Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement.

• Author: Cook, Shayna S.
• Position: Review

RAINBOW RIGHTS: THE ROLE OF LAWYERS AND COURTS IN THE LESBIAN AND GAY CIVIL RIGHTS MOVEMENT. By Patricia A. Cain. Boulder: Westview Press. 2000. Pp. xi, 288. $30.

In her history of the past fifty years of the gay and lesbian civil rights movement, Patricia Cain (1) recounts the litigation successes and failures that contributed to the legal status of gays and lesbians in the United States today. Clearly an insider who has marched with the movement every step of the way, Cain provides a comprehensive account of all fronts of the battle in state and federal courts since 1950. But while Rainbow Rights serves as a good primer on the legal challenges and the key themes uniting them, the book reads like an account of a struggle ending in defeat -- not, as Cain describes, "a history of the litigation that has been central to the progress" of the movement (p. 9; emphasis added). Cain's focus on the movement's losses -- most notably Bowers v. Hardwick (2) -- obscures the significance of its gains and, consequently, depicts the movement's future as overly bleak. As a veteran of the movement, Cain seems more comfortable recounting setbacks and lost opportunities than providing an optimistic prescription for the future.

Cain tells the history of Rainbow Rights chronologically, dividing the chapters into two time periods, 1950-1985 and 1986-present. These time periods are marked by Bowers v. Hardwick, the 1986 Supreme Court decision holding that homosexual sodomy is not protected under the constitutional right of privacy. Structurally and symbolically, Hardwick is the defining moment in Cain's history of the gay and lesbian rights movement. Certainly, Hardwick represents the low point of the movement, with its heart-wrenching 5-4 vote, harmful rhetoric, and widespread impact. But fifteen years later, it is not so clear that Hardwick is, or should be, the focal point of the movement's history.

Cain's fascination with Hardwick can be explained by her elevation of private rights over public rights: because Hardwick still governs same-sex intimacy, the private rights of gays and lesbians lag behind their public rights. Cain divides each time period into chapters discussing public sphere rights, private sphere rights, and private rights that become public rights. For Cain, public rights include protection from discrimination in employment, First Amendment freedom of association, and the right to access to the political process. Private rights include parental custody, opportunities for gay couples to adopt children, and the right to practice consensual same-sex sodomy. Private relationships between same-sex couples become public when they seek the state's official recognition of their relationship through marriage or domestic partnership laws. (3)

Cain utilizes the distinction between public and private rights to contrast the progress of gays and lesbians in each realm during different time periods. From 1950 to 1985, struggles for public rights were more successful than those in the private sphere (p. 167). Since Hardwick, gays and lesbians have struggled to convince courts that the illegality of sodomy should be irrelevant to other private rights, such as the right to obtain custody of a child (pp. 246-47). The distinction between public and private rights relates closely to two other themes that run through Rainbow Rights: the contrast between arguments based on sameness versus difference, and the disparate attitude of courts toward arguments based on homosexual status versus sexual conduct. Sameness is the idea that similarly situated gay and straight people should be treated equally, because their differences are not relevant to their individual merit. As Cain points out, sameness arguments are a useful tool for civil rights movements, and the gay and lesbian civil rights movement is no exception (p. 277). Arguments that groups should receive protection because of (or despite) their difference are less successful, as the Hardwick case demonstrates. Like private rights, Cain emphasizes courts' recognition of gays' difference as crucial to the real success of the gay and lesbian civil rights movement, because sameness arguments "devalue the very thing that makes us who we are" (p. 277). Similarly, while courts have been willing to protect gays and lesbians from discrimination based on their status as gays, they will not protect any related conduct -- even if that conduct is simply suspected or assumed (p. 187). Since Hardwick, gay rights lawyers have had to argue that their clients' status as gay or lesbian was unrelated to any illegal conduct (p. 192). In Cain's opinion, protection of status without protection of conduct is meaningless, because "[l]esbian and gay identity has always been connected to choices about sexual intimacy. To protect the person and not the choice often seemed pointless" (p. 192).

Cain uses these three interrelated themes to demonstrate that, historically, gays and lesbians have received more protection from courts when making arguments based on being treated differently than similarly situated heterosexuals in the public rights arena than when arguing for protection on the basis of their status alone. Cain's dissatisfaction with the success of the movement stems from her belief that private rights, including the protection of intimate conduct and an acknowledgment of gays as different, are more fundamental to gays' and lesbians' identity. Thus, regardless of the movement's gains in the public rights arena, Cain's apparent frustration with the stagnation and even regression in the realm of private rights -- which follows each chapter on public rights -- minimizes the successes. Cain's belief that private rights are crucial to the recognition of gays and lesbians as equal citizens (4) renders her history of the rainbow rights movement a disheartened one. The movement's successes in the public rights arena, however, have led to important improvements in the lives of gays and lesbians, and their positive impact extends beyond the public realm into the private.

Ironically, while Cain's view of the state of the movement today seems somewhat jaded, her vision of the movement's lawyers is steadfastly admiring and awestruck. (5) She does not question any of the strategic decisions to pursue litigation, but merely describes the fight and, typically, the subsequent loss. Perhaps her personal involvement in the movement is to blame for this lack of critical analysis, although she never indicates overtly that she is more than a supporter and a scholar of the movement. (6) Regardless, Cain's refusal to question past choices renders her history incomplete. Most glaringly, Cain never questions the wisdom of the strategy that led to the Hardwick decision, "the nemesis of the lesbian and gay civil rights movement" (p. 244).

This Notice identifies the source of Cain's disenchanted view of the history of the gay and lesbian civil rights movement and offers a more hopeful interpretation of the events she discusses. Part I highlights some of the movement's early public successes that provided meaningful protections to gays and lesbians. Part II focuses on Bowers v. Hardwick, the Supreme Court case that Cain considers the pivotal moment of the movement thus far, and discusses both the gay and lesbian civil rights lawyers' decision to challenge the sodomy laws and the aftermath of the Court's decision. Part III analyzes the latter chapters of the book, which discuss victories and defeats since Hardwick, and suggests that the future of the movement may not be as bleak as Cain leads the reader to believe. This Notice concludes that, while the gay and lesbian civil rights movement may not have progressed as far as the movement's insiders might have hoped, it has indeed come a long way in the past fifty years, and there is hope for the movement's future as well.

1. GLIMMERS OF HOPE IN THE PUBLIC RIGHTS ARENA

   One strength of Cain's history of the gay and lesbian civil rights movement is that it is simultaneously comprehensive and accessible. Indeed, accessibility seems to be one of Cain's goals in writing the book, as she seeks to reach a wider audience than legal insiders. (7) But she does not allow her pursuit of accessibility to get in the way of her detailed history of the past fifty years of the movement, nor does she limit her history to the most important Supreme Court decisions. Instead, she includes important district court and state court decisions in her history, despite subsequent events that render them seemingly trivial. Because Cain's history is so inclusive, the reader gains a broad perspective on how far the movement has really come. The reader's growing awareness of the extent to which life for gays and lesbians has progressed contrasts with Cain's own pessimism. This Part highlights several of the early victories that Cain discusses, mainly in the public rights arena, and emphasizes how essential these victories were to gay life and identity. The importance of these early victories will become evident in Parts II and III, which discuss Cain's overly defeatist focus on Hardwick and other denials of private rights, and her consequently discouraging message about the movement's future.

   To understand the significance of the early public rights successes in improving the daily lives of gays and lesbians, consider what life was like for gays and lesbians in the 1950s. Cain describes this state of being as "captivity," because gays and lesbians had to leave their homosexual identity at home and remain closeted in public (p. 74). Given this backdrop, establishing public places for gays to congregate and build a community, and thereby to "develop a firmer sense of identity," was crucial (pp. 76-77). Gay bars became the key congregating sites, "the single most important center of lesbian and gay community" (p. 76), and Cain analogizes the role of such bars in the gay and lesbian civil rights movement to...