Created in its image: The race analogy, gay identity, and gay litigation in the 1950S-1970S

Yale Law Journal

Volumn 119, Issue 2, 2009, Pages 316-372

  Konnoth, Craig J ^a  

^a NONE

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EID: 73249126609     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (408)

1. The literature that makes this point is varied. A classic statement is ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 123-25 (Touchstone 1986) (1963).
2. For a full, recent review of the history of "identity theory, [which] explains the relationship between society and individuals," see Michael L. Hecht et al., The Communication Theory of Identity: Development, Theoretical Perspective, and Future Directions, in THEORIZING ABOUT INTERCULTURAL COMMUNICATION 257, 260 (William B. Gudykunst ed., 2005).
3. The relationship between identity and litigation has thus far focused on the use of law to suppress and liberate identity. Professor William Eskridge, the foremost legal historian on gay rights, has covered legal and doctrinal developments in gay rights litigation across its history, see, e.g., WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET (1999)
4. [hereinafter ESKRIDGE, GAYLAW];
5. William N. Eskridge, Jr., Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981, 25 HOFSTRA L. REV. 817 (1997)
6. [hereinafter Eskridge, Challenging],
7. and has developed a theory on the doctrinal trajectory that minority movements take, see William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. PA. L. REV. 419 (2001)
8. [hereinafter Eskridge, Channeling];
9. William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062 (2002)
10. [hereinafter Eskridge, Some Effects].
11. However, his extensive corpus speaks primarily to the closetedness and suppression of minority groups, and their response to those conditions. While Eskridge observes that the comparison to the civil rights movement helped engender an identity for gay individuals, the point is related to a doctrinal focus on equal protection arguments. ESKRIDGE, GAYLAW, supra, at 97;
12. Eskridge, Some Effects, supra, at 2169. Similarly, Professor Kenji Yoshino has explained that his focus in analyzing 1950s and 1960s gay rights litigation has been upon "the demands of coerced assimilation," rather than the interplay of identity categories and litigation strategies. KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 93 (2007);
13. see also Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002)
14. [hereinafter Yoshino, Covering]. On the other hand, this Note does not deal with identity-suppression or liberation per se. Rather, it discusses how substantive alterations in identity models (uncloseted or closeted) are produced through litigation; these alterations in how individuals see themselves and how they are seen by society in turn provide impetus for further litigation.
15. See ESKRIDGE, GAYLAW, supra note 2, at 57-59.
16. Homophile is the term that many homosexuals in the 1950s and 1960s used to refer to themselves.
17. William Eskridge describes these methods of activists as moving from a "politics of protection," concealing their identity, to "a politics of recognition," adopting their identity. Eskridge, Some Effects, supra note 2, at 2161-79.
18. It is unclear whether gays in the early 1970s had already changed their minds on the issue of marriage, whether they focused on marriage because it was the only relationship form that fit neatly into the race-sex analogy, or some combination of the two.
19. See, e.g., Marc A. Fajer, A Better Analogy: "Jews, " "Homosexuals, " and the Inclusion of Sexual Orientation as a Forbidden Characteristic in Antidiscrimination Laws, 12 STAN. L. & POL'Y REV. 37, 37-39 (2001) (cataloguing criticisms of the race-sexuality analogy that argue that unlike gay Americans, blacks do not choose their minority status, that discrimination has less severe economic and social consequences for gays, and "that although race is usually revealed by appearance, people can choose not to reveal their sexual orientation, and thus les/bi/gay people can avoid discrimination in a way that most African-Americans cannot," and suggesting that other, religion-based, analogies should be used to gain gay rights).
20. But see EVAN WOLFSON, WHY MARRIAGE MATTERS: AMERICA, EQUALITY, AND GAY PEOPLE'S RIGHT TO MARRY l64-68 (2004) (describing and criticizing arguments against the racesexuality analogy);
21. Odeana R. Neal, The Limits of Legal Discourse: Learning from the Civil Rights Movement in the Quest for Gay and Lesbian Civil Rights, 40 N.Y.L. SCH. L. REV. 679, 681-83 (1996) (noting criticisms of the race-sexuality analogy, but arguing that the AfricanAmerican civil rights movement has lessons for the gay rights movement);
22. Angela Onwuachi-Willig, Undercover Other, 94 CAL. L. REV. 873, 875-76 (2006) (arguing that concealment of sexuality is as great a burden as the displaying of race).
23. Those discussions that do specifically focus on historical analogies ignore the historical development of the race-sexuality analogy. See DAVID A.J. RICHARDS, IDENTITY AND THE CASE FOR GAY RIGHTS: RACE, GENDER, RELIGION AS ANALOGIES 39-83 (1999).
24. See Susan Ferriss & Phillip Reese, Black Voters Helped Prop. 8 Passage, SACRAMENTO BEE, Nov. 7, 2008, at iA ('"The Obama people were thrilled to turn out high percentages of African Americans, but (Proposition 8) literally wouldn't have passed without those voters ....'" (quoting Gary Dietrich, President of Citizen Voice)).
25. Judy Wieder, African Americans vs Gay Americans?, HUFFINGTON POST, NOV. 5, 2008, ;
26. see also Wayne Besen, Frank Talk on Race and Prop. 8, 365GAY, Nov. 13, 2008, http://www.365gay.com/opinion/besen-frank-talk- on-race-and-prop-8 {"[T]here is something particularly galling and repugnant about people who have felt the sting of discrimination, [who then] turn around and step on another minority.");
27. Dan Savage, Black Homophobia, Slog, Nov. 5, 2008, http://slog.thestrager.com/2008/11/black-homophobia(accusing African-American voters of "writing anti-gay discrimination into California's constitution").
28. THE ADVOCATE, Dec. 16, 2008. This issue led to a furor, especially in the blogosphere.
29. See, e.g., Michael Crawford, Is Gay the New Black?, The Bilerico Project, Dec. 9, 2008,
30. Melissa McEwan, A Perfect Example, Unfortunately, Shakesville, Dec. 5, 2008,
31. Jennifer Molina, Is Gay the New Black? (NewsweekDec. 7, 2008), avilable at http://www.youtube.com/watch?v=3yk7ifzueSE.
32. See, e.g., Jasmyne A. Cannick, Op-Ed, The Gay/Black Divide, L.A. TIMES, Nov. 8, 2008, at A23;
33. Molina, supra note 10 (interviewing Michael Crawford). Cannick is an AfricanAmerican lesbian; Crawford is an African-American gay man.
34. Serena Mayeri makes this point regarding analogical arguments: "The meanings and consequences of analogical argumentation are closely tied to the historical context in which the analogies are invoked . . . ." Serena Mayeri, Note, "A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective, 110 YALE L.J. 1045, 1052 (2001).
35. See I MICHEL FOUCAULT, THE HISTORY OF SEXUALITY (Robert Hurley trans., 1978);
36. infra Subsection II.A.4.
37. See Janet E. Halley, Gay Rights and Identity Imitation: Issues in the Ethics of Representation, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 115 (David Kairys ed., 3d ed. 1998). The act-identity critique permeates queer theory and has been made by other postidentity/identity-deconstructing authors in related contexts.
38. See, e.g., Judith Buder, Imitation and Gender Insubordination, in INSIDE/OUT: LESBIAN THEORIES, GAY THEORIES 13, 13-14 (Diana Fuss ed., 1991) ("[I]dentity categories tend to be instruments of regulatory regimes, whether as the normalizing categories of oppressive structures or as the rallying points for a liberatory contestation of that very oppression. This is not to say that I will not appear at political occasions under the sign of lesbian, but that I would like to have it permanently unclear what precisely that sign signifies.").
39. Halley, supra note 14, at 140.
40. See Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMAN. 251, 253 (1999) (arguing that "African Americans did not enter civil society on their own terms and accompanied by their own values, but rather did so on the non-negotiable terms set by the dominant culture" and therefore had to subscribe to a white vision of "legal marriage");
41. Onwuachi-Willig, supra note 7, at 884 ("[T]he bind of choosing between the socially constructed concepts of' 'The Good Black Man' and 'The Bad Black Man' incentivizes middle-class heterosexual black men to perform their identity in a way that further entrenches current race, sex, class, and sexuality-based hierarchies. For example, these identity performances reinforce status positions that place black men above black women or heterosexual black men above heterosexual black women. ... [M]iddle-class heterosexual black men who wish to be included in the mainstream often perform their identity in a way that fits the assimilationist ideal of the 'The Good Black Man' by downplaying both their race and sexuality.");
42. id. at 888-94 (explaining how blacks may adopt certain forms of reverse covering to avoid destabilizing group identity, which thereby becomes restabilized along stereotyped lines);
43. see also Frank Rudy Cooper, Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, and Hierarchy, 38 U.C. DAVIS L. REV. 853, 859-70, 874-88 (2006) (expanding upon Onwuachi-Willig's observation);
44. cf. Devon W. Carbado, Straight out of the Closet, 15 BERKELEY WOMEN'S L.J. 76, 78 (2000) ("All of us, through the ways in which we negotiate our identities, play a role in entrenching a variety of social practices, institutional arrangements, and laws . . . ." (footnote omitted)).
45. See DAVID M. HALPERIN, HOW TO DO THE HISTORY OF HOMOSEXUALITY 109 (2002) (citing EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 47 (1990)).
46. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 45-47 (1990), for a full explanation. This existence of multiple coexisting, but incoherent, aspects of identity, is not unique to "gay identity."
47. See, e.g., Leonie Huddy, From Social to Political Identity: A Critical Examination of Social Identity Theory, 22 POL. PSYCHOL. 127, 162-64 (2001) (discussing multiple meanings held by a single group identity).
48. Halperin notes that the difference between effeminacy and inversion is a "blurred" one and describes it further. HALPERIN, supra note 17, at 123.
49. See id. at 109-10.
50. See id. at 47.
51. JOHN D'EMILIO, SEXUAL POLITICS, SEXUAL COMMUNITIES: THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES, 1940-1970, at 11-13 (1983). George Chauncey and William Eskridge make a similar point and provide fascinating narratives depicting the "[c]ase histories . . . newspaper accounts of the scandalous and the bizarre, and . . . personal correspondence and diaries" to which D'Emilio refers.
52. D'EMILIO, supra, at 11;
53. see GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN CULTURE, AND THE MAKING OF THE GAY MALE WORLD, 1890-1940 (1994);
54. ESKRIDGE, GAYLAW, supra note 2, at 57-97.
55. D'EMILIO, supra note 21, at 13.
56. Id. at 15-19;
57. see also infra Subsection II.A.4.
58. See ESKRIDGE, GAYLAW, supra note 2, at 24.
59. Susan R. Schmeiser, The Ungovernable Citizen: Psychopathy, Sexuality, and the Rise of MedicoLegal Reasoning, 20 YALE J.L. & HUMAN. 163 (2008) (providing the best recent account);
60. see also D'EMILIO, supra note 21, at 14 ("Colonial legal codes, drawn either directly from the Bible or from the theologically influenced English buggcry statute of 1533, prescribed death for sodomy . . . .");
61. ESKRIDGE, GAYLAW, supra note 2, at 23 (providing a history of the medicalization of homosexuality and noting that before World War I, "[m]edical and press accounts of sexual and gender deviation triggered social responses" and vice squads);
62. id. at 36-37 (describing the new legal definitions of homosexuality, largely drawn from medical vocabulary). In his discussion of the post-World War II period, Eskridge argues that the association of homosexuals with clinical psychopaths grounded further legal hysteria.
63. Id. at 57-97;
64. see also Margot Canaday, "Who Is a Homosexual?": The Consolidation of Sexual Identities in Mid-Twentieth-Century American Immigration Law, 28 L. & SOC. INQUIRY 351, 353 (2003) ("[Government officials . . . anchor[ed] homosexual status in psychiatric definitions.").
65. See D'EMILIO, supra note 21, at 21;
66. id. at 37 (describing Kinsey's influence on gay individuals but suggesting that the influence was ultimately counterproductive in broader society);
67. see also DENNIS ALTMAN, HOMOSEXUAL OPPRESSION AND LIBERATION 17 (N.Y. Univ. Press 1993) (1971) (suggesting that homosexuals "allowed themselves to be defined by" society in the 1950s and 1960s).
68. Dana Rosenfeld conducted numerous interviews with elderly gays who explain how they internalized the existent homophobic medico-social discourse on homosexuals. DANA ROSENFELD, THE CHANGING OF THE GUARD: LESBIAN AND GAY ELDERS, IDENTITY, AND SOCIAL CHANGE 26-33 (2003). As Rosenfeld notes, "because images of gay men and women that challenged their stigmatized 'nature' were . . . nonexistent before the mid- to late 1960s, accredited [that is, non-stigmatized] identities were simply unavailable before then."
69. Id. at 63.
70. See, e.g., 2 ENCYCLOPEDIA OF HOMOSEXUALITY 781 (Wayne R Dynes ed., 1990). The Mattachine "wanted only collaboration with the professionals-established and recognized scientists, clinics, research organizations and institutions - the sources of authority in American Society."
71. Id. (internal quotation maries omitted);
72. see ONE, June 1954 (issue devoted to religion);
73. ONE's Annual Midwinter Institute Impressive, THE LADDER, Feb. 1957, at 4 (describing noted psychiatrist Albert Ellis's speech at the Institute and suggesting that the movement continue to rely on science to work out the basis of homosexuality);
74. Psychotherapy vs. Public Opinion, THE LADDER, Feb. 1957, at 8-9 (describing the views of a counselor, Alice LaVere, who challenged the perception of homosexuality as an illness);
75. Leo. J. Zeff, Religion and Depth Psychology, THE LADDER, Jan. 1958, at 1. One contributor noted in 1963 that "[t]oo often THE LADDER is largely a forum for views hostile to Lesbians-with no rebuttal from persons trained to detect the fallacies involved [such as] psychologists and psychiatrists."
76. Letter to the Editor, THE LADDER, May 1963, at 25, 25;
77. see also DAVID ALLYN, MAKE LOVE NOT WAR 152 (2000) (noting that early organizers "often accepted unquestioningly the pronouncements of psychiatric 'experts'").
78. While Allyn probably overstates the case, see Martin Meeker, Behind the Mask of Respectability: Reconsidering the Mattachine Society and Male Homophile Practice, 1950s and 1960s, 10 J. HIST. SEXUALITY 78, 99 (2001), there was significant weight given to these claims. The question as to why gays would initially accept definitions that subjugated them is theorized by Michael Hogg and Dominic Abrams. They note that self-esteem is not the only reason for group identity to be accepted: rather, individuals also seek group identity for "self-knowledge," the search for "meaning," and resultantly "self-efficacy," "power," and control over the self.
79. Michael A. Hogg & Dominic Abrams, Social Motivation, Self-Esteem and Social Identity, in SOCIAL IDENTITY THEORY: CONSTRUCTIVE AND CRITICAL ADVANCES 28, 42-45 (Dominic Abrams & Michael A. Hogg eds., 1990).
80. Michael Hogg and Barbara Mullin make similar points. Michael A. Hogg & Barbara-A. Mullin, Joining Groups To Reduce Uncertainty: Subjective Uncertainty Reduction and Group Identification, in SOCIAL IDENTITY AND SOCIAL COGNITION 249 (Dominic Abrams & Michael A. Hogg eds., 1999). Rosenfeld's interviews uphold this theoretical account.
81. See ROSENFELD, supra note 26, at 29 (describing one interviewee who accepted stigma in exchange for knowing that she was not one of a kind).
82. This is typical for low-status groups. See Huddy, supra note 17, at 135 ("[O] ne option available to members of low-status groups, especially groups in which membership is permeable, is to deny one's group membership or identify with an alternative higher status group.").
83. ROSENFELD, supra note 26, at 63.
84. Cf. Huddy, supra note 17, at 139 ("[G] roup identification increases in strength with the sense that... group membership is voluntary.").
85. See infra Part IV.
86. See, e.g., ROSENFELD, supra note 26, at 64-67 (describing the affirming identity adopted through Radicalesbians, a group of radical lesbian feminists, and sexual liberation).
87. ALLAN BÉRUBÉ, COMING OUT UNDER FIRE: THE HISTORY OF GAY MEN AND WOMEN IN WORLD WAR TWO 244-79 (1990);
88. D'EMILIO, supra note 21, at 23-39;
89. ESKRIDGE, GAYLAW, supra note 2, at 59.
90. DONALD WEBSTER CORY, THE HOMOSEXUAL IN AMERICA: A SUBJECTIVE APPROACH (1951).
91. Id. at 5.
92. Barbara Gittings & Kay Lahusen, The Rabble Rousers, in MAKING HISTORY: THE STRUGGLE FOR GAY AND LESBIAN EQUAL RIGHTS, 1945-1990: AN ORAL HISTORY 104 (Eric Marcus ed., 1992).
93. Martin Duberman, in one of the few, and arguably the best, discussions of Sagarin's work, explains that while Harry Hay, the pioneering gay radical, himself often called the father of the movement, expressed the same notion that homosexuals were a minority, Sagarin's book was the first to give the "minority" concept wide circulation, becoming the cornerstone for identity or the "Ur-text" for politics in the gay movement. Martin Duberman, The "Father" of the Homophile Movement, in LEFT OUT: THE POLITICS OF EXCLUSION/ESSAYS/1964-1999,at 59, 68-69,71 (1999).
94. CORY, supra note 34, at 10-25 (basing his argument on the idea of stereotype and majority insecurity).
95. Id. at 228.
96. JAMES T. SEARS, BEHIND THE MASK OF THE MATTACHINE: THE HAL CALL CHRONICLES AND THE EARLY MOVEMENT FOR HOMOSEXUAL EMANCIPATION 151 (2006) ("The original founders of the Mattachine were Marxists and . . . were going to marry Marxism and homosexuality.");
97. STUART TIMMONS, THE TROUBLE WITH HARRY HAY: FOUNDER OF THE MODERN GAY MOVEMENT 144 (1990);
98. see also SEARS, supra, at 166 (illustrating the founding members' communist sympathies);
99. TIMMONS, supra, at 177 (same).
100. Interview by Jonathan Katz with Harry Hay (Mar. 31, 1974), in JONATHAN KATZ, GAY AMERICAN HISTORY: LESBIANS AND GAY MEN IN THE U.S.A. 410 (1976).
101. For the best overview, see D'EMILIO, supra note 21.
102. HARRY HAY, RADICALLY GAY: GAY LIBERATION IN THE WORDS OF ITS FOUNDER 40-43 (Will Roscoe ed., 1997).
103. TIMMONS, supra note 39, at 136;
104. see also id. at 151 (describing Hay's use of the analogy);
105. KATZ, supra note 40, at 409 (same).
106. D'EMILIO, supra note 21, at 75-81 (discussing the accusation, published in a Los Angeles newspaper, and the subsequent witchhunt).
107. Id. at 85;
108. see also SEARS, supra note 39, at 198.
109. Rowland had incited ire among the dissidents at a 1952 meeting, arguing that "[w]e must disenthrall ourselves of the idea that we differ only in our sexual directions and that all we want or need in life is to be free to seek the expression of our sexual desires .... [T] he fact is we are a minority with a minority culture ... and interests." SEARS, supra note 39, at 182 (quoting a 1952 speech of Chuck Rowland to the Mattachine Society).
110. TIMMONS, supra note 39, at 151;
111. cf. Toni M. Massaro, Gay Rights, Thick and Thin, 49 STAN. L. REV. 45, 47 (1996) (advocating, based on Romer v. Evans, 517 U.S. 620 (1996), a program of appealing to judges' empathy and rationality, rather than using "thick doctrinal arguments that alter existing legal categories, extend the upper echelon tiers of review, or construct gay rights as such").
112. At least, it did so in its legal arguments. See Meeker, supra note 27 (discussing, in contrast to D'Emilio, the radical activities of the Society in other areas). John Tehranian interestingly suggests that "[t]he availability of covering (and passing and conversion) strategies makes organization as a group less likely. . . . [T] he much wider latitude of covering options available to both the gay and Middle Eastern populations might explain why both groups have been relative latecomers to the civil rights movement."
113. John Tehranian, Selective Racialization: Middle-Eastern American Identity and the Faustian Pact with Whiteness, 40 CONN. L. REV. 1201, 1224 (2008).
114. Statements such as the following were typical: "The Lesbian . .. [has the] attributes of any other woman. . . . Her only difference lies in her choice of a love partner." Editorial, The Positive Approach, THE LADDER, NOV. 1956, at 8.
115. NEIL MILLER, OUT OF THE PAST: GAY AND LESBIAN HISTORY FROM 1869 TO THE PRESENT 337 (1995).
116. William Eskridge similarly notes that the first round of gay rights litigation relied on a politics of "protection," that is, on arguments that downplayed the minority status of gays. This approach is in contrast to the later use of a politics of "recognition" as a homophile minority that they later adopted. Eskridge, Some Effects, supra note 2, at 2161-69.
117. D'EMILIO, supra note 21, at 70-71.
118. ESKRIDGE, GAYLAW, supra note 2, at 87.
119. See The Law: A Discussion of Entrapment, ONE, Apr. 1954, at 7 (providing advice from ONE's legal counsel on the general entrapment defense).
120. Letter to the Editor, THE LADDER, May 1957, at. 20, 20-21 (calling for decriminalization of acts "privately indulged in by consenting adults and not involving the use of force or coercion, which do[] not involve a minor child and which do[] not violate any ordinance of private conduct," and recommending that readers remain "courteously inconspicuous");
121. Del Martin, Editorial, Open Letter to Assemblyman John A O'Connell, THE LADDER, Sept. 1958, at 5 (calling for the revision of sodomy laws).
122. The American Law Institute also revised its laws in 1955. MODEL PENAL CODE §207.5 cmt. (Tentative Draft No. 4,1955).
123. D'EMILIO, supra note 21, at 70. The reaction to the case and the increase in membership,
124. see id. at 75, may well have resulted in a different strategy had Hay been able to stay on. However, the Mattachine's deposing of Hay ensured a conservative legal strategy.
125. MARTIN DUPUIS, SAME-SEX MARRIAGE, LEGAL MOBILIZATION, & THE POLITICS OF RIGHTS 1718 (2002).
126. ESKRIDGE, GAYLAW, supra note 2, at 93-97;
127. Eskridge, Some Effects, supra note 2, at 2161-68.
128. See The Law of Mailable Material, ONE, Oct. 1954, at 4 (trying to quell fears of the early readers of the magazine who were worried that ONE was unlawful).
129. Petition for Writ of Certiorari at 7, ONE, Inc. v. Oleson, 355 U.S. 371 (1957) (No. 290).
130. Id. at 8.
131. Editorial, THE LADDER, June 1957, at 5,5 (emphasis altered).
132. See Petition for Writ of Certiorari, Robillard v. New York, 385 U.S. 928 (1966) (No. 447) (raising procedural objections to entrapment);
133. Petition for Writ of Certiorari, Poore v. Mayer, 379 U.S. 928 (1964) (No. 223) (raising arguments based on the Fourth Amendment search and seizure prohibitions);
134. Brief for Petitioner, Williams v. Zuckert, 371 U.S. 531 (1963) (No. 133) (raising procedural arguments);
135. Petition for Writ of Certiorari, Hudson v. Esperdy, 368 U.S. 918 (1961) (No. 382) (raising the procedural defense that moral turpitude in New York is an offense, not a crime, and therefore lacks necessary safeguards against erroneous conviction);
136. Petition for a Writ of Certiorari at 13-14, Shields v. Sharp, 366 U.S. 917 (1961) (No. 773) (denying charges and claiming failure to comply with required procedures such as disclosure of evidence to the accused (citing Greene v. McElroy, 360 U.S. 474 (1959)));
137. Petition for Writ of Certiorari, Ganduxe y Marino v. Esperdy, 364 U.S. 824 (1960) (No. 224) (denying homosexuality, but primarily raising procedural arguments).
138. See Boutilier v. INS, 387 U.S. 118 (1967) ;
139. Manual Enters, v. Day, 370 U.S. 478 (1962).
140. Womack v. United States, 294 F.2d 204 (D.C. Cir. 1961);
141. see Rodger Streitmatter & John C Watson, Herman Lynn Womack: Pomographer as First Amendment Pioneer, 28 JOURNALISM HIST. 56 (2002).
142. Cf. Womack, 294 F.2d at 205;
143. Brief of the United States in Opposition at 4, Womack, 365 U.S. 859 (No. 717) ("[W]e don't have to kid each other, we know who is interested in magazines and pictures of that type ... homosexuals.").
144. Petition for Writ of Certiorari at 11, Womack, 365 U.S. 859 (No. 717) (arguing that the government in a "prejudicial maneuver" "twisted" certain "letters... to throw a homosexual issue into the case which the petitioner was forced to answer").
145. Id. at 12.
146. Brief of Appellant at 16, Manual Enters., 370 U.S. 478 (No. 123) (emphasis added).
147. Id. (citing ALFRED KINSEY, SEXUAL BEHAVIOR IN THE HUMAN MALE 616-17 (1948)).
148. Id. at 28;
149. see also Petition for Writ of Certiorari, supra note 66, at 8 (referring to Womack's other bodybuilding magazines).
150. Brief of Appellant, supra note 68, at 29.
151. Id. at 28.
152. 387 U.S. 118(1967).
153. See Canaday, supra note 25.
154. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, §212(a)(4), 66 Stat. 163,182 (repealed 1990).
155. JOYCE MURDOCH & DEB PRICE, COURTING JUSTICE : GAY MEN AND LESBIANS V. THE SUPREME COURT 105 (2001).
156. Boutilier v. INS, 363 F.2d 488 (2d Cir. 1966).
157. 302 F.2d 652 (9th Cir. 1962).
158. Rosenberg v. Fleuti, 374 U.S. 449 (1963).
159. Petition for Writ of Certiorari at 4,10, Boutilier, 387 U.S. 118 (No. 440).
160. Canaday, supra note 25, at 369, 373.
161. Petition for Writ of Certiorari, supra note 80, at 5-7.
162. Id.
163. Id. at 33-35.
164. Fleuti v. Rosenberg, 302 F.2d 652, 656 (9th. Cir. 1962).
165. Id.
166. Petition for Writ of Certiorari, supra note 80, at 9;
167. see also id. at 6 ("There is no indication by either the respondent or the [lower] court what is meant by a homosexual; whether it includes one who engages in both, homosexual and heterosexual acts as the petitioner did . . . whether it applies to someone who has engaged in it once in his life, once a year, four times a year, or constantly....").
168. FOUCAULT, supra note 13, at 42-43. For examples of commentators quoting these pages,
169. see Janet E. Halley, Reasoning About Sodomy: Act and Identity in and After Bowers v. Hardwick, 79 VA. L. REV. 1721, 1739 (1993);
170. and Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 777 (1989).
171. See also Halley, supra note 14, at 140 n.2 ("[Q]ueer theory is . . . unimaginable without... The History of Sexuality.").
172. NanD. Hunter, Identity, Speech, and Equality, 79 VA.L. REV. 1695, 1698 (1993).
173. For more ou how these constructions did ultimately control sexuality, see JAY HATHEWAY, THE GILDED AGE CONSTRUCTION OF MODERN AMERICAN HOMOPHOBIA (2003);
174. EILA J. RUPP, A DESIRED PAST: A SHORT HISTORY OF SAME-SEX LOVE IN AMERICA 79-129 (1999);
175. and sources cited supra note 21.
176. William Eskridge notes that "[t]he Jennings case is the only one [he] ha[s] found where the defendant won with an entrapment defense...." ESKRIDGE, GAYLAW, supra note 2, at 88.
177. Id.
178. While not presented as part of an act-identity dynamic, Eskridge provides several such examples. Id. at 89-92.
179. Id.
180. See Canaday, supra note 25, at 377 ("In the final view of the Court, homosexuals were a type of people, not a set of free-floating practices from which no conclusions about identity could be drawn.");
181. Hunter, supra note 89, at 1698 (describing the shift "from a brain disease model to a developmental personality model" in the military and Congress).
182. Notably, Justice Douglas's dissent, while quoting Kinsey and appearing to problematize the notion that homosexuals comprised a distinct group on one hand, also unproblematically referred to the homosexual as "the product of an arrested development." Boutilier v. INS, 387 U.S. 118, 127 (1967) (Douglas, J., dissenting). The resulting, very confused, opinion left commentators with the impression that "he kept finding quotes that he wanted to slap into his work." MURDOCH & PRICE, supra note 76, at 123;
183. see also id. at 123-30 (describing the many contradictory quotes and views Justice Douglas took in earlier drafts).
184. SR96. MURDOCH & PRICE, supra note 76, at43.
185. Id. at 42-44 (discussing a memo from Justice Douglas's law clerk).
186. Id. at 43 (emphasis added). This by itself, though, would be insufficient to make the magazine "obscene."
187. Id.
188. Id. Similarly, the lower court's opinion identified a "particular group of individuals constituting a small segment of the population [whose] ... moral standards are far below those of the general community. Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority." ONE, Inc. v. Olesen, 241 F.2d 772, 777 (9th Cir. 1957).
189. Readers Respond, THE LADDER, May 1957, at 27.
190. Id.
191. Id. She ends widi the Utopian vision, "I have long since passed diat period when I felt personal discomfort at the sight of an ill-dressed or illiterate Negro. .. . Someday, I expect the 'discreet' Lesbian will not turn her head on the streets at the sight of die 'butch' strolling hand in hand with her friend in their trousers.... [F]or the moment, it still disturbs."
192. Id.
193. See Mayeri, supra note 12.
194. See id. at 1052-53.
195. In fact, as Mayeri describes, die race-sex analogy was made as far back as the antebellum period. See id. at 1052-55.
196. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470 (2004) (discussing the lack of formal doctrinal criteria to identify appropriate minority groups).
197. Eskridge, Some Effects, supra note 2, at 2169.
198. Petition for a Writ of Certiorari at47, Kameny v. Brucker, 365 U.S. 843 (1961) (No. 01-676).
199. The debate about whether it was desirable for blacks themselves to proclaim a separate black identity-nationally and internationally-was ongoing even as these developments took place. For example, criticizing the "Negritude" movement, an attempt by members of the Pan-African Congress to develop a distinct black identity, Wole Soyinka wrote, "A tiger does not proclaim its tigritude, he pounces."JANHEINZ JAHN, A HISTORY OF NEO-AFRICAN LITERATURE 265-66 (Oliver Coburn & Ursula Lehrburger trans., 1968).
200. Petition for a Writ of Certiorari, supra note 108, at 14-15.
201. Id. at 19-25.
202. Id. at 26.
203. Such subjective perspectives were rare in self-presentations of gays to outsiders. See BÉRUB.É, supra note 33, at 209-10, for some of the earliest such presentations to army interrogators.
204. Petition for a Writ of Certiorari, supra note 108, at 26-30.
205. Id. at 36.
206. Id. at 36-37 (emphasis added).
207. Id. at 37.
208. Id. at 38.
209. Id. at 55.
210. Eskridge, Some Effects, supra note 2, at 2161-69.
211. Siegel, supra note 106, at 1484-89.
212. 357 U.S. 449 (1958).
213. 372 U.S. 539, 557-58 (1963).
214. Eskridge, Challenging, supra note 2, at 866. The Johns Committee (formally the Florida Legislative Investigation Committee) was a committee of the Florida Legislature established in 1956. Like the U.S. Senate Permanent Subcommittee on Investigations chaired by Senator McCarthy, the purpose of the Johns Committee was to target communists, homosexuals, and subversives in state government, public education, and elsewhere.
215. See Michael Gannon, The Reubin O'D. Askew Inst., Crises That Have Faced Florida from Statehood in 1845 to the Present, in DEMOCRACY AND THE ECONOMY IN FLORIDA AT A TIME OF CRISIS 6,8-9 (2002).
216. Eskridge, Challenging, supra note 2, at 866 11.211.
217. Cf. Mayeri, supra note 12, at 1067-68, 1070 (discussing
218. Eskridge, Challenging, supra note 2, at 830-31.
219. See id. at 832-36.
220. See, e.g., ACLU OF GA., POLICE PROCEDURES IN ATLANTA (1966) (on file with author).
221. Duberman, supra note 36, at 61;
222. see also Stephen O. Murray, Donald Webster Cory (1913-1986), in BEFORE STONEWALL: ACTIVISTS FOR GAY AND LESBIAN RIGHTS IN HISTORICAL CONTEXT 333, 336 (Vern L. Bullough ed., 2002) (discussing Cory's numerous affairs with African-Americans, which some have concluded made him especially sensitive to their plight).
223. ROBERT H. KINZER & EDWARD SAGARIN, THE NEGRO IN AMERICAN BUSINESS : THE CONFLICT BETWEEN SEPARATION AND INTEGRATION (1950);
224. Duberman, supra note 36, at 66;
225. Murray, supra note 130, at 334. The book shows familiarity with analogizing blacks to other minorities, among other characteristics that would appear in Cory/Sagarin's book the following year.
226. See, e.g., KINZER & SAGARIN, supra, at 135-36.
227. See infra Section III.C
228. See Siegel, supra note 106, at 1484-89.
229. Petition for a Writ of Certiorari, supra note 108, at 51.
230. 135- Franklin E. Kameny, Does Research into Homosexuality Matter?, THE LADDER, May 1965, at 14 (emphasis altered).
231. Id. at 18. Thus, ironically, before the Court was persuaded by arguments presented in Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion), that immutability should be made an issue, Kameny was arguing precisely for the irrelevance of immutability of the single defining characteristic of a group.
232. Id. at 19.
233. Florence Conrad, Research Is Here To Stay, THE LADDER, July-Aug. 1965, at 15.
234. Id. at 21.
235. Franklin E. Kameny, Emphasis on Research Has Had Its Day, THE LADDER, Oct. 1965, at 10, 12-13 (emphasis added). In full, Kameny's assertion was, The Negro's claim to equality-which incidentally I accept wholeheartedly-is not nearly as well bolstered by research findings as Miss Conrad implies. This is not to say that research findings show inequality, just that not nearly as much research has been done to show equality as most people believe. What has been done is a superb job of 'selling' !
236. Id. Kameny was specifically responding to others in the movement who objected to his methods. Kameny here arguably anticipates Sedgwick's movement of the debate from constructionism/essentialism (that is, the causes of identity) to universalizing/minoritizing models. SEDGWICK, supra note 17, at 40.
237. Kameny, supra note 140, at 11.
238. KAY TOBIN & RANDY WICKER, THE GAY CRUSADERS 89 (1972) ;
239. Eskridge, Channeling, supra note 2, at 470;
240. see also Claud Anderson & Rue L. Cromwell, "Black Is Beautiful" and the Color Preferences of Afro-American Youth, 46 J. NEGRO EDUC. 76 (1977) (studying how the "Black is Beautiful" slogan affected perceptions within die African-American community).
241. Franklin E. Kameny, Speech to the Mattachine Society of Washington 2 (May 1, 1964) (on file with author).
242. Manuela Soares, The Purloined Ladder: Its Place in Lesbian History, 34 J. HOMOSEXUALITY 27, 38 (1998) (quoting Interview by Manuela Soares with Barbara Gittings, in Phila., Pa. (1988)).
243. See ROXANNA THAYER SWEET, POLITICAL AND SOCIAL ACTION IN HOMOPHILE ORGANIZATIONS 63 (1975) ("[L]eaders and members of the [homophile] organizations belong to a wide variety of other organizations dedicated to . . . the advancement of some oppressed minority . . . ." (citations and quotations omitted));
244. id. at 121-22 (noting how organizations founded to prevent police abuse of gays most often helped racial minorities) ;
245. see also D'EMILIO, supra note 21, at. 172 (noting the civil rights connections of early gay rights mobilizers).
246. Eckstein, in fact, had worked at the NAACP. Id.
247. See ELIZABETH A. ARMSTRONG, FORGING GAY IDENTITIES: ORGANIZING SEXUALITY IN SAN FRANCISCO, 1950-1994, at 46;
248. id. at 52 (charting the growth of identity-based homophile organizations in this period);
249. SWEET, supra note 145, at 45 ("[O]lder organizations, which pioneered in the formation of the movement, were forced to change to fit in with the new ideas, or they ceased to receive die active support. . . of homosexuals."). Other methods of organization and communication were also borrowed from the racial justice movement. Direct action and confrontational methods, for example, while less direcly connected to the law, also affected gay self-perception as a minority group.
250. See ALTMAN, supra note 26, at 117-62. Elizabeth Armstrong and Steven Seidman suggest that these direct action, sexual liberation models sought identity-disrupting paradigms.
251. Elizabeth. Armstrong, Crisis Collective Creativity and the Generation of New Organizational Forms, in 19 RESEARCH IN THE SOCIOLOGY OF ORGANIZATIONS 361,369,372, 383 (Michael Lounsbury & Marc J. Ventresca eds., 2002);
252. Steven Seidman, Identity and Politics in a "Postmodern" Gay Culture: Some Historical and Conceptual Notes, in FEAR OF A QUEER PLANET 105, 110 (Michael Warner ed., 1993). The accounts of Altman and Sweet, however, suggest diat many of the direct action models relied upon the race analogy and upon identity-affirming paradigms such as Black Power (this despite the fact that Altman's own project wished to disrupt identity).
253. See ALTMAN, supra note 26, at 128,140-41 ;
254. SWEET, supra note 145, at 64;
255. see also Jeffrey Escoffier, Sexual Revolution and the Politics of Gay Identity, SOCIALIST REV., July-Oct. 1985, at 119, 145, 149 (pointing to "public identity" as a basis of die liberation movement and to the "internal conflict[s]" within the movement-between identity affirmation and disruption-that other audiors ignore).
256. CONST, OF THE MATTACHINE SOC'Y OF WASH. (MSW) (1963) (emphasis added) (on file with author).
257. The Appellate Division denied its application for incorporation in 1972, but the Court of Appeals reversed in 1973. In re Thorn, 301 N.E.2d 542 (N.Y. 1973), rev'g 337 N.Y.S.2d 588 (App. Div. 1972).
258. JUDITH A. CAIN, RAINBOW RIGHTS : THE ROLE OF LAWYERS AND COURTS IN THE LESBIAN AND GAY CIVIL RIGHTS MOVEMENT 60 (2000).
259. Brief for Lambda Legal Defense and Education Fund, Inc. as Amicus Curiae, in Support of Petition for Certiorari at 2, Ensliii v. North Carolina, 425 U.S. 903 (1975) (No. 75-897);
260. see also Thorn, 301 N.E.2d at 545 (noting that Lambda's petition was "substantially identical to that of Puerto Rican Defense Fund").
261. Sweet notes that activist gays in San Francisco, for example, had begun to define themselves as "members of a minority group" analogous to racial groups during this period. SWEET, supra note 145, at 47.
262. CAIN, supra note 149, at 55-56.
263. Elisabeth S. Clemens, Organizational Repertoires and Institutional Change: Women's Groups and the Transformation of U.S. Politics, 1890-1920, 98 AM. J. SOC. 755, 770-71 (1993);
264. see also Robin Stryker, A Political Approach to Organizations and Institutions, in 19 RESEARCH IN THE SOCIOLOGY OF ORGANIZATIONS 169,179-80 (Michael Lounsbury & Marc J. Ventresca eds., 2002) (describing how activists mobilize institutional models "as a symbolic resource").
265. Robert Rabin points to contemporary law journal discussion of public interest law, which "heralded . . . 'public interest lawyer[s]' ... as an encouraging manifestation of social consciousness among young attorneys as well as a healthy antidote to the ills of the pluralistic political system." Robert L. Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 STAN. L. REV. 207, 208 (1976).
266. Yves Dezalay and Bryant Garth, along with Ann Southworth, also point to the symbolic message of public interest lawyering, in other contexts. Yves Dezalay & Bryant G. Garth, Constructing Law out of Power: Investing in Human Rights as an Alternative Political Strategy, in CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA 354 (Austin Sarat & Stuart Scheingold eds., 2001);
267. Ann Southworth, Conservative Lawyers and the Contest over the Meaning of "Public Interest Law," 52 UCLA L. REV. 1223, 1252 (2005).
268. Clemens, supra note 153, at 770.
269. This was seen in the legal battle over the approval of Lambda Legal's charter, where the analogy to the Puerto Rican Defense Fund drew the ire of the Appellate Division of the New York. State Supreme Court. CAIN, supra note 149, at 60.
270. ARMSTRONG, supra note 146, at 53-54.
271. ROSENFELD, supra note 26, at 63. While Rosenfeld does mention one exception where another individual developed an " accredited" identity through interaction with die civil rights movement in the 1950s and analogized himself to the oppressed blacks of his acquaintance,
272. id. at 68, 70, she notes the irrelevance of this individual perspective for the collective identity of the group,
273. id. at 72. Sweet, whose work was written in 1968, SWEET, supra note 145, at i, dates the "'homophile movement'"to 1964-1965, when gays "increasingly began to define themselves as members of a minority group [comparable to] odier minority groups of ethnic or racial bases,"
274. id. at 45.
275. ROSENFELD, supra note 26, at 68,70.
276. Mayeri, supra note 12, at 1076-77 ("[R] acial analogies became hazardous to feminists when the racial baseline legal remedy did not comport with their conception of appropriate remedies for sex discrimination in a particular case. . . . [ACLU Women's Rights Project (WRP)] briefs [in 1970s cases after Frontiero] relied upon arguments independent of the race parallel, stressing the Supreme Court's new sex discrimination jurisprudence without making an explicit bid for the recognition of sex as a suspect classification.").
277. 404 U.S. 71 (1971).
278. Mayeri, supra note 12, at 1075.
279. See Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
280. Note, The Legality of Homosexual Marriage, 82 YALE L.J. 573 (1973).
281. Reva Siegel identifies the authors of the note as S.T. Perkins and A.J. Silverstein. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA, 94 CAL. L. REV. 1323,1400 n.232 (2006).
282. Arthur J. Silverstein, Comment, Constitutional Aspects of the Homosexual's Right to a Marriage License, 12 J. FAM. L. 607 (1972-1973).
283. Note, supra note 164, at 575;
284. Silverstein, supra note 165, at 611-15.
285. This is so even though they were unsure what the criteria would be. The Yale Law Journal note explains, "The Supreme Court has never explicated its grounds for declaring certain classifications to be inherently suspect," and instead based its analysis on Justice Marshall's dissent from Dandridge v. Williams, 397 U.S. 471, 520-21 (1970) (Marshall, J., dissenting).
286. Note, supra note 164, at 575. The brief in an early marriage case appears to agree with the Perkins and Silverstein analysis: "the analysis presented here involves a mixing of bodi due process and equal protection doctrines. As they are applied ... in this case ... they tend to merge." Jurisdictional Statement for Appellants at 12, Baker v. Nelson, 409 U.S. 810 (1972) (No. 71-1027);
287. see also Silverstein, supra note 164, at 611 ("[T] he Supreme Court has not been explicit as to its ground for labeling classifications as suspect.").
288. See supra Section III.B.
289. See supra note 163.
290. The cases in which this has occurred are too numerous to mention here. Articles that fully explore the argument for sexual orientation as a suspect class include Renee Culverhouse & Christine Lewis, Homosexuality as a Suspect Class, 34 S. TEX. L. REV. 205 (1993) ;
291. Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237 (1996);
292. Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753 (1996);
293. Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 HARV. L. REV..1285 (1985);
294. and Harris M.. Miller II, Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S. CAL. L. REV. 797 (1984).
295. In addition to the brief in Nelson, see Jurisdictional Statement, supra note 167,
296. and the petitioners' brief in Enslin, see Petition for Writ of Certiotrari, Enslin v. North Carolina, 425 U.S. 903 (1975) (No. 75-897) (standing in contrast to the Lambda amicus,
297. see supra note 150), see also Petition for Writ of Certiorari, Singer v. U.S. Civil Serv. Comm'n, 429 U.S.
298. 1034 (1976) (No. 75-1459); Petition for Writ of Certiorari, McConnell v. Anderson, 405 U.S. 1046 (1972) (No. 71-978);
299. Petition for Writ of Certiorari, Adams v. Laird, 397 U.S. 1039 (1970) (No. 1258) ; and Petition for Writ of Certiorari, Schlegel v. United States, 397 U.S. 1039 (1970) (No. 1257) [Hereinafter Schlegel Cert Petition].
300. The Nelson and Schlegel briefs in fact use the same language. Jurisdictional Statement, supra note 167, at 8-9; Schlegel Cert Petition, supra note 171, at 6-7.
301. Jurisdictional Statement, supra note 167, at 8 (emphasis added).
302. Id. at 8-10.
303. It is mentioned once more in a footnote to explain that even strict scrutiny is not "fatal in fact." United States v. Virginia, 518 U.S. 515, 532 n.6 (1996) (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237 (1995)).
304. Id. at 525 ("[I]t is extremely important that [colleges and universities] deal with faculty, staff, and students without regard to sex, race, or ethnic origin." (quoting United States v. Virginia, 976 F.2d 890, 899 (4th Cir. 1992) (alterations in original) (internal quotation marks omitted)).
305. The disanalogy is based on "inherent differences" which exist between the sexes. Id. at 533 (internal quotation marks omitted).
306. See, e.g., Geduldig v. Aiello, 417 U.S. 484 (1974) (holding that pregnancy discrimination is not the same as sex discrimination); Roe v. Wade, 410 U.S. 113 (1973);
307. Mayeri, supra note 12, at 1078 & n.160 (discussing Geduldig).
308. See, e.g., Reva B. Siegel, Siegel, J., Concurring, in WHAT ROE V. WADE SHOULD HAVE SAID 63 (Jack M. Balkin ed., 2005).
309. Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting) (citing Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1002-28 (1984);
310. and Reva Siegel, Reasoningfrom the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992)).
311. See, for example, the reliance on histories of discrimination, supra note 172, to characterize gays as a group.
312. Most recently, see, for example, In re Marriage Cases, 183 P.3d 384 (Cal. 2008);
313. and Kerrigan v. Comm'r of Pub. Health, 957A.2d407 (Conn. 2008).
314. The Proposition 8 debate indicates this point.
315. See Eskridge, Channeling, supra note 2, at 827.
316. KATZ, supra note 40, at 394.
317. E.B. Saunders, Reformer's Choice: Marriage License or Just License?, ONE, Aug. 1953, at 10,12.
318. Id. at 12.
319. Id. at 11.
320. Letter to the Editor, ONE, Oct. 1953, at 11.
321. Letter to the Editor, ONE, Oct. 1953, at 13, 15;
322. Letter to the Editor, ONE, Nov. 1953, at 19;
323. Letter to the Editor, ONE, Nov. 1953, at 21, 2.1-22;
324. The 3rd Choice, ONE, Apr. 1954, at 4,4-6.
325. Del Martin, Me vs. Insurance, THE LADDER, June 1958, at 12;
326. Report on Social Service, ONE, Feb. 1955, at 17;
327. Helen Sanders, Me vs. Taxes, THE LADDER, May 1958, at 10.
328. Homosexual Bill of Rights Sizzles and Fizzles, THE LADDER, Mar. 1961, at. 8, 11, 18.
329. Pauli Murray, The Liberation of Black Women, in AMERICAN IDENTITIES: AN INTRODUCTORY TEXTBOOK 187,188 (Lois P. Rudnick et al. eds., 2006).
330. Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419, 1439-40, 1470-71 (1991) (noting that unlike white women, "[w]omen of color . . . often experience the family as the site of solace and resistance against racial oppression") ;
331. see also Mayeri, supra note 12, at 1075 ("Unlike the employment and jury service contexts, where race and sex discrimination overlapped in concrete, practical ways, discriminatory estate administration policies and spousal military benefits had no immediately evident racial counterparts.").
332. See Diane K. Lewis, A Response to Inequality: Black Women, Radsm, and Sexism, 3 SIGNS 339, 341-43, 349 (1977);
333. see also Constance M. Carroll, Three's a Crowd: The Dilemma of the Black Woman in Higher Education, in ACADEMIC WOMEN ON THE MOVE 173 (Alice S. Rossi & Ann Calderwood eds., 1973).
334. Cf. Susan Okin, Is Multiculturalism Bad for Women, in IS MULTICULTURALISM BAD FOR WOMEN 7, 21-22 (Susan Okin ed., 1999) (explaining why using the "private sphere" to enable multiculturalism is problematic for women's equality);
335. Reva B. Siegel, "The Rule Of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2150-74 (1995) (explaining how legal reform in wife beating was undermined by a privacy dynamic).
336. See, e.g., Perez v. Sharp, 198 P.2d 17 (Cal. 1948).
337. See Report on Social Service, supra note 191, at 17.
338. Id. at 1061-62.
339. Id. at 1064-65.
340. Id. at 1066.
341. Id. at 1071.
342. ACLU, Tribute: The Legacy of Ruth Bader Ginsburg and WRP Staff (Mar. 7, 2006), http://www.aclu.org/womensrights/gen/24412pub20060307.html.
343. Brief for Appellant, Reed v. Reed, 404 U.S. 71 (1970) (No. 70-4);
344. Brief for the National Federation of Business and Professional Women's Clubs as Amicus Curiae Supporting Appellant at 8, Reed, 404 U.S. 71 (No. 70-4) ("[S]ex discrimination takes an even greater economic toll than racial discrimination.");
345. Brief of the City of New York as Amicus at 16, Reed, 404 U.S 71 (No. 70-4) ("[T]he net effect of sexual, like racial classifications is the same.");
346. Joint Brief of Amici Curiae American Veterans Committee and NOW Legal Defense & Education Fund at 10-12, Reed, 404 U.S. 71 (No. 70-4) ("Because sex and race discrimination are so similarly based and motivated, they deserve similar constitutional scrutiny and treatment."). For a full discussion, see Mayeri, supra note 12, at 1073.
347. See Hearings Before the S. Comm. on the Judiciary on S.J. Res. 61 and S.J. Res. 231, 91st Cong. 74-75 (1970) (statement of Professor Paul A. Freund) ;
348. Mary Eastwood, The Double Standard of Justice: Women's Rights Under the Constitution, 5 VAL. U. L. REV. 281, 313 (1971);
349. Rita E. Hauser, Address at the Annual Meeting of the American Bar Association (Aug. 10, 1970), in Symposia: Edited Proceedings of the Annual Meeting Program of the Section of Individual Rights and Responsibilities, HUM. RTS., July 1971, at 54, 62 ("I also believe that the proposed Amendment, if adopted, would void the legal requirement or practice of the states' limiting marriage, which is a legal right, to partners of different sexes.").
350. 388 U.S. l (1967).
351. See supra note 206.
352. Stark was also Board President and later the Executive Director of the Minnesota ACLU. The National ACLU rejected Stark's proposal, but the MCLU went forward. Telephone Interview with Matthew Stark (Apr. 21, 2009).
353. Ariela R. Dubler, From McLaughlin v. Florida to Lawrence v. Texas: Sexual Freedom and the Road to Marriage, 106 COLUM. L. REV. 1165, 1179-80 (2006).
354. 379 U.S. 184 (1964).
355. This incremental litigation, often though not always aimed to attain marriage, was suggested by later commentators. See Craig W. Christensen, If Not Marriage? On Securing Gay and Lesbian Family Values by a "Simulacrum of Marriage," 66 FORDHAM L. REV. 1699, 1711 (1997) (detailing similar calls for gradualism, though not always to gain marriage); Cass R. Sunstein, Homosexuality and the Constitution, 70 IND. L.J. 1, 27 (1994) (calling for gradualism in the marriage-seeking process).
356. Stark notes that after all these years, the race analogy issue "melded" in his mind with the more tangible benefits of marriage in the litigation. Telephone Interview with Matthew Stark, supra note 209.
357. Jones v. Hallaban, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). Anonymous v. Anonymous, 325 N.Y.S.2d 449 (Sup. Ct. 1971), was only heard at the trial court level and was not a consensual same-sex marriage: die plaintiff had been unaware of his partner's sex.
358. In addition to Note, supra note 164;
359. and Silverstein, supra note 165,
360. see also James W. Harper & George M. Clifton, Heterosexuality; A Prerequisite to Marriage in Texas?, 14 S. TEX. L. REV. 220 (1972), which primarily addresses the voidability of a mistakenly performed same-sex marriage and considers the issue of what constitutes marriage from a policy and law-as-preference-shaping perspective;
361. and Ian McColl Kennedy, Transsexualism and Single Sex Marriage, 2.ANGLO-AM. L. REV. 112 (1973), which discusses gay marriage from a policy perspective. Other law review articles diat followed, such as Catherine M. Cullem, Note, Fundamental Interests and the Question of Same-Sex Marriage, 15 TULSA L.J. 141 (1979);
362. Case Comment, Homosexual "Marriage": The Definition of Marriage Precludes Permitting Marriage of Same-Sex Couples. Singer v. Hara, 11 Wn. App. 247, 522 P.2d 1187, cert, denied, 84 Wn. 2d 1008 (1974), 10 GONZ. L. REV. 292 (1974);
363. Comment, Homosexuals' Right To Marry: A Constitutional Test and a Legislative Solution, 128 U. PA. L. REV. 193 (1979);
364. and Leo Sullivan, Note, Same Sex Marriage and the Constitution, 6 U.C. DAVIS L. REV. 275 (1973), rely upon the criteria for suspect scrutiny that the Court announced in Frontiero v. Richardson, 411 U.S. 677 (1973);
365. and San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), which were unavailable to those who filed their lawsuits in 1971 and 1972 and are therefore irrelevant for a discussion of their strategies.
366. Jurisdictional Statement, supra note 167.
367. See Yoshino, Covering, supra note 2, at 848 & n.426. See also Katherine Franke's "fear[s] that Lawrence and . . . gay rights organizing . . . have created a path dependency that privileges privatized and domesticated rights . . . while rendering less viable projects that advance nonnormative notions of kinship, intimacy, and sexuality." Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399, 1414 (2004). She suggests that "Lawrence offers us no tools to investigate 'kinds of intimacy [and sex] that bear no necessary relation to domestic space, to kinship, to the couple form, to property, or to the nation.'" Id. at 1416 (alteration in original) (quoting Lauren Berlant & Michael Warner, Sex in Public, 24 CRITICAL INQUIRY 547, 558 (1998)).
368. Deborah A. Widiss, Elizabeth L. Rosenblatt & Douglas NeJaime, Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 HARV. J.L. & GENDER 461, 473 (2007) (describing efforts in Hawaii, Massachusetts, and California).
369. In Singer, a state ERA had actually been passed. Commentators who opposed the Washington state ERA did raise die specter of gay marriage, a fact that the plaintiffs raised in their case as evidence of legislative intent favorable to gay marriage. The Washington Supreme Court rejected their argument. Singer, 522 P.2d at 1190-91 & 11.5.
370. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971); Hernandez v. Robles, 855 N.E.2d 1, 28 (N.Y. 2006); Singer, 522 P.2d at 1187.
371. Readers will note that I do not discuss two recent cases in which gay activists gained heightened equal, protection scrutiny, namely In re Marriage Cases, 183 P.3d 384 (Cal. 2008), and Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008), as these cases rely on the "legal categorical abstractions" of doctrine referred to earlier, rather than upon the race analogy per se. I also do not detail recent marriage cases that do not add to the argument of this Note;
372. for them, see Widiss et al., supra note 218, at 461.
373. Siegel, supra note 106, at 1513-32 (describing the contemporary "[constructing [of] an [a]nticlassification [p]rinciple");
374. see also, e.g., Michael C. Dorf, Equal Protection Incorporation, 88 VA. L. REV. 951, 1009 (2002) ("Current Supreme Court doctrine understands equal protection as an antidiscrimination principle rather than an antisubordination principle . . . .");
375. Neil Gotanda, A Critique of "Our Constitution Is ColorBlind, " 44 STAN. L. REV. 1, 37 (1991) ("The modem Court has moved away from... notions of race that recognize die diverging historical experiences of Black and white Americans .... In place of these concepts, the Court relies increasingly on the formal-race concept of race, a vision of race as unconnected to the historical reality of Black oppression."). But subliminally, antisubordination concerns may still lie at the heart of the issue. See Siegel, supra note 106, at 1538-44.
376. See Mary Anne Case, "The Very Stereotype the Law Condemns": Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 CORNELL L. REV. 1447, 1449-50 (2000); Widiss et al., supra note 218, at 486-87.
377. Cf. Widiss et al., supra note 218, at 462 (describing the arguments).
378. Id.
379. Id. at 462, 479-84.
380. 855 N.E.2d 1, 11 (N.Y. 2006).
381. 744 A.2d 864, 880 n.13 (Vt. 1999).
382. Id. at 887 (arguing that Loving showed subordination of a sort not demonstrated in the case).
383. Katherine Franke suggests that the focus on marriage in the African-American rights movement, accompanied with a rejection of the radically different kinship structures which resulted from slavery, was strategic:
384. Many African-American leaders were quite aware that white northerners and southerners alike used marriage as a barometer of their people's fitness for freedom, and they urged poor blacks to adopt the domestic patterns common among elite whites. This, they argued, would help convince the nation that exslaves deserved the rights and privileges of freedom.
385. Franke, supra note 217, at 1422 (quoting LAURA F. EDWARDS, GENDERED STRIFE AND CONFUSION: THE POLITICAL CULTURE OF RECONSTRUCTION 56 (1997)). Indeed, "it was not uncommon for 'respectable' members of the community to turn in their erring brothers and sisters to white legal authorities if they were known to be cohabitating without marrying, maintaining more than one spouse, or violating the obligations of marital monogamy." Id. at 1423.
386. See, e.g., Dubler, supra note 210, at 1169 (discussing the orientation toward Loving and away from McLaughlin as evidence of "law's generally myopic view of marriage as the only form of sexual intimacy tied to one's place in the public, constitutional order"); id. at 1180. Tucker Culbertson argues that Loving was wrongly decided because instead of destroying marriage, it simply modified it. Tucker Culbertson, Arguments Against Marriage Equality: Commemorating & Reconstructing Loving v. Virginia, 85 WASH. U. L. REV. 575 (2007). He argues:
387. [T]he Supreme Court should have condemned Virginia's homoracial Heterosexual civil marriage laws as an infringement not upon the fundamental right to many, but rather upon the Lovings' rights to the ends of marriage-such as erotic pleasures and communities of care, which for ease I refer to as the rights to sex and family. Doing so would avoid the nearsighted and naturalizing defense of marriage as such, which mistakes a governmental means for a constitutional end, and thus perpetuates and legitimates discrimination against those whose forms of sex and family remain unrecognized and/or prohibited by civil marriage regimes.
388. Id. at 577.
389. Singer v. Hara, 522 P.2d 1187, 1192 (Wash. Ct. App. 1974).
390. Id.
391. Id. at 1192 n.8. Certainly, marriage between whites and blacks was recognized as interracial marriage, however illegitimate, for centuries. See Peter W. Bardaglio, "Shamefull Matches": The Regulation of Interracial Sex and Marriage in the South Before 1900, in SEX, LOVE, RACE 112, 114 (Martha Hodes ed., 1999) (noting the rare existence of interracial marriages in the seventeendi century). The question as to whedier these were marriages appears never to have been raised.
392. 855 N.B.2d. 1, 8 (N.Y. 2oo6). Few other unsympathetic courts explain die differentiation from Loving. Nelson simply stated that "there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." 191 N.W.2d, 185, 187 (Minn. 1971).
393. Similarly, Andersen v. King County relies on the fact that most other states had rejected the race analogy, 138 P.3d 963, 977 (Wash. 2006), and on Nelson and Baker v. State, id. at 989, for its rejection of the equal protection (as distinguished from due process) analogy to Loving. Jones v. Hallahan, 501 S.W.2d 583 (Ky. 1973), did not discuss the analogy. Lewis v. Harris, 908 A.2d 196, 210 (N.J. 2006), merely refers us to the "fact-specific background" of Loving. Other grounds that have been identified include the lack of intent to discriminate based on sex.
394. See Conaway v. Deane, 932 A.2d 571, 601-02 (Md. 2007);
395. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 975 (Mass. 2003) (Spina, J., dissenting); Baker v. State, 744 A.2d, 864, 880 n.13 (Vt. 1999); Craig M. Bradley, The Right Not To Endorse Gay Rights: A Reply to Sunstein, 70 IND. L.J. 29, 32-33 (1994).
396. Appellate courts have generally denied heightened scrutiny for gays. See, e.g., Equality Found, of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) (denying heightened scrutiny), rev'g 860 F. Supp. 417 (S.D. Ohio 1994);
397. Jantz v. Muci, 976 F.2d 623 (10th Cir. 1992) (same), rev'g 759 F. Supp. 1543, 1545 (D. Kan. 1991); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (same), rev'g 668 F. Supp. 1361 (N.D. Cal. 1987);
398. Watkins v. U.S. Army, 847 F.2d 1329 (9th Cir. 1988) (according sexual orientation heightened scrutiny), vacated and affd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc).
399. The brief for the respondent in Bowers concentrates completely on the due process argument, invoking the backing of "society whose constitutional traditions have always placed die highest value upon the sanctity of the home against governmental intrusion or control." Brief for the Respondent at 4, Bowers v. Hardwick, 478 U.S. 186 (1986) (No. 85-140). Of the LGBT impact litigation groups that filed amicus briefs (including Lambda Legal, GLAD, GLAAD, etc.), only the National Center for Lesbian Rights used the equal protection argument. Compare Amicus Curiae Brief on Behalf of the Respondents by Lambda Legal Defense and Education Fund, Inc. et al., Bowers, 478 U.S. 186 (No. 85-140), with Brief Amicus Curiae for Lesbian Rights Project, Women's Legal Defense Fund, et al., Bowers, 478 U.S. 186 (No. 85-140).
400. 539 U.S. 558 (2003) (invalidating sodomy laws nationally).
401. See supra note 99 and accompanying text.
402. Memorandum from Daniel C. Richman to Justice Thurgood Marshall on Bowers v. Hardwick, quoted in Neil A. Lewis, Rare Glimpses of Judicial Chess and Poker, N.Y. TIMES, May 25, 1993, at A1.
403. For a fuller treatment, see, for example, Eskridge, Some Effects, supra note 2, at 2169-75.
404. Cook v. Gates, 528 F.3d 42, 51-58 (ist Cir. 2008) (explaining that equal protection arguments guarantee only rational basis scrutiny, but due process arguments demand heightened scrutiny) ;
405. Witt v. Dep't of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008) (same).
406. Indeed, gay use of die equal protection progeny of the race analogy has itself declined in favor of due process arguments.
407. Michael Joseph Gross, Pride and Prejudice, THE ADVOCATE, Dec. 16, 2008, at 30, 31.
408. Id.