Academic journal article Michigan Law Review

The First Queer Right

Academic journal article Michigan Law Review

The First Queer Right

Article excerpt


THE FIRST AMENDMENT AND LOBT EQUALITY: A CONTENTIOUS HISTORY. By Carlos A. Ball. Cambridge and London: Harvard University Press. 2017. Pp. 284. $39.95.


Contemporary discussions about lesbian, gay, bisexual, transgender, and queer rights often center around the need for equality for LGBTQ individuals.1 If one is a Justice Anthony Kennedy acolyte, then perhaps dignity too.2 On the other hand, current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment's protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ antidiscrimination protections.3 But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals in American society, as explained in Professor Carlos Ball's important new book, The First Amendment and LGBT Equality: A Contentious History.4

As methodically detailed by Ball, in many ways the First Amendment's protections for free expression and association operated as what I label "the first queer right." Decades before the Supreme Court would recognize the importance of equal treatment of same-sex relationships5 or the privacy harms implicated by criminal bars to same-sex intimacy,6 the Court protected the ability of queer people to espouse explanations of their identities and permitted them leeway to gather together to further explore and elaborate those identities.7 In this way, the First Amendment served an important incubating function for the articulation of equality and privacy arguments in favor of LGBTQ individuals while it simultaneously created space for greater visibility of queer people in American society.8 As we now know, social contact or exposure to stigmatized identities plays a major role in helping destabilize and correct prejudicial attitudes.9

According to Ball, it is critical to bear in mind the First Amendment's historical pedigree in advancing LGBTQ rights when confronting current controversies over whether certain religious adherents should be able to assert expressive, associational, or religious objections to employing or serving LGBTQ individuals in the marketplace. As Ball rightly observes, America has been down this road before-those resistant to racial equality raised similar arguments in opposition to federal antidiscrimination laws.10 Courts and legislatures were able to strike an appropriate balance that ensured race could not be used to discriminate-even by religious individuals who objected to integration.11 But religious organizations were still permitted to discriminate in favor of their religious devotees when it came to employment decisions, preserving their associational and religious rights.12 For Ball, more or less the same balance should be struck when adjudicating (or legislatively resolving) the current controversies over, for example, whether a florist or baker who happens to have a religious objection to same-sex marriage should be able to refuse service to a same-sex couple for their wedding.13 In a nutshell, private citizens and corporations in the marketplace should not be able to discriminate,14 but not-for-profit religious organizations should be granted more space to exercise First Amendment values.15 This Review largely agrees with Ball's proposed balance between antidiscrimination and First Amendment values. And Ball's careful explanation of the First Amendment's historical role in protecting marginalized groups is critical context for understanding the current (purported) tension between LGBTQ rights and First Amendment rights.

But at the same time, the story Ball paints of the First Amendment as "the first queer right" somewhat elides the rhetorical impact the initial focus on the First Amendment had on how queer identities were conceptualized and framed. Ball provides little in the way of comparative analysis discussing how LGBTQ identities were portrayed to take advantage of the First Amendment relative to how they were later portrayed when trying to take advantage of the Equal Protection Clause (though he does examine why, doctrinally, the First Amendment was initially more fertile ground for lesbian, gay, and bisexual people than equal protection). …

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