Public Recognition of Private Relationships Post-- Bowers v. Hardwick
Lesbian and gay relationships exist. Courts and legislatures now know more about these relationships than they did in the early days of the movement. In the 1970s, family law judges were surprised by lesbian mothers who admitted their lesbianism but nonetheless demanded custody rights. Judges rarely understood lesbianism or lesbian relationships. Litigants and their lawyers often report instances in which judges cross-examined lesbian mothers about their sex lives, unable to understand what exactly two women could do in bed. In one early Ohio case, the judge asked the lesbian mother's expert witness, Dr. Richard Green, if he could explain how "the sex act between lesbians [was] accomplished?" 1 Judges in those early days assumed not only that relationships were immoral or criminal, but also that relationships did not last and that gay parents would unduly influence their children's choice of sexuality. The view that such relationships are immoral remains, but courts now have a clearer and more accurate view of what it means to be a lesbian and to share a family life with a partner and children.
In the equal protection litigation following the Hardwick decision, lesbian and gay litigators argued that when the state discriminated against homosexual persons as a class, lesbians and gay men were entitled to heightened judicial scrutiny. In courtrooms around the country lawyers debated the nature of the class. Did gay men and lesbians have more political power than racial minorities or women? Did they suffer prejudice? What exactly qualified as homosexuality? Was particular conduct necessary or was personal identification sufficient? In making these arguments, lesbian and gay