “gay” than “homosexual” because the former refers to a category of person rather than an individual. In Chapters 3 and 4, she examines judges’ questioning practices and judicial opinions, identifying a set of rhetorical techniques that judges use to represent themselves as just and correct. In Chapter 6, Tracey shows that when citizen-testifiers brought religious discourse into legislative hearings, they deployed particular discursive strategies to frame their speaking position as moral and therefore legitimize their ideological stance. These discursive practices, Tracey argues, are all modes of strategic identity-work oriented toward establishing a preceding ideological position. Judges engaged in identity-work to enact themselves as “administrators of justice.” Attorneys engaged in identity-work to enact a conception of same-sex relations that supported their ideological objective. Citizen-testifiers engaged in identity-work to enact themselves as moral and reasonable.
One of the key ways Tracey accounts for the impact of social change on marriage law is through her analysis of identities as achieved rather than given, and therefore as dependent on the discursive process that gives rise to them. Tracey makes this point clearly in Chapter 8 by tracking how proponents and opponents of the Defense of Marriage Act used different rhetorical techniques over time to assert themselves as moral and reasonable. Between 2003 and 2014, the parameters of moral reasonableness changed: as she writes, in courtroom discourse sexual orientation shifted from being treated “as a matter of conduct, a ‘lifestyle’ choice that could be criticized for its immorality” (157) to a “category of citizen whose rights deserved careful consideration” (58). This demonstrates the import of social change into legal debate, as it became less possible for opponents of same-sex marriage to maintain the credibility of their position, thereby supporting the conditions required for the Act to be deemed unconstitutional.
Tracey's close observation of these discursive processes makes for a compelling account of social-legal change. Tracey makes a valuable contribution in not only showing, with empirical rigor and clarity, how broader social shifts regarding same-sex relations have been taken up within the legal field, but also how the discursive structures of these legal genres moderate and are transformed under their influence. Yet, considering the book's focus on social change and identity, more substantive engagement with existing scholarship is needed to address the broader relationships between social and legal change (Reference Levitsky, Sarat and EwickLevitsky 2015; Reference McCannMcCann 2006), law and identity (Reference Danielsen and EngleDanielsen and Engle 1995), as well as the legal regulation of sexual identity categories (Reference StychinStychin 2003). These bodies of literature might have strengthened Tracey's analysis in two ways: first, by enriching her insights with more theoretical depth, and second, by allowing her to show more explicitly how her findings might extend, support, or challenge existing work in this field, and in doing so better highlight the originality and utility of her claims.
Overall, Discourse, Identity, and Social Change in the Marriage Equality Debates is a work of high quality and broad appeal. Tracey offers an analysis of impressive depth and clarity, and in doing so, makes a strong case for the utility and empirical power of discourse analysis as a method, proving its ability to give us a comprehensive way to understand legal phenomena. Her work will be of interest to scholars working in fields as diverse as discourse and language studies, gender and sexuality studies, law and jurisprudence, sociology, and sociolegal studies.
