Civil Rights 3.0

It is now commonplace to hear the LGBT rights movement being described as the last, or the next, or today’s, pre-eminent civil rights issue. This chapter will explore what that means from several perspectives: What does the label tell us about the civil rights paradigm itself? If the achievement of marriage equality is the great civil rights achievement of this generation, what does that suggest about a future for equality more generally? How have new forms of, and technologies for, movement building affected the idea and practice of civil rights? Does the civil rights paradigm have a future? I focus in on three aspects of the social meaning of civil rights: legal doctrine and legal institutions, social movement strategies, and the tension between the discourse of challenges to social hierarchy and that of civil rights. What we learn is that LGBT advocates have contributed to the overall project of formal equality under law primarily by developing an extraordinary strategic and tactical dexterity, uniquely so at the state level and in its alliance with the business sector. As to the latter, however, there are serious potential disadvantages. In the current political framework, the possibility of advances in substantive equality law-–either statutory or Constitutional-–has shrunken to the point that, even as LGBT rights groups make breakthroughs in achieving goals such as marriage equality, they will do well to avoid having to take backward steps with regard to such overarching concepts as the disparate impact principle or heightened scrutiny. For the future, the big question for this movement-–and all other social justice movements in the United States-–is whether it will deploy its talents and resources to challenge embedded, structural forms of discrimination

Introduction to the Symposium Issue Sexuality and Gender Law: The Difference a Field Makes

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. One result of this now dying worldview was a series of categorical exclusions and erasures-exemplified by the exclusion of sexual speech from the First Amendment, the exclusion of nonreproductive kinship networks from the definition of family, the exclusion of gender performance from the category of protected expression, and the erasure of culturally legible same-sex desire through the mechanism of criminalization. Although instances of erasure and exclusion continue today, the period of a hegemonic paradigm of occlusion has ended. Today, few voices would contest that sexuality and gender law is intellectually both mature and sophisticated. Moreover, the themes and tensions that have emerged about and within the field increasingly dominate broad swaths of public law

Rights Talk and Patient Subjectivity: The Role of Autonomy, Equality and Participation Norms

Patients themselves have transformed the role of the patient in the health care system, making it far more complex than it ever has been before. As a result, the conceptual root of our contemporary understandings of “patient” is an assumption of autonomous subjectivity, i.e., of an individual aware of and capable of acting on her choices for medical care. The Symposium on Patient-Centered Health Law and Ethics of which this Article is a part considers the most recent stage in this evolution of meanings: the concept of patient-centeredness, with its implication of provider deference to the patient’s perspective. Throughout the process of an evolving patient identity, law has played a central constitutive role. In the 1960s and 1970s, the law of informed consent brought the concept of patient autonomy into the constellation of metanorms shaping the idealized doctor-patient relationship. From that process, the patient as a rights-bearing subject emerged. From the 1970s to the 1990s, women’s health advocates and AIDS patients brought a new level of militancy to the patient role, undertaking representation on their own behalf and on behalf of future patients with the same disease. Their efforts produced lasting legal changes in such fundamental medical endeavors as clinical research. In the last two decades, the rise of managed care and the growing shift of financial burdens and risk onto the patient have been reflected in the model of patient as consumer, market actor, and self-insurer – a change also inscribed by and into law. As health law and policy scholars increasingly focus on patient-centeredness, these new patient identities provide a starting point for understanding just who the patient at the center is, what her roles will be in the health-care system as a whole, and what her reasonable expectations of that system will encompass

Lawyering for Social Justice

It is an honor, albeit a sad one, to be invited to write this Essay in commemoration of Tom Stoddard and as commentary on his final publication. I first met Tom in the late 1970s, when we both joined the Board of Directors of the Lambda Legal Defense and Education Fund. Both of us were American Civil Liberties Union staff attorneys, Tom for the New York Civil Liberties Union (NYCLU) and I for the Reproducfive Freedom Project in the national office. Later, for the last half of the 1980s, Tom was the Executive Director of Lambda during the same period that I was Director of the ACLU Lesbian and Gay Rights and AIDS Projects. Much of my professional life has been spent in tandem with Tom\u27s, and his absence creates a giant gap in that world. Not many of us are pioneers, but Tom Stoddard was. He fought for equality for lesbian and gay Americans before it was respectable; he was proudly out as a gay man before it was professionally safe to be out; and he taught one of the first courses centering on the rights of lesbians and gay men in any American law school. He lived to see the lesbian and gay civil rights struggle take its place with others as a campaign for human dignity and justice

Proportional Equality: Readings of Romer

One of the great enigmas of equal protection law is Romer v. Evans. In finding sufficient power in the rational basis test to invalidate a state constitutional amendment enacted by popular vote, the Supreme Court left legal scholars in its doctrinal dust, puzzled over the answers to multiple questions. Was this a new rational basis test? If so, how could one know when to apply it? Had the standard of review for state acts adversely affecting lesbian, gay and bisexual Americans changed? If so, to what? Had Bowers v. Hardwick been overruled? If so, why

Living with Lawrence

This Article will proceed in three steps. First, I will examine the Court\u27s treatment of liberty. I see Lawrence as marking the emergence of a new approach to substantive due process analysis, one that has been simmering in the concurring opinions of Justices Souter, Stevens, and Kennedy for the last decade. These three Justices apparently now have a majority for extending meaningful constitutional protection to liberty interests without denominating them as fundamental rights. They also appear to be jettisoning, at least prospectively, a special category for privacy rights. Second, I will turn my attention to the ramifications of Lawrence\u27s equality subtext. The only equal protection opinion per se is the concurring opinion of Justice O\u27Connor, which is significant for its elaboration and clarification of the heightened rational-basis review standard the Court used in Romer v. Evans. Justice O\u27Connor\u27s opinion explicitly adopts a new form of rational-basis review triggered by indicia of animus toward the group being subjected to adverse treatment. Third, I aspire to read between all its lines and unravel the larger meanings of the liberty-equality dialogue embedded in the decision. In my view, the Lawrence opinion is in perfect tune with its times, articulating a new principle of equal liberty and resonating with a neoliberal political vision of civil rights

Reflections on Sexual Liberty and Equality: Through Seneca Falls and Selma and Stonewall

This Essay uses the opportunity to examine Roe v. Wade forty years after it was decided and Lawrence v. Texas ten years after it was decided as a platform from which to analyze the status of the civil rights paradigm in American law. A comparison of the two decisions illustrates an important and new point about how civil rights law is deployed to achieve very different goals

Twenty-First Century Equal Protection: Making Law in an Interregnum

During her remarkable career on the Supreme Court, Justice Sandra Day O\u27Connor articulated principles, in both concurrence and dissent, which moved to the doctrinal core of multiple areas of jurisprudence. Perhaps, just perhaps, Justice O\u27Connor has done it again. In Lawrence v. Texas, although the Court\u27s majority decided the case on substantive due process grounds, O\u27Connor concurred relying solely on the Equal Protection Clause. Because future litigation on sexuality and gender issues is more likely to turn on issues of equality (or expression) than on issues of privacy, her concurrence may ultimately achieve the influence of many of her past minority opinions. And because its reach exceeds the bounds of any specific classification, O\u27Connor\u27s concurrence in Lawrence may set the terms for equal protection analysis in cases involving a broad range of social groups

Animus Thick and Thin: The Broader Impact of the Ninth Circuit Decision in \u3ci\u3ePerry V. Brown\u3c/i\u3e

This essay is a response to an article by: Eskridge Jr., William N., The Ninth Circuit\u27s Perry Decision and the Constitutional Politics of Marriage Equality, in 64 Stan. L. Rev. Online 93 (2012). This essay examines the impact of Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the first appellate federal court decision on the constitutional validity of marriage exclusion laws. The author argues that the major contribution of the Perry decision is to illuminate the meaning of animus, a term that is sharply contested in Equal Protection jurisprudence, and to explicate its relationship to standards of review. The Ninth Circuit holds that evidence of animosity toward a disfavored group triggers a heightened rational basis standard of review. The Supreme Court has not yet settled on how to analyze evidence of animus. In his dissent in Romer v. Evans, Justice Scalia ridiculed the idea that believing homosexuality to be immoral could be compared to racial or religious bias. By contrast, in her concurrence in Lawrence v. Texas, Justice O’Connor articulated the principle adopted by the Ninth Circuit in Perry: that laws driven by animus toward a social group are subject to a “more searching” version of rational basis review. The majority of Justices, however, appear to be gunshy about even acknowledging the existence of heightened rational basis review, even though they have been relying on it sub silentio for several decades. The Perry court provides the fullest articulation of it to date. The Court of Appeals in Perry also takes a new perspective on how courts should assess the validity of popularly enacted initiatives such as Proposition 8. For both proponents and opponents of popular constitutionalism, the gay marriage debates raise the question of whether voters or courts should get the last word in a constitutional democracy when they take polar opposite positions on a minority rights issue. The Perry opinion would impose less a death knell to such initiatives than a set of speed bumps, through which courts would analyze whether a discriminatory provision was the retraction of a right or a failure to extend it, and whether it had a demonstrably legitimate purpose, other than simply the imposition of stigma. In the gay marriage context, the court left open the possibility that limiting marriage to different sex couples could be justified by the desire to discourage “accidental procreation.” However, based on evidence about the campaign to pass Proposition 8, the court found that animus had been the dominant motivation in this case

Public-Private Health Law: Multiple Directions in Public Health

No public law is more public than public health law. Its defining subject is the use of state power to control and prevent death and disease. Its primary institutions are a cluster of state actors, the governmental agencies that comprise the American public health system.,, The system grew out of the eighteenth century boards of health that produced the beginnings of administrative law. Public health law is grounded on statutory provisions that authorize various forms of state action and on judicial decisions that resolve constitutional challenges to those actions