Although this book is finished, gay rights litigation continues. Since Bowers v. Hardwick was decided in 1986, the U.S. Supreme Court has agreed to hear only three cases involving legal claims pressed by lesbian or gay litigants. The most recent case, Dale v. Boy Scouts of America, was handed down as recently as June 26, 2000, while this book was in production. Lower courts, both federal and state, hear lesbian and gay rights cases much more frequently. I have updated the discussion of all cases, including Dale, through July 15, 2000.
The reader should be aware that several cases discussed in this book have not yet reached their final conclusion. In particular, there are at least three cases challenging state sodomy statutes that may yet be appealed, conceivably even to the U.S. Supreme Court, thereby creating an opportunity for the Court to reconsider its opinion in Bowers v. Hardwick.
In addition, the Supreme Court has not yet ruled on whether the equal protection clause of the Fourteenth Amendment protects lesbian and gay employees from government-imposed discrimination. The Romer case can be cited as evidence that the Court will answer the question affirmatively, but as of the completion of this book, the Court has denied certiorari in every case posing the question directly.
Finally, I predict that there will be a flurry of post- Dale litigation in which landlords and employers, as well as allegedly private clubs, will claim that they have a First Amendment right to discriminate on the basis of sexual orientation. A case that is currently before the Ninth Circuit Court of Appeals, Thomas v. Anchorage Equal Rights Commission, may well tell us more about the strength of such First Amendment claims than the Dale case does. Stay tuned. The struggle for "rainbow rights" is far from over.
Patricia A. Cain