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Litigating for Lesbian and Gay Rights: a Legal History Patricia A Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-1993 Litigating for Lesbian and Gay Rights: A Legal History Patricia A. Cain Santa Clara University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 79 Va. L. Rev. 1551 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. LITIGATING FOR LESBIAN AND GAY RIGHTS: A LEGAL HISTORY PatriciaA. Cain* INTRODUCTION ( AY rights cases have never been at the forefront of the legal academy. For example, prior to the Supreme Court's decision in Bowers v. Hardwick,I the constitutional rights of gay men and lesbians were typically omitted from coverage in constitutional law classes. Even today, some constitutional law teachers continue to omit cover- age of lesbian and gay rights issues. The rights of lesbians and gay men were not totally ignored by pre- Hardwick legal scholars, however. Several constitutional scholars discussed the potential equal protection and due process claims of les- bian and gay litigants. 2 Rarely, however, did these legal scholars make lesbians and gay men the primary focal point of their work. * Professor of Law, University of Iowa. I would like to thank my friends at Lambda Legal Defense and the Gay and Lesbian Rights Project of the American Civil Liberties Union for their ongoing conversations regarding lesbian and gay rights litigation. For comments on an earlier draft of this Article, I thank Nan Hunter, Mary Anne Case, and especially Jean Love. An even earlier draft of this Article was presented to a faculty seminar at the University of Nebraska Law School, and I thank those participants. Research assistance was provided by Jill Altman and Paul Dietsch. 1 478 U.S. 186 (1986). 2 See, e.g., John H. Ely, Democracy and Distrust 162-64 (1980) (discussing equal protection analysis); Laurence H. Tribe, American Constitutional Law 944-45 (1978) (discussing equal protection analysis); Paul Brest, The Substance of Process, 42 Ohio St. L.J. 131, 135 (1981) (questioning the constitutionality of sodomy laws pursuant to an equal protection analysis); Kenneth L. Karst, Freedom of Intimate Association, 89 Yale L.J. 624, 658, 682-86 (1980); Kenneth L. Karst, The Supreme Court 1976 Term, Forward: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 62 (1977) (criticizing summary affirmance in Doe v. Commonwealth's Attorney, 425 U.S. 901 (1976)); J. Harvie Wilkinson III & G. Edward White, Constitutional Protection for Personal Lifestyle, 62 Cornell L. Rev. 563, 587-600 (1977). 3 A few legal scholars are notable exceptions to this statement. The most notable are Rhonda Rivera, Josh Dressler, and David Richards. See Rhonda R. Rivera, Book Review, 132 U. Pa. L. Rev. 391 (1984) (reviewing John D'Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970 (1983)); Rhonda R. Rivera, Recent Developments in Sexual Preference Law, 30 Drake L. Rev. 311 (1980-81); Rhonda R. Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799 (1979); Joshua Dressier, Judicial Homophobia: Gay 1551 HeinOnline -- 79 Va. L. Rev. 1551 1993 1552 Virginia Law Review [Vol. 79:1551 Once Hardwick was being litigated, lesbian and gay legal scholarship 4 increased significantly. Thus, to many in the legal academy, gay rights litigation appears to have begun with Hardwick. Yet that perception is not consistent with reality. A major purpose of this Article is to describe the broader history of gay rights litigation so that Hardwick can be seen in its proper context. Legal scholars are not alone in their misperceptions. Outside of the legal academy, there is a strong perception that the gay rights move- ment began with the Stonewall Riots in 1969. Although that event was certainly a turning point, a significant gay rights movement existed before that time. Thus, this Article will also cover the legal and social history that preceded Stonewall. This Article is primarily a legal history of gay rights litigation and the gay rights movement. Relying on the work of other scholars, in particular gay historians Jonathan Katz, 5 Martin Duberman, 6 Lillian Rights Biggest Roadblock, Civ. Liberties Rev., Jan.-Feb. 1979, at 19; Joshua Dressier, Study of Law Student Attitudes Regarding the Rights of Gay People to Be Teachers, 4 J. Homosexuality 315 (1979); Joshua Dressier, Gay Teachers: A Disesteemed Minority in an Overly Esteemed Profession, 9 Rut.-Cam. L.J. 399 (1978); David A.J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Hastings L.J. 957 (1979); David A.J. Richards, Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory, 45 Fordham L. Rev. 1281 (1977). Family law scholars also wrote about lesbian and gay issues pre-Hardwick, in particular about lesbian custody. See, e.g., Donna IHitchens & Barbara Price, Trial Strategy in Lesbian Mother Custody Cases: The Use of Expert Testimony, 9 Golden Gate U. L. Rev. 451 (1978- 79). 4 See generally the publications noted as lesbian- and gay-related in Professor Arthur Leonard's monthly newsletter, Lesbian/Gay Law Notes. The Association of American Law Schools Section on Gay and Lesbian Legal Issues publishes in its newsletter a partial bibliography from Professor Leonard's fies. The May to October 1991 Bibliography listed 68 books and articles and 49 student notes and comments. See AALS Section on Gay and Lesbian Legal Issues, Newsletter 6-8 (Fall 1991). In addition, there is now a student-edited law journal that focus on lesbian and gay issues: Law and Sexuality, published by students at Tulane Law School. Similar student-edited journals are in the planning stages at other law schools. 5 Jonathon Katz, Gay American History (rev. ed. 1992). 6 Martin Duberman, Stonewall (1993). HeinOnline -- 79 Va. L. Rev. 1552 1993 1993] Litigatingfor Lesbian and Gay Rights 1553 Faderman,7 Barry Adam," Randy Shilts,9 Eric Marcus,1" and John D'Emilio,11 I have attempted to contextualize some of the more famous pre-Hardwick gay rights cases by describing the social and legal conditions existing at the time. I have chosen to focus on litiga- tion that affects public sphere rights as opposed to litigation about private relationships and family issues, because Hardwick, as a practi- cal matter, more directly affects public sphere rights such as employ- ment and citizenship. 12 Although this Article is primarily intended as a legal history of pre- Hardwick litigation, I conclude in the last Part with some observa- tions regarding post-Hardwick litigation strategies. I focus primarily on public-employment cases in which litigators have stressed equal protection arguments to remedy cases of class-based discrimination. Many of these cases rely on what I consider to be an artificial bifurca- tion of status and conduct. In the last Part of this Article, I critique the status versus conduct distinction and argue that, despite Hard- wick, litigators should continue making substantive due process argu- ments that focus on lesbian and gay conduct. I believe such arguments are necessary to challenge the Hardwick holding, and fur- thermore, that such arguments more accurately reflect the reality of lesbian and gay lives. 7 Lillian Faderman, Odd Girls and Twilight Lovers: A History of Lesbian Life in Twentieth Century America (1991). 8 Barry D Adam, The Rise of a Gay and Lesbian Movement (1987). 9 Randy Shilts, Conduct Unbecoming: Lesbians and Gays in the U.S. Military, Vietnam to the Persian Gulf (1993). 10 Eric Marcus, Making History: The Struggle for Gay and Lesbian Equal Rights, 1945- 1990 (1992). 11 John D'Emilio, Sexual Politics, Sexual Communities (1983) [hereinafter D'Emilio, Sexual Politics]; John D'Emilio, Making Trouble (1992) [hereinafter D'Emilio, Making Trouble]. 12 This is not to say that Hardwick has no effect on private sphere rights. The sodomy statutes left standing by the Court's due process holding in Hardwick have been used to deny custody to gay and lesbian parents. See, e.g, Roe v. Roe, 324 S.E.2d 691 (Va. 1985), cited with approval in a recent lesbian mother case, Bottoms v. Bottoms, decided by the Henrico County, Virginia, Circuit Court in September, 1993. See Lesbian Loses Custody of Her Son to Her Mother, N.Y. Times, Sept. 8, 1993, at A17. The Times quotes Judge Buford M. Parsons, Jr., as follows: "The [lesbian] mother's conduct is illegal and immoral and renders her an unfit parent." Id. Despite Palmore v. Sidoti, 466 U.S. 429 (1984) (holding that custody decisions based on racial prejudice are unconstitutional), family law cases are rarely argued in constitutional terms. By contrast, state decisions regarding government employment and other public sphere rights pose clear constitutional issues similar to the issues in Hardwick. HeinOnline -- 79 Va. L. Rev. 1553 1993 1554 Virginia Law Review [Vol. 79:1551 I. GAY RIGHTS BEFORE STONEWALL A. Early Beginnings and the Conspiracy of Silence The first authentically pro-gay civil rights organization was formed in Germany in 1897.13 The goals of the Scientific-Humanitarian Committee (Wissenschaftlich-Humanitfires Komitee) were to fight for repeal of anti-gay provisions in the German penal code, to promote public education about homosexuality, and to encourage homosexuals to organize for their rights.14 Underlying the group's political philos- ophy was the theory that homosexuals were a "third sex"1" deter- mined at birth.
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