Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s

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NOTE CONTENTS

INTRODUCTION

I.   A NOTE ON THEORY: GAY IDENTITY AND HISTORY

II.  DENYING GAY "IDENTITY"
     A. Early Gay Activists and the Denial of Identity
        1. A False Start
        2. Eliding Group-Based Arguments: Due Process and First A
           Amendment Claims
        3. Disrupting Identity: Manual Enterprises and Boutilier
        4. Modern vs. Contemporary Theoretical Perspectives
     B. Judicial Responses

III. CREATION: CONSTRUCTING LEGAL IDENTITY THROUGH THE RACE
     ANALOGY IN COURTS
     A. Choosing a Bounded Identity Model
     B. Shared Harms--Shared Context
     C. Constructing New Self-Perceptions
     D. Doctrinal Developments and the Stabilization of Identity
        1. Doctrinal Developments: A Formal Minority Group
        2. A Gay Movement
        3. The Failure of Analogies

IV.  THE RACE-SEX ANALOGY
     A. Family Rights: An Area of Disanalogy
     B. Family Rights as Marriage Rights and the Race-Sex Analogy
     C. The Continued Reliance on Analogies in Marriage Litigation
        1. Stereotyping vs. Subordination vs. Classification
        2. Private/Fundamental Issues vs. Public/Secondary Issues

CONCLUSION

INTRODUCTION

In today's battle over gay rights, combatants draw upon powerful social and cultural discourses to frame gays in diametrically opposite ways. Opponents of gay rights use traditional religious understandings of sexuality and gender roles. Supporters, in turn, utilize language of civil rights that constructs gays as a legal minority group, both to gain judicial solicitude and to sway broader audiences.

This Note suggests that the construction of gay identity, to a large extent, determines the extent of rights that individuals attracted to the same sex enjoy. Theorists have noted, put simply, that a major function of individual identity is to establish the relationship between the individual and society. An individual's self-perception helps determine where she thinks she fits within society, and the role she plays in it; the way society perceives the identity determines which roles will be granted her, and which denied. (1) That gays are now able to use legal minority group identity to mediate their relationship with society, rather than rely on medicine or religion (which construct gay identity in very different ways), has completely resituated gays within society, both to themselves and, increasingly, to the general public. It has affected which rights gays have sought and the ways in which they have sought these rights.

While the use of law to suppress identity generally has been explored, the relationship between the substantive development of, and alteration in, elements of minority identity (whether suppressed or not) and litigation strategies bears further discussion. (2) Gay rights history readily lends itself to this analysis, given a rich theoretical literature on the subject of sexuality and identity. This Note specifically addresses the analogy between race and sexuality made by midcentury gay rights activists, which played a major role in altering gay identity (perceived from within and without the community) and thus gay litigation methods. While the Note focuses on the race analogy, other legal developments have, of course, also played roles in developing the way we think of today' s gay community.

As Part II of the Note indicates, the debate over the race analogy has raged since the beginning of the gay rights movement. As gay urban enclaves grew in the post-World War II era, greater visibility led to greater societal suppression, which in turn led to greater gay mobilization. (3) Using the analogy, a few early gay organizers argued that gays, like African-Americans, are a minority, that discrimination against them should bear the same stigma as racial discrimination, and that judges should be as attentive to gay rights as they are to racial justice. However, the mid-century "homophiles" who ran the first modern gay rights organizations initially challenged the analogy between race and sexuality. …