Gay Marriage: For Better or For Worse? (Oxford, 2006) (co-authored with Darren Spedale)
Equality Practice: Civil Unions and the Future of Gay Rights (Routledge, 2002)
Gaylaw: Challenging the Apartheid of the Closet (Harvard, 1999)
Constitutional Stupidities, Constitutional Tragedies (NYU, 1998) (co-authored and edited with Sanford Levinson)
Sexuality, Gender, and Law (Foundation, 1997; 2d ed. 2004; paper ed. 2005) (co-authored and edited with Nan Hunter)
The Case for Same-Sex Marriage (Free Press, 1996)
Cases and Materials on Constitutional Law: Themes for the Constitution’s Third Century (West, 1993; 2d ed. 1998; 3d ed. 2003) (co-edited with Daniel Farber and Philip Frickey)
Hart and Sacks, The Legal Process: Problems in the Making and Application of Law (Foundation, 1994) (co-authored and edited with Philip Frickey)
Dynamic Statutory Interpretation (Harvard, 1994)
Cases and Materials on Legislation: Statutes and the Creation of Public Policy (West, 1987; 2d ed. 1994; 3d ed. 2001) (co-edited with Philip Frickey and, after 2001, Elizabeth Garrett)
A Dance Along the Precipice: Political and Economic Dimensions of the International Debt Problem (Lexington, 1985) (editor and contributor)
Current Book Projects
Gay Marriage: For Better or For Worse? (Oxford, 2006). This recently published book, which Professor Eskridge co-authored with Fulbright Scholar Darren Spedale, updates the same-sex marriage debate to take account of the new argument against same-sex marriage, to wit: same-sex marriage in Scandinavia has destroyed the institution in those countries, and left children to be raised without married parents. Eskridge and Spedale found this: Long in decline, with soaring divorce and non-marital birth rates, Danish marriage has actually rebounded since Denmark recognized same-sex partnerships in 1989. Less dramatic evidence from Norway and Sweden runs in the same direction. The authors' evidence refutes this argument, made by such prominent anti-marriage intellectuals as Judge Robert Bork, Representative Tom DeLay, and Senator Rick Santorum, and also suggests that these advocates are themselves undermining marriage and “traditional family values.” But the Scandinavian experience suggests sobering lessons for gay activists as well. Same-sex marriage ought not be imposed by judicial fiat, but only through a process that includes legislative and popular feedback. More important, even gay-tolerant jurisdictions (like Denmark in 1989) may require an intermediate institution (like registered partnerships or civil unions) before they can handle gay marriage.
Sodomy, an Intimate History (Viking and Penguin, forthcoming 2007). This book is a social, intellectual, political, and legal history of sodomy laws in the United States, from the Civil War to the present. For most of American history, these laws were understood to target coercive sexual assault by aggressive men against children, women, and sometimes other men; these laws were rarely enforced against private sexual activities between consenting adults. But since the 1870s, traditional values activists (from Anthony Comstock to Anita Bryant and Jerry Falwell) have periodically made consensual sodomy the object of public campaigns of purification. By the mid-twentieth century, these laws were associated with “homosexuals and other sex perverts,” and moralists (ranging from J. Edgar Hoover to Earl Warren) deployed sodomy laws to inaugurate an anti-homosexual terror unprecedented in American history. America’s perennial body politics, pitting moralistic themes of disgust and impurity against themes of sexual tolerance and equal citizenship, has in the last generation focused on homosexuals. Although the Supreme Court’s 2003 decision striking down Texas’s homosexual sodomy law seemed to be a breakthrough for gay rights, that decision is better read as a signpost that the body politics debate has shifted, away from private sex between consenting adults, and toward marriage and family.
Super-Statutes, The New American Constitutionalism (Yale, forthcoming 2007). Co-authored with political scientist John Ferejohn of Stanford’s Hoover Institute, this project explores the constitutional role of legislatures and agencies from a different angle—super-statutes. A super-statute is a law or series of laws that (1) seek to introduce or consolidate a norm or principle as fundamental in our polity, (2) over time do “stick” in the public culture even as the norm evolves through a series of debates and even conflicts about its elaboration or specification, (3) such that the super-statute and its normative principle have a broad effect on the law—including effects beyond the four corners of the statute. Examples of such statutes include the Sherman Act of 1890, the Social Security Act of 1935, and the Civil Rights Act of 1964. Super-statutes and related phenomena have given rise to what we call a New American Constitutionalism. Unlike the standard account of American constitutionalism, this new constitutionalism maintains that many important changes in public norms and constitutional principles occur outside of the Article V process for changing the Constitution, are developed in legislatures and agencies rather than in courts, and are incremental and continuous rather than dramatic and episodic. The authors defend the normative superiority of the new American constitutionalism and explore some of its ramifications for the operation of public law in the new millennium.