UCLA Law Review Volume 57, Issue 5
In a 1999 assessment, New York Times journalists Dudley Clendinen and Adam Nagourney stated that “it seems likely that the movement for gay identity and gay rights has come further and faster, in terms of change, than any other that has gone before it in this nation.” The evidence supports their claim. The Encyclopedia of Associations, for instance, shows that the number of organizations devoted to gay causes has skyrocketed in recent decades. In 1970, there were no gay or lesbian associations listed; in 1980, there were 14; in 1990, there were 234; and in 2000, there were 327. A “gay tipping point” occurred in the United States in the latter decades of the twentieth century.
It is a remarkable fact that rhetorically the state is gendered male, while state-on-state violence is continually represented as sexual violence. This Article applies the insights of queer theory to examine this rhetoric of sexual violation. More specifically, it analyzes the injury of colonialism as a kind of homoerotic violation of non-Western states’ (would-be) sovereignty. It does so by taking seriously the legal fiction of the state as an “international legal person.” Historically, colonial violence is routinely described as rape. What does it mean to liken a state to a person, and its conduct to rape? How does a state rape? Whom does it rape, and under what conditions?
We have arrived at a crossroads in terms of the intersection between law, sexuality, and globalization. Historically, and even today, the majority of accounts of LGBT migration tend to remain focused, in one scholar’s words, on “a narrative of movement from repression to freedom, or a heroic journey undertaken in search of liberation.” Within this narrative, the United States is usually cast as a land of opportunity and liberation, a place that represents freedom from discrimination and economic opportunity. But this narrative also elides the complexity that erupts from grappling with the reality that many other jurisdictions outside of the United States can be even more forward-looking when it comes to recognizing the need for LGBT civil rights and the fact that many immigrants may confront a much more complex reality for many people of color, particularly in a post-9/11 world.
As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as “sticky intuitions,” to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions’ work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public discourse. Although the individual intuitions will not surprise those familiar with the field, their amalgamation into a typology sheds light on their synergies as well as the complex nature of their influence.
Sexuality, gender, and the law now constitutes an important field of legal inquiry and scholarship. This Article traces the evolution of the “big idea” in this area: Contrary to natural law assumptions, the nation is moving decisively toward the norm that sexual and gender variation are typically benign and not malignant. Today, this liberal norm is hotly contested by both traditionalists who oppose legal reforms that require them to accommodate sexual and gender minorities, and progressives who argue that the norm should be pressed more aggressively to assail status quo institutions such as marriage. The notion that sexual and gender variation is benign and can be educational continues to revolutionize American constitutional as well as statutory law.
Critics of litigation seeking to establish the right of same-sex couples to marry argue that it has produced a backlash undercutting the movement for marriage equality. In this account, movement lawyers emerge as agents of backlash: naively turning to the courts ahead of public opinion, ignoring more productive political alternatives, and ultimately hurting the very cause they purport to advance by securing a court victory that mobilizes opponents to repeal it. This Article challenges the backlash thesis through a close analysis of the California case, which contradicts the portrait of movement lawyers as unsophisticated rights crusaders and casts doubt on the causal claim that court decisions upholding same-sex couples’ right to marry have harmed the movement.
This Article highlights both the rewards in accepting and the risks in rejecting a claim of sex discrimination as one constitutional basis for invalidating restrictions on marriage for same-sex couples. It argues that recognition of same-sex marriage and elimination of enforced sex roles are as inextricably intertwined as the duck is with the rabbit in the famous optical illusion. As the Article demonstrates, this has long been clear to opponents, from the pope to David Blankenhorn, but needs to become as clear to proponents and to judges deciding same-sex marriage cases if we are to preserve and extend the liberty and equality of all regardless of sex or orientation.
This Article interrogates the sexual morality of Equal Protection. Gender equality jurisprudence reveals the unacknowledged influence of a traditional, heteronormative conception of sexual morality—the sexual double standard—that often sets the parameters of gender equality. When the U.S. Supreme Court frames a gendered law as limiting participation in education, the workplace, or civic life, it tends to apply a demanding form of heightened scrutiny that few gendered laws can survive. When, on the other hand, it frames a gendered law as governing the consequences of illicit sex, it tends to apply what I call the sex discount, replacing the rigorous scrutiny mandated by its public equality cases with an unacknowledged, much more deferential form of equal protection review. The Court invokes biological differences between men and women to justify this deference. But the sex discount does not genuinely accommodate gender differences regarding pregnancy, sexuality, or parenthood. Courts tend to reject reproductive justifications for inequality in public life; they tend to assume that biological differences are irrelevant when a heterosexual couple is married; they have applied the sex discount to gendered laws that serve no interest in protecting fetal life; and they apply a sex discount in cases of antigay discrimination that do not involve reproductive or sexual behavior. Rather, the sex discount authorizes governments to use gendered laws to enforce traditional gender norms about the morality of sex: to discourage abortion, to allow antigay discrimination, and to “incentivize” heterosexual marriage.
In her provocative recent book, Split Decisions, Janet Halley argues that left political movements have suffered from a “convergentist” assumption: They assume that forms of critique or intervention that serve the interest of one group, for example, feminists, also serve the interest of other groups, for example, gay/lesbian or queer activists. She contends that we ought to set aside this kind of convergentist assumption in order to examine the ways in which our frames, premises, and strategies may in fact point us in different directions. In this Article, I pose a contrary hypothesis: Analysis of and organizing around gender and sexuality may be suffering not from too much convergence but from too little.
For a very long time, issues of sexuality and gender remained outside the boundaries of what was considered important legal scholarship. Indeed, the very presence in the legal academy of the concepts of sexuality and gender was viewed as barely legitimate, certainly not respectable, and, in intellectual terms, at best facetious—or, to let Justice White rest in peace, at best frivolous.