Although the United States declared equality and freedom to be among the lodestar principles animating its birth and foundation,1 the new republic, in its evolution, stressed freedom at the expense of equality. The Bill of Rights incorporated into the U.S. Constitution2 left out equal protection underPage 666 the laws.3 It took the ratification of the Fourteenth Amendment in 18684 to correct this anomaly.5 The Fourteenth Amendment guaranteed multiple rightsPage 667 that include "equal protection of the laws,"6 the guarantee of especial interest in this Article.7
Beginning with African Americans, minority groups in the United States have taken advantage of the equal protection clause to fight for equality.8Besides African Americans, minority groups that have struggled for equality include: women,9 Native Americans,10 Hispanic Americans,11 persons with disabilities,12 and elderly Americans.13 One of the latest groups in the post-civil rights era to engage in its own struggle for equality are homosexual Americans.14 It is not difficult to see why gays would put a high premium onPage 668 equality. Like for other minority groups, equal protection under the law forms the basis for combating the discriminatory treatments homosexuals face in U.S. society.15 In addition to the general problem of discrimination that all U.S. minorities share in common, the public perception of homosexuality as sinful or abnormal behavior is a problem unique to gays that they need equal protection to change.16 In short, for gays-perhaps arguably more so than for any other single minority group-equality holds the key to better respectability and dignity of homosexual personhood which makes gay equality also a human rights issue.
Although, as indicated, this Article deals with the gay struggle for equality in America, its main focus is on gay application of technology in the struggle for that equality. If equality constitutes the highest value that gays crave and work for, it is only natural that they will deploy every arsenal within their means to achieve that purpose. Those tools will necessarily include modern or available technology.17 Put somewhat differently, forPage 669 gays, the highest purpose technology could serve, if it serves any purpose at all, would lie in its utility for equality promotion.18 If gays and interest groups who lobby for them seek not just equality but equality to its fullest scope, it is natural to expect that they will use every available means designed to achieve that end, including technology. But one does not get this sense poring over the scholarly literature relating to gay application of technology. Instead, the suggestion in that literature is that gays use modern technology, such as cyberspace, to shield their homosexuality from societal intolerance, taking advantage of the anonymity and other benefits or utilities that this technology affords.19 This Article challenges the conventional wisdomPage 671 regarding gay application of technology and presents an alternative interpretation that, although more complicated, is also more complete and realistic. Beginning with an update on the gay movement for equality, the Article goes beyond that limited focus to examine the relationship between equality and technology, or, put differently, the use of technology to promote equality. The Article's main import and basis of contribution, above all else, is interpretive. By questioning the completeness of the conventional wisdom and model, the Article contributes to improved understanding regarding the application of technology in the gay campaign for equality in America.
This Article has four main parts. Part I presents the latest update on the gay struggle for equality. Part II surveys the gay and non-gay interest groups that advocate for homosexuals, along with their methodologies and technology use. Part II is material in the "middle" between the update embodied in Part I and Part IV incorporating the argument of the Article. It complements the background discussion in Part I, but at the same time it goes beyond that account to anticipate the indictment of the conventional model finally presented in Part IV. The relevance of Part II is borne out in the fact that the conventional model, in its exclusive focus on individuals, omits to discuss the contributions of numerous interest groups who work tirelessly to promote equality for gays. Part III presents the conventional wisdom and model regarding the use of technology by gay persons, focusing illustratively on the work of Professor Stein and Judge Sporkin's opinion in McVeigh v. Cohen.20 Part IV analyzes the trouble with that model in four components that include: an articulation of five factors that render that view inadequate and unacceptably incomprehensive; an analysis of the district court's decision in McVeigh as exemplification of the trouble with the conventional model and wisdom; and an examination of the question whether technology makes a decisive difference for gays in the pursuit for equality.
This Part presents a prelude and background history on the gay struggle for equality in America. The account is necessary both to start the story from the beginning as well as for proper understanding of the nature of the use gay persons and interest groups advocating for gays have made and still make of technology in the gay movement for equality. The discussion comprises three integral elements, namely, Stonewall and its aftermath; victories won in the course of the struggle; and what I denominate as unsteady progress in thePage 671 struggle. As already indicated in the introduction, note that Part II, dealing with gay advocacy groups, continues and complements the survey started here. However, because Part II also goes beyond background history to anticipate the criticism of the conventional model that I present in Part IV, it is kept separate.
The movement for gay equality predated 1969.21 However, by conventional wisdom, the event that signaled the birth of the modern gay movement22 is a bout of protests known as the Stonewall riots.23 The protests occurred at the Stonewall Inn, located in Greenwich Village in New York, which was a gay bar that police frequently raided.24 On the night of June 27, 1969, when the New York police began their customary raid of the bar, the now-fed-up patrons resisted arrest, resulting in clashes with the police thatPage 672 lasted for two nights.25 The event marked the "shot heard round the homosexual world."26 "Gay power" graffiti sprouted in New York, and gay rights groups formed in other major U.S. cities following the Stonewall riots.27 The riots also created a new assertiveness by homosexuals unable to maintain their identity inside the closet.28 Before Stonewall, the stigma attached to homosexuality and the fear of exposure kept most homosexuals securely inside the closet,29 but this was no longer the case after the riots.30Many of today's gay advocacy groups, surveyed in Part II below, came into existence following the Stonewall riots.31 Subsequent events in the course ofPage 673 gay struggle for equality, such as the Supreme Court decision in 1986 in Bowers v. Hardwick,32 also commented upon below, further helped to galvanize activism for gay rights.33
Homosexuals today form a...