Gay Rights Law and Public Policy / Susan Gluck Mezey
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MEZEY LAW • POLITICS “Queers in Court is an excellent history of gay rights litigation in the U.S. It is thorough and yet readable. It covers topics ranging from marriage to the military, it covers them over an entire cen- tury of American history, it appreciates their nuances, and it places litigation in the context of pub- lic opinion. Queers in Court would be useful in a college or law school classroom and it would also be good company on a long plane flight. In one volume, it provides a solid, well-rounded, easily- QUEERS IN COURT digested introduction to all of gay law.” —William Rubenstein, UCLA School of Law; founding director, Williams Institute on Sexual Orientation Law; and former director, ACLU Lesbian and Gay Rights Project “I learned a lot from reading Queers in Court, and expect to consult it many times. The book is QUEERS IN COURT must reading for students of gay and lesbian politics, but it will also be useful for anyone inter- ested in social movements in the American courts. It provides that rare balance of a broad per- spective that still includes all of the details specialists require.” —Clyde Wilcox, Georgetown University “Queers in Court is a meticulously researched survey of gay rights cases in state and federal courts over the last fifty years. Susan Gluck Mezey provides a comprehensive and richly detailed reference that is indispensable to understanding the interplay in American policymaking among judges, other legal and political elites, and public opinion. A truly enlightening book.” —Daniel R. Pinello, author of Gay Rights and American Law and America’s Struggle for Same-Sex Marriage SUSAN GLUCK MEZEY is professor of political science and assistant vice president for research at Loyola University Chicago. For orders and information please contact the publisher GAY RIGHTS LAW ROWMAN & LITTLEFIELD PUBLISHERS, INC. A wholly owned subsidiary of ISBN-13: 978-0-7425-4931-9 The Rowman & Littlefield Publishing Group, Inc. ISBN-10: 0-7425-4931-3 AND PUBLIC POLICY LITTLEFIELD 4501 Forbes Boulevard, Suite 200 90000 ROWMAN & Lanham, Maryland 20706 9 780742 549319 1-800-462-6420 • www.rowmanlittlefield.com SUSAN GLUCK MEZEY ᳚ Queers in Court QUEERS IN COURT Gay Rights Law and Public᳚ Policy Susan Gluck Mezey ROWMAN & LITTLEFIELD PUBLISHERS, INC. Lanham • Boulder • New York • Toronto • Plymouth, UK ROWMAN & LITTLEFIELD PUBLISHERS, INC. Published in the United States of America by Rowman & Littlefield Publishers, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowmanlittlefield.com Estover Road Plymouth PL6 7PY United Kingdom Copyright © 2007 by Susan Gluck Mezey All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photo- copying, recording, or otherwise, without the prior permission of the publisher. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Mezey, Susan Gluck, 1944- Queers in court : gay rights law and public policy / Susan Gluck Mezey. p. cm. ISBN-13: 978-0-7425-4931-9 (cloth : alk. paper) ISBN-10: 0-7425-4931-3 (cloth : alk. paper) ISBN-13: 978-0-7425-4932-6 (pbk. : alk. paper) ISBN-10: 0-7425-4932-1 (pbk. : alk. paper) 1. Gay rights—United States. 2. Gays—Legal status, laws, etc.—United States. 3. Homosexuality—Law and legislation—United States. I. Title. KF4754.5.Z9M49 2007 346.7301'3—dc22 2006034321 Printed in the United States of America ™ °° The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. I dedicate this book to Rebecca and Norah in the hope that when they grow up, the world will be more tolerant of diversity. ᳚ Contents Acknowledgments ix Table of Cases xi Introduction 1 CHAPTER 1 Forging Gay Rights Activism 15 CHAPTER 2 Litigating Equality and Privacy Rights 45 CHAPTER 3 Struggling over Same-Sex Marriage 87 CHAPTER 4 Contesting Inequality in the Military 135 CHAPTER 5 Challenging Employment Discrimination 189 CHAPTER 6 Conclusion 229 References 239 General Index 257 Index of Cases 263 About the Author 269 vii ᳚ Acknowledgments N fleshing out the plan of the book in its initial stages, I benefited from Iconversations as well as lengthy e-mail exchanges with Jay Barth. Jay also graciously agreed to read and comment on the entire draft of the manu- script, and I appreciate his suggestions, which helped to improve the book. In the research and writing of an earlier version of chapter 3, which was ini- tially presented as a paper at the 2005 American Political Science Association, I was ably assisted by Loyola University graduate students Nathaniel Gest and Mary Hakken-Phillips; they also helped in tracking down cases, con- gressional materials and other government documents, law review articles, and polling data for the other chapters. To the extent this analysis sheds light on the complex political, social, and legal issues involved here, I thank them for the role they played. Of course, no one other than myself is responsible for any errors. I want to thank Loyola University for giving me the time and resources to complete the book by granting me a leave of absence and supplying me with research funds. Within Loyola, law school librarian Julia Wentz helped immeasurably by facilitating access to the legal databases that are necessary to an analysis of litigation. Nora Englund was extremely accommodating in forwarding documents to me during my leave and providing lots of assis- tance throughout. And Chris Anzalone at Rowman & Littlefield has been great to work with from the time we first spoke at the Law & Society meet- ing in Chicago; I appreciate his support and encouragement throughout this project. Lynn Weber and the staff at Rowman & Littlefield have also been helpful to me. On a personal note, I am grateful as always to Michael Mezey, my hus- band and best friend, whose love and support helped make it possible for me to accomplish my writing during this leave of absence as well as every ix x | ACKNOWLEDGMENTS other time. The book would likely have been written anyway, but he played a crucial role in helping it get done on time and, hopefully, done well. My children, Jennifer Mezey and Jonathan Levy—proud parents of the lovely and irrepressible Rebecca—and Jason Mezey and Deirdre McMahon— equally proud parents of the delightful and adorable Norah—have made my life more fulfilling than I can begin to describe. They keep my focus on what is truly important, and my life would be incomplete without them. This book is dedicated to our youngest generation in the hope that many of the battles discussed in it will be resolved in favor of equal rights and dignity by the time they reach political and social consciousness. ᳚ Table of Cases A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413 (1966). Able v. United States, 847 F. Supp. 1038 (E.D.N.Y. 1994). Able v. United States, 44 F.3d 128 (2d Cir. 1995) (1995a). Able v. United States, 1995 WL 116322 (E.D.N.Y.) (1995b). Able v. United States, 880 F. Supp. 968 (E.D.N.Y. 1995) (1995c). Able v. United States, 88 F.3d 1280 (2d Cir. 1996). Able v. United States, 968 F. Supp. 850 (E.D.N.Y. 1997). Able v. United States, 155 F.3d 628 (2d Cir. 1998). Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) (1982a). Adams v. Howerton, 458 U.S. 1111 (1982) (1982b). Adams v. Laird, 420 F.2d 230 (D.C. Cir. 1969). Adams v. Laird, 397 U.S. 1039 (1970). Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005). American Civil Liberties Union of Tennessee v. Darnell, 195 S.W.3d 612 (Tenn. 2006). Andersen v. King County, 2004 WL 1738447 (Wash. Super.). Andersen v. King County, 138 P.3d 963 (Wash. 2006). Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y. Sup. 1971). Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986). Ashton v. Civiletti, 613 F.2d 923 (D.C. Cir. 1979). Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). Baehr v. Miike, 910 P.2d 112 (Haw. 1996) (1996a). Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct.) (1996b). Baehr v. Miike, 950 P.2d 1234 (Haw. 1997). Baehr v. Miike, 1999 LEXIS 391 (Haw). Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Baker v. Nelson, 409 U.S. 810 (1972). xi xii | TABLE OF CASES Baker v. Vermont, 744 A.2d 864 (Vt. 1999). Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982). Baker v. Wade, 769 F.2d 289 (5th Cir. 1985). Baker v. Wade, 478 U.S. 1022 (1986). Beller v. Lehman, 452 U.S. 905 (1981). Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980). benShalom v. Marsh, 703 F. Supp. 1372 (E.D. Wis. 1989) (1989a). benShalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) (1989b). benShalom v. Secretary of Army, 489 F. Supp. 964 (E.D. Wis. 1980). benShalom v. Secretary of Army, 776 F.2d 1049 (7th Cir. 1985). benShalom v. Secretary of the Army, 826 F.2d 722 (7th Cir. 1987). benShalom v. Stone, 494 U.S. 1004 (1990). Berg v. Claytor, 436 F. Supp. 76 (D.D.C. 1977). Berg v. Claytor, 591 F.2d 849 (D.C. Cir. 1978). Board of Directors of Rotary International v.