Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement

By Patricia A. Cain | Go to book overview

1
Earlier Civil Rights Movements: Lessons to Be Learned

The lesbian and gay civil rights movement has focused on two primary themes or arguments: (1) that gay people are similar to all other human beings and should be treated equally, and (2) that gay people are different in ways that the law ought to respect and protect. In this regard, the movement is no different than earlier civil rights movements that also emphasized the themes of sameness and difference. The "sameness" thesis leads to an argument based on the Aristotelian notion of equality, that similarly situated persons ought to be treated similarly. The "difference" thesis leads to the use of arguments based on notions of libertarianism and the freedom of the individual to define self and live according to individual conscience.

The first argument, based on sameness, is easier to articulate, both politically and morally. If A and B are equally talented at designing bridges, then a city who is looking for a competent bridge designer should not care whether the designer is black, female, or gay. The talent of designing bridges is all that is relevant. The second argument, based on difference, is tougher. A person embracing the difference thesis will argue that, because each individual is unique, the law must respect the ways in which individual A is different from B. Disagreements abound over what sort of state action is required to give equal respect to differences. For example, does the state give sufficient respect to individual choices about sexuality simply by not judging what occurs in private (e.g., no regulation of consensual sex in private)? Or must the state do more--for example, accord public recognition for couples who have chosen to experience sexual intimacy and commitment with someone of the same sex? Jean Bethke Elshtain, a renowned professor of ethics, explains the problem as follows:

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