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

By Patricia A. Cain | Go to book overview

10
Conclusion

Relying on successful courtroom arguments made in the African American civil rights movement and the women's movement, the lesbian and gay civil rights movement has litigated for equal access in the public sphere and for the right to be left alone in the private sphere. As was true in both earlier movements, the first lesbian and gay rights case to reach the U.S. Supreme Court was not successful.

Gay and lesbian activists have learned from earlier civil rights movements that the most workable legal arguments, especially in litigation, are sameness arguments. Translated into a constitutional argument, the argument based on sameness is that similarly situated individuals should be accorded equal treatment under the law. But we have also learned from earlier civil rights movements that the sameness thesis has its limits. Sameness arguments simply won't work when the court perceives difference rather than sameness.

Another problem with the sameness thesis is its blandness, its tendency to maintain the status quo--not a particularly strong rallying cry for a vibrant civil rights movement. In the gay rights movement, as in earlier civil rights movements, activists often disavow sameness arguments because of their tendency to devalue the very thing that makes us who we are. For example, Kate Kendell, executive director of NCLR, writes that she is biased against making the sameness argument because:

It denies that as a lesbian I am in any essential important way different from say, my sister, who is straight--but I am essentially and proudly different--my erotic, passionate, emotional desire is captivated and fulfilled by another woman. That folks is an essential, core difference between me and my sister and to deny the difference is to deny that sexuality and that I will not do.

-277-

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

Table of contents

  • New Perspectives on Law, Culture, and Society ii
  • Title Page iii
  • Contents v
  • Preface ix
  • Acknowledgments xi
  • Introduction 1
  • 1 - Earlier Civil Rights Movements 12
  • 2 - Lawyers, Legal Theories, and Litigation Strategy 45
  • 3 - Public Rights: 1950-1985 73
  • 4 - Private Rights: 1950-1985 133
  • 5 - When Private Becomes Public 155
  • 6 - Bowers v. Hardwick 169
  • 7 - Public Sphere Rights Post-Bowers v. Hardwick 183
  • 8 - Private Sphere Rights Post-Bowers v. Hardwick 232
  • 9 - Public Recognition of Private Relationships Post-Bowers v. Hardwick 254
  • 10 - Conclusion 277
  • Table of Cases 289
  • Bibliography 308
  • Index 313
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