Harvard Civil Rights: Civil Liberties Law Review

Over the past 30 years, the gay rights movement has moved from the margins to the center of American politics, sparking debate from bedroom to boardroom to battlefield. "Out of the Closets and into the Courts" analyzes the most recent gay rights cases, and explores the complex relationship between litigation and social change. Ellen Andersen describes what happens when these cases - many overseen by the Lambda Legal Defense Fund, the nation's oldest and largest gay rights defense firm - enter the courtroom, and explains why they have met with mixed success. "Out of the Closets and into the Courts" explores both the promise and the limits of using legal mobilization to effect social change. Crossing disciplinary boundaries, Ellen Andersen draws on the accumulated knowledge of political science, law, and sociology to explain the origins and outcomes of gay rights litigation. The resulting book is essential reading for anyone interested in gay rights, legal change, and social movements.

Out of the Closets and into the Courts

Separating lesbian theory from feminist theory the gender closet the shape of lesbian and gay subordination defending marriage construction lesbians and gay men as family's outlaws

Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement

Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation

This article employs and expands a multidimensional framework for understanding movement effects that includes political, mobilization, and cultural outcomes. It compares lesbian and gay efforts to decriminalize sodomy between 1961 and 1977 and between 1986 and 1991 and examines the conditions under which activists strive for different sorts of goals. Because movement strategies are inextricably tied to what motivates activists—that is, their understanding of what constitutes success—this article sheds light on how activists understand and negotiate their external environment. In contrast to previous formulations, it argues that political, mobilization, and cultural goals do not always line up in a one-to-one fashion. Therefore, activists' understandings of the relationship between political opportunities and different sorts of outcomes influences their strategic choices, which in turn affects the types of outcomes they achieve. ( Bowers v. Hardwick is) a despised national symbol of anti-gay hostility and dis- crimination. (Lambda 1999) In return for removing the formal threat of severe criminal sanction for hidden and discrete acts (which society had rarely enforced in any case), dominant heterosexual society has sought the quiescence of sexual nonconformists, their tacit agreement to hide themselves from view and spare the beneficent domi- nant culture the disgust of any type of public presence. (Backer 1993:759) In 1960 every state in the United States had a sodomy law that banned certain consensual sex acts between adults in private. In addition to anal sex, the sodomy statutes, either by express statutory language or judicial interpretation, generally prohibited any oral-genital contact. In some states, these laws applied to both different- and same-sex couples, married and unmarried couples alike (Apasu-Gbotsu

https://www.jstor.org/stable/10.1525/sop.2003.46.3.353

Nothing ventured, nothing gained? conceptualizing social movement "success" in the lesbian and gay movement

Life After Hardwick

In Lawrence v. Texas, the Supreme Court both decriminalized consensual homosexual relations between adults, and, simultaneously and paradoxically, authorized a regime of heightened regulation of homosexuality. Decriminalization is not deregulation, however. Rather, it is one stage in a regulatory process, one which is likely, in Michel Foucault's words, to produce even more institutional incitement to speak about sexuality, and to do so more and more; a determination on the part of agencies of power to hear it spoken about, and to cause it to speak through explicit articulation and endlessly accumulated detail. Lawrence did not end state involvement with sexuality. Future legal disputes are likely to center on the extent to which the indirect mechanisms of fields such as family and employment law will supplant criminal law in the machinery of state regulation of homosexuality. The impact of Lawrence is to deprive the state of easy invocations of morals or tradition to justify regulation. Courts will be forced to engage in more particularized assessments of whether there is a legitimate state interest justifying classifications based on sexual orientation: to hear homosexuality spoken about and to cause it to speak. Whatever standard of review is used, the inquiries into the reasonableness of differentiating based on sexual orientation will become more detailed and contextual. The paradox of this new form of heightened scrutiny is that such examinations will constitute even more intrusion by the state than occurred under the old criminal law regime, a development which is the seeming antithesis of the liberty principle of Lawrence.

Sexual Orientation and the Paradox of Heightened Scrutiny

Public health law has been a quintessentially public law field, centered around a system of administrative agencies. In some respects, the field is moving even closer to the core of governmental functions. Since September 11, the 2001 anthrax attacks and Hurricane Katrina, the conceptual framework of emergency preparedness and response has subsumed ever larger segments of public health policymaking. Emergency planning has become an important discourse of governance, one which reveals a great deal about the operations of state power. In this article, I identify three approaches to governance embedded in today's public health law and policy. The first and most traditional approach to governance is that of dominant state authority. What is notable is how this approach is being strengthened by a trend toward greater centralization and hierarchy in infectious disease control, pushing public health into a tighter command and control structure. I describe how this framing process has the effect of melding population health concerns and the security state, as well as insinuating a discourse of emergency response into non-emergency policy-making. The second governance model in the public health field is the public-private administrative model. Although public-private models for administrative governance are relatively new to public health compared to many other fields, calls for partnerships with the private sector for the purpose of achieving population health goals are growing. Increasingly, private sector entities are implicated in the state's matrix of collaborative public health institutions. The third governance construct is based on the insight from governmentality theory that the state already permeates the private sector even without formal authority; power flows back and forth between public and private entities through a multiplicity of channels and technologies. New federal proposals for "modern quarantine" provide an example. "Modern quarantine" policies would depend on the public's instinct to voluntarily sequester themselves in a pandemic, thus utilizing indirect and less coercive methods to control the spread of infectious disease. However, this proposal fails to engage with the full dimensions of the public sector role that would be necessary to enable people to remain at home for three months or more. It cannot succeed without mandates and incentives emanating from the state, a reality which official policy documents have elided. From this analysis we can learn a great deal about both current directions in public health policy and about the utility and limitations of new governance theory. The three governance trends taken together exemplify a paradox fundamental to contemporary political debates: how the same apparatus can be intensifying as a security state while at the same time deploying new governance and privatization initiatives. The concept of modern quarantine demonstrates that serious complications lurk beneath the surface when policymakers engage in shallow invocations of new regulatory rhetoric.

'Public-Private' Health Law: Multiple Directions in Public Health

https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1103&context=facpub

Accommodating the Public Sphere: Beyond the Market Model

/pdf/public-private-health-law-multiple-directions-in-public-4uikcak576.pdf

Nan D. Hunter

Papers

Life After Hardwick

Sexual Orientation and the Paradox of Heightened Scrutiny

'Public-Private' Health Law: Multiple Directions in Public Health

Accommodating the Public Sphere: Beyond the Market Model

Public-Private Health Law: Multiple Directions in Public Health