The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

JANET E. HALLEY


5
GAY RIGHTS AND IDENTITY IMITATION: ISSUES IN THE ETHICS OF REPRESENTATION

GAY and lesbian advocates often claim that gay rights are just like rights already established for racial minorities or women by the black civil rights movement and the women's movement. Particularly when they argue to judges, who are formally if not actually constrained by precedent, and even when they make more general political appeals, advocates are opportunists looking for a simile: "Your honor, this is just like a race discrimination case; this is just like a sex discrimination case."

And indeed, sexual orientation and sexual identities have formed the basis for important social movements that look like other identity-based movements. Gay men and lesbians, transgendered people, and other sexual dissidents have been able to create legal change and legal controversy on issues falling under almost every traditional rubric of law. Sexually identified progressives have legal reform aspirations and achievements affecting contract, tort, procedure, constitutional law, civil rights, family law, trusts and estates, employment law, housing law, taxation, regulation, and more.1 They have grassroots and national organizations, including NAACP-like national legal reform offices staffed with full-time lawyers. They also have ferocious opponents convinced that, if progressives realize any of their reform aspirations, the entire national character will collapse. Sexual orientation and sexuality movements have the look and feel of identity movements of the contemporary sort.

But in important ways, they lack the substance. "Identity politics" is usually waged on assumptions that identity inheres in group members, that group membership brings with it a uniformly shared range (or even a core) of authentic experience and attitude, that the political and legal interests of the group are similarly coherent, and that group members are

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