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

• Author: Konnoth, Craig J.

NOTE CONTENTS INTRODUCTION I. A NOTE ON THEORY: GAY IDENTITY AND HISTORY II. DENYING GAY "IDENTITY" A. Early Gay Activists and the Denial of Identity 1. A False Start 2. Eliding Group-Based Arguments: Due Process and First A Amendment Claims 3. Disrupting Identity: Manual Enterprises and Boutilier 4. Modern vs. Contemporary Theoretical Perspectives B. Judicial Responses III. CREATION: CONSTRUCTING LEGAL IDENTITY THROUGH THE RACE ANALOGY IN COURTS A. Choosing a Bounded Identity Model B. Shared Harms--Shared Context C. Constructing New Self-Perceptions D. Doctrinal Developments and the Stabilization of Identity 1. Doctrinal Developments: A Formal Minority Group 2. A Gay Movement 3. The Failure of Analogies IV. THE RACE-SEX ANALOGY A. Family Rights: An Area of Disanalogy B. Family Rights as Marriage Rights and the Race-Sex Analogy C. The Continued Reliance on Analogies in Marriage Litigation 1. Stereotyping vs. Subordination vs. Classification 2. Private/Fundamental Issues vs. Public/Secondary Issues CONCLUSION INTRODUCTION

In today's battle over gay rights, combatants draw upon powerful social and cultural discourses to frame gays in diametrically opposite ways. Opponents of gay rights use traditional religious understandings of sexuality and gender roles. Supporters, in turn, utilize language of civil rights that constructs gays as a legal minority group, both to gain judicial solicitude and to sway broader audiences.

This Note suggests that the construction of gay identity, to a large extent, determines the extent of rights that individuals attracted to the same sex enjoy. Theorists have noted, put simply, that a major function of individual identity is to establish the relationship between the individual and society. An individual's self-perception helps determine where she thinks she fits within society, and the role she plays in it; the way society perceives the identity determines which roles will be granted her, and which denied. (1) That gays are now able to use legal minority group identity to mediate their relationship with society, rather than rely on medicine or religion (which construct gay identity in very different ways), has completely resituated gays within society, both to themselves and, increasingly, to the general public. It has affected which rights gays have sought and the ways in which they have sought these rights.

While the use of law to suppress identity generally has been explored, the relationship between the substantive development of, and alteration in, elements of minority identity (whether suppressed or not) and litigation strategies bears further discussion. (2) Gay rights history readily lends itself to this analysis, given a rich theoretical literature on the subject of sexuality and identity. This Note specifically addresses the analogy between race and sexuality made by midcentury gay rights activists, which played a major role in altering gay identity (perceived from within and without the community) and thus gay litigation methods. While the Note focuses on the race analogy, other legal developments have, of course, also played roles in developing the way we think of today' s gay community.

As Part II of the Note indicates, the debate over the race analogy has raged since the beginning of the gay rights movement. As gay urban enclaves grew in the post-World War II era, greater visibility led to greater societal suppression, which in turn led to greater gay mobilization. (3) Using the analogy, a few early gay organizers argued that gays, like African-Americans, are a minority, that discrimination against them should bear the same stigma as racial discrimination, and that judges should be as attentive to gay rights as they are to racial justice. However, the mid-century "homophiles" who ran the first modern gay rights organizations initially challenged the analogy between race and sexuality. (4) At the same time, these leaders needed new ways to articulate the relationship between homosexuals and society as a whole in order to aid mobilization efforts. Thus, in their litigation, they resisted allusions to homosexual "identity" and attempted to disrupt group status altogether. Using new scientific models, they argued that homosexuality consisted simply of certain acts, urges, and experiences that were common to all human beings, rather than to one identifiable group of individuals.

Courts and politicians, however, continued to rely on traditional psychiatry and religion to identify gays as a group and emphasized the perverse, homosexual identity of these organizations. Gays themselves internalized many of these claims. Unable--and often unwilling--to dissolve the separate homosexual group identity bestowed upon them, activists responded to the majority's construction by creating their own, kinder version of a gay identity, analogizing themselves to African-Americans. (5) This analogy provided a way for gays to articulate an identity which explained how they fit into society and their belief that, while differences existed between homosexuals and heterosexuals, they were not significant. The similarity of the contexts of oppression that blacks and gays faced ensured that the analogy resonated for much of the homosexual, and some of the heterosexual, audiences. Slowly, the identity model that grew from the analogy, combined with other sociocultural events, took root and transformed the way gays saw themselves, from medical patients and outcasts into a legal minority in search of civil rights. In the process, Part III concludes, gay identity began to stabilize on its own terms. While the race analogy continued to be used to transform public perceptions, gays were no longer required to invoke racial identity to describe themselves as a legal minority--they began to be understood as such in their own right.

Even as the race-sexuality analogy diminished in importance in the early 1970s, historical developments during the same period solidified dependence on a race-sex analogy in litigation, as Part IV describes. The racial justice movement initially provided no purchase for the family rights concerns of gays. Its focus remained on the right of whites and blacks to intermarry. Gays, in turn, rejected marriage as a desirable relationship form in the 1950s. However, at the end of the following decade, as the women's rights movement gained momentum, its advocates began analogizing the position of women to that of racial minorities for the first time. This led to a sudden change in the approach to relationship rights in the gay movement. Gays, who less than two decades earlier scorned the idea of gay marriage, now drew both from the racial justice movement's focus on intermarriage and the women's movement's use of the race-sex analogy to argue that prohibiting individuals from marrying based on their sex was as impermissible as similar prohibitions based on race. (6) The race-sex analogy allowed, and perhaps encouraged, gays to leapfrog demands for incremental same-sex relationship benefits (such as domestic partnership rights) and focus on the issue of marriage. Finally, the Part concludes by explaining why activists continue to rely on the race-sex analogy in litigation, even as the race-sexuality analogy has diminished in importance, and describes how courts challenge the race-sex analogy.

The insights gained from this historical discussion of the origins and development of the analogy also help address criticism that the analogy has more recently attracted along at least two significant lines. The first line of criticism identifies certain characteristics of gays that purportedly differentiate them from African-Americans. According to this argument, for example, unlike blacks, gays choose and are able to conceal their minority status (that is, their sexuality) and are politically powerful. (7) Events in November of last year brought this critique into the mainstream, when a majority of African-American Californians voted to amend the state constitution to ban gay marriage. (8) The day after the election, a gay Huffington Post blogger castigated these African-American voters, suggesting that gays were a minority group analogous to blacks, in a post entitled African-Americans vs Gay Americans? (9) The nation's leading LGBT news magazine, The Advocate, echoed this argument the next month. Upon its cover in big white letters against a black background was the slogan: "Gay Is the New Black: The Last Great Civil Rights Struggle." (10) Opponents of this view, including many from the African-American gay community, challenged the analogy, pointing to the generally privileged socio-economic status of gays and the lack of interaction between African-American communities and gay civil rights leaders; these commentators defended the African-American vote. (11)

This Note, however, demonstrates that gays as a group constructed an important component of their identity through interaction with and lessons from the African-American community. The racial justice movement and the harms and inequalities it targeted colored what gays saw as harmful to them and the appropriate methods and strategies to remedy these harms. Thus, while many differences between gays and African-Americans do exist socially and otherwise, the rights both groups seek are similar precisely because gay activists targeted many rights that the civil rights movement vindicated. This interlinked past may help both critics and supporters of the race analogy to understand the interplay between the movements--supporters should understand that the similarities between groups were in some cases carefully constructed by activists, while critics may find that the groups are more alike than they recognize precisely because of these constructed similarities. (12) Ultimately, gay rights as we understand them today would make very little sense without a fundamental reliance on concepts and arguments formed through reliance on...