Lesbians, Gay Men, and the Law.

Author:Schacter, Jane S.

Edited by William B. Rubenstein. New York: The New Press. 1993 Pp. xvii, 569 $30.

If timing is everything, then Bill Rubenstein(1) got it just right. The publication of Lesbians, Gay Men, and the Law, the first comprehensive work on sexual orientation and the law suitable for use as a law school casebook, could hardly have come at a more propitious time. The events of 1993 brought a new high profile to the contested relationship between sexual orientation and the law. In terms of sheer media saturation, nothing rivaled the controversy over lifting the ban on gay men and lesbians in the military,(2) but that was by no means the only issue that put gay rights so decisively on the national screen. Homosexuality and the law collided conspicuously elsewhere, including in the growing spate of antigay ballot measures,(3) a constitutional challenge to Colorado's restrictive referendum measure,(4) a Hawaii Supreme Court decision portending the possible legalization of gay marriage in that state,(5) a judge's ruling in Virginia denying a lesbian custody of her young son,(6) and heated debates over the right of gays and lesbians to march in St. Patrick's Day parades.(7) The new primacy of gay-related issues was as much political and cultural as legal. A massive crowd of gay men and lesbians and their supporters marched on Washington in support of civil rights,(8) covers of major national magazines turned to the subject,(9) and, by midyear, the unlikely phenomenon of "lesbian chic" was extensively noted in the mainstream press.(10)

Rubenstein's book thus comes at a time when many have called the law's stance toward sexual orientation sharply into question. Basic premises about homosexuality -- its definition, its properties, its place in contemporary collective life -- are the subjects of intense debate. What seems clearest, for the moment, is that normative legal questions about sexual orientation will face close examination and, perhaps, progress toward resolution in the 1990s.

Fortunately, good timing is not the only quality that distinguishes Lesbians, Gay Men, and the Law. Rubenstein, director of the American Civil Liberties Union's Lesbian and Gay Rights Project and a lecturer on sexual orientation and the law at Harvard Law School, has masterfully collected, organized, and edited the emerging body of law governing homosexuality, as well as a wide range of nonlegal materials that provide perspective on and insight into the social fact of homosexuality. Nothing that preceded this book had its depth and range.(11)

The publication of Lesbians, Gay Men, and the Law provides an opportunity to reflect upon how legal education might be part of the process of negotiating the relationship between sexual orientation and law. In this review I focus on two aspects of the book that can yield important insights concerning this question: its pedagogy and its potential to institutionalize courses covering homosexuality in the law school curriculum.


    1. Overview and Organization of the Book

      Lesbians, Gay Men, and the Law is ambitious in scope and inventive in pedagogy. The book covers a wide array of topics and traverses many conventional legal domains. It principally emphasizes constitutional, criminal, family, and antidiscrimination law, but it also covers issues implicating tort, property, contract, probate, and immigration law. While this impressive sweep of subject matter strengthens the book, Rubenstein wisely eschews doctrinal organization in favor of a more imaginative, thematic approach. The book begins with an introduction and a first chapter providing some conceptual tools for thinking about the law and homosexuality (pp. xv-76); it ends with two essays by activists that reflect upon the past and future of the gay rights movement (pp. 563-68). In between are the five principal chapters, each of which corresponds to a major aspect of gay and lesbian life: "The Regulation of Lesbian and Gay Sexuality" (pp. 77-154); "The Regulation of Lesbian and Gay Identity: Coming Out -- Speaking Out -- Joining In" (pp. 155-242); "Lesbians and Gay Men in the Workplace" (pp. 243-376); "Legal Recognition of Lesbian and Gay Relationships" (pp. 377-474); and "Lesbian and Gay Parenting" (pp. 475-562).

      Among its other virtues, this organization effectively communicates the idea that institutionalized discrimination still pervades the lives of gay men and lesbians. As the book moves to each area in which formal exclusion and stigma are still the rule, the materials powerfully evoke the sense of sequential legal and social barriers that many gay men and lesbians will find familiar.

      Rubenstein richly documents these legal barriers. For example, the early chapter on regulation of sexual activity focuses on the central American legal text regarding homosexuality, the Supreme Court's decision in Bowers v. Hardwick.(12) In Hardwick, the Supreme Court rejected a privacy-based challenge to a law criminalizing consensual sodomy. Although the Court decided only that the constitutional right to privacy did not invalidate Georgia's sodomy law, the decision is often invoked by opponents of gay and lesbian rights as a broader trump card.(13) Indeed, some courts have reasoned that, if the Constitution permits the criminalization of gay sexual activity, then gay men and lesbians cannot claim heightened protection from discrimination under the rubric of the Equal Protection Clause.(14) Materials in this and later chapters (pp. 341-67, 502-03) enable readers to consider just how long a legal shadow Hardwick casts. To its credit, the book poses this relatively abstract, doctrinal question without losing sight of the excruciatingly human dimension of the case and of the larger issue it raises. Juxtaposed with the Hardwick majority opinion's disemboied references to "criminalized consensual sodomy" (p. 132) is an interview with Michael Hardwick, in which he recounts the very concrete story of being arrested while making love in his bedroom (pp. 125-31).

      As the book moves from sexuality to other aspects of gay and lesbian lives, it continues to paint a picture of broad legal constraint. Successive chapters document, for example, that under federal antidiscrimination law and the copate laws of forty-two states, employers may still lawfully fire people based on their sexual orientation;(15) that gay men and lesbians remain formally relegated to the outside of powerful cultural institutions like marriage and the military;(16) and that, in the context of family law, gay men and lesbians struggle daily to maintain or to establish legal bonds with their children (pp. 475-562). As the book explores the ways in which gay men and lesbians are subject to pervasive forms of disadvantage, moreover, Rubenstein does not treat the experience of homosexuality as a monolith. By incorporating the perspectives of African Americans and Latinos, for example,(17) the book enables teachers to explore the ways in which race, like gender, ethnicity, and class, can fracture, influence, and intersect the experience of homosexuality.

      Even as the book chronicles the continuing institutionalized subordination of gay men and lesbians, however, Rubenstein adeptly captures the ambiguous state of the struggle for gay and lesbian equality. That struggle is more a story of overlapping progress, regress, and stasis than one of unbroken defeat. Since the contemporary movement for what was once termed gay liberation began in 1969 with a riot at a New York City bar raided by police one too many times,(18) much has changed for gay men and lesbians in this country. In addition to noting important dimensions of cultural and social change,(19) the book provides good coverage of the legal victories thus far. Rubenstein notes, for example, the elimination of twenty-six state sodomy laws since 1961 through repeal or invalidation (pp. 80, 87-88); the hard-won enactment of civil rights laws in several states and municipalities(20) and domestic partnership ordinances in several municipalities (pp. 439-43); judicial decisions in some states affording gay men and lesbians the right to adopt a partner's biological child(21) or rejecting homosexuality as a per se basis for denying custody or visitation (p. 492); the movement in some cases toward a more functional definition of family (pp. 448-61); and several important free speech victories (pp. 167-77, 215-16, 223-28). To be sure, the ideological and political right has greeted many of these advances with redoubled activism, and anti-gay violence seems with dismaying consistency to accompany the assertion of gay rights.(22) Nevertheless, the slow, if interrupted, accretion of legal victories reflects that supporters and opponents of gay rights have engaged the social and legal debate.

    2. Crossing Disciplinary Boundaries

      Lesbians, Gay Men, and the Law is anchored by a central pedagogical choice: to be relentlessly interdisciplinary in presenting the material. The book presents a deeply contextual picture of gay and lesbian lives -- a picture in which the reader can see legal rules and doctrines as part of a larger social and cultural landscape. This contextuality is reflected, for example, in the very organization of the book. By focusing on aspects of gay and lesbian lives -- the workplace or parenting -- instead of on legal constructs -- equal protection or privacy -- the book enables students and teachers to step outside particular doctrinal vacuums and to consider how legal, social, cultural, and political forces fuse and interact to create rules and attitudes about homosexuality.

      Rubenstein's interdisciplinary perspective is, moreover, apparent in the contents of every chapter in the book. He consistently interweaves with standard legal sources -- such as cases, statutes, and law review articles -- rich and illuminating materials from other disciplines that document the historical, social, and political...

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