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

The Sex Discrimination Argument in Gay Rights Cases

The argument that laws that discriminate on the basis of sexual orientation in fact discriminate on the basis of sex is not new. Advocates have been pressing this claim for almost thirty years. Simply put, the argument is that a statute that bars a sexual relationship between two women or two men discriminates on the basis of sex because either partner could have had the same relationship with a person of the opposite sex

Accommodating the Public Sphere: Beyond the Market Model

This Essay has two major components. First, in Parts I and II, I describe and critique the Court\u27s opinion in Dale, beginning with an examination of the social origins of scouting, then proceeding to an analysis of Dale. Second, in Parts III and IV, I place the questions raised in Dale in another context in which they belong but are seldom analyzed, that of the jurisprudence of public accommodations laws . . . In conclusion, I join the two major themes by framing Dale\u27s claim as the latest in a series of cases that have invoked an evolving understanding of citizenship. What is specifically at stake in Dale is the relationship between civic status and gender and sexuality. What it illustrates more broadly is the need for a contemporary social theory of citizenship that encompasses the discursive dynamics and power of the institutions of civil society

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

Sexuality and Civil Rights: Re-Imagining Anti-Discrimination Laws

In this essay, I first describe the origins and current status of anti-discrimination laws that cover sexual orientation and/or gender identity. I examine the debates over whether existing laws are underutilized, and I analyze the variations in the structures of state and local laws that contribute to an unevenness in the patterns of utilization. These factors suggest that even persons living in states or local jurisdictions that already have anti-discrimination laws may lack meaningful mechanisms for redress. Part two raises the ante in my exploration of the relationship between sexuality and civil rights laws by asking whether there are ways that the civil rights concept itself may fall short of addressing the kinds of discrimination that LGBT persons experience. I approach this question by inviting readers to engage in a thought experiment of designing anti-discrimination laws around the experiences of persons who suffer sexuality-linked discrimination, rather than trying to shoehorn those life experiences into a standard anti-discrimination model. I conclude that there are points of friction between sexuality and civil rights that bubble beneath the surface of advocates\u27 longstanding efforts to fold sexual orientation into the civil rights model

Risk Governance and Deliberative Democracy in Health Care

I argue in this article that the concept of risk-centered governance is the best theoretical paradigm for understanding health law and the health care system. Over the past 20 years, an insurance-inflected discourse has migrated from the purely financial side of the health system into the heart of traditional medicine - the doctor-patient relationship. Rather than focus on doctrinal strands, I argue that scholars should analyze the law of health care as a set of governance practices organized around managing and allocating financial, as well as clinical, risk. Over the same period, the body of law that structures most private group health insurance - ERISA - has effectively delegated control of risk pooling and resource allocation to the employers that sponsor group plans. Drawing on a history of ERISA that has not been explored in legal scholarship, I demonstrate how the private welfare state of workplace-based health insurance has evolved into the creation of what amounts to corporate sovereignty in controlling access to health coverage. The discourse of managing risk bonds these two components of health law and the health care system: patient care and access to coverage. From a normative perspective, the greatest problem with risk-centered governance arises from a democracy deficit. Because almost all health insurance risk pools are based in workplaces, there is potential to draw on the social networks created by work as a mechanism for building new, localized publics engaged with health policy. Treating insurance risk pools as potential mechanisms of governance, rather than merely as actuarial units, would force the publicizing (at least within the workplace) of myriad political decisions: who gets included and excluded in the pooling process, how allocation decisions are made, and whether there are systems of accountability and checks and balances sufficient to produce a risk allocation system that is equitable, as well as efficient and flexible. The article builds on the egalitarian potential of social insurance as a technology of governance, and argues for filling a gap that exists not only in the current system, but also in all proposals for reform

Varieties of Constitutional Experience: Democracy and the Marriage Equality Campaign

Beginning in the 1970s, the overwhelming success of anti-gay ballot questions made direct democracy the most powerful bête noire of the LGBT rights movement. It is thus deeply ironic that, more than any other factor, an electoral politics-style campaign led to the national mandate for marriage equality announced by the Supreme Court in Obergefell v. Hodges. This occurred because marriage equality advocates set out to change social and constitutional meanings not primarily through courts or legislatures, but with a strategy designed to win over moveable middle voters in ballot question elections. Successful pro-gay litigation arguments, followed by supportive reasoning in judicial victories, grew directly out of the messaging frames that tested best with voters. A new variation on popular constitutionalism was born. The lawyers who led the marriage equality campaign succeeded by decentering litigation until after opinion polls registered majority support for allowing same-sex marriage. In developing and implementing this strategy, they were assisted by professionals skilled in communications research and enabled by large-scale, coordinated funding. These dimensions of the marriage equality effort both validate and contradict much of the law and society scholarship predicting that court-centered rights discourse will inevitably dominate law reform campaigns. In this Article, I argue that the same-sex marriage campaign is likely to foreshadow sophisticated social change efforts in the future that look less like traditional impact litigation strategies and more like social marketing campaigns, one component of which may be constitutional interpretation. Whether this model has major potential for significantly progressive change will turn on its effectiveness for issues that involve claims for redistribution of material resources or greater openness in governance, challenges with which the marriage equality effort was not forced to engage. In the marriage campaign, voter-tested messaging led to two major discursive innovations. The first was the jettisoning of rights arguments in favor of storytelling models that were grounded in emotions rather than rights. Advocates stopped enumerating the legal benefits of marriage and talked more about the bonds of commitment exemplified by same-sex couples. Second, ballot question campaign ads increasingly featured the construction of a storytelling arc centered on how opposition to same-sex marriage of older or more conservative voters could morph into acceptance (even if not endorsement) of it. These narratives guided conflicted, moveable middle voters (and others) along a path toward a different sense of moral awareness about homosexuality and same-sex marriage than the manichean version of morality arguments used by conservatives. The new approaches were calibrated, tested, and refined for particular audiences, producing empirical evidence to support a new addition to the language of law: data-driven arguments. The most significant limitations of this approach operated at the level of social and constitutional meanings. Several discursive pivot points that emerged from the messaging strategy led to the shrinkage of what might have been greater emphasis on the pluralism of family forms as the foundation for equality and liberty in the realm of personal relationships. These pivot points include: The shift from an equality frame based on analogies to other social minorities to a universalized sameness approach; The shift from an emphasis on the material consequences of being denied access to the legal incidents of marriage to an emphasis on commitment, child raising, and the relational and emotional motivations for wanting to marry; and The avoidance of arguments for “expanding” or “changing” marriage and the stress of the desire for “joining” marriage. This new frame reassured moderate voters and judges that the traditional norms and practices associated with marriage were not being threatened, producing a kind of cultural interest conversion. This was brought about through a discourse that was mined from the rhetoric of popular constitutionalism but suffused with the resonance of respectability

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