THE FIRST QUEER RIGHT.

• Author: Skinner-Thompson, Scott
• Position: Book review

THE FIRST AMENDMENT AND LGBT EQUALITY: A CONTENTIOUS HISTORY. By Carlos A. Ball. Cambridge and London: Harvard University Press. 2017. Pp. 284. $39.95.

INTRODUCTION

Contemporary discussions about lesbian, gay, bisexual, transgender, and queer rights often center around the need for equality for LGBTQ individuals. (1) If one is a Justice Anthony Kennedy acolyte, then perhaps dignity too. (2) On the other hand, current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment's protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ antidiscrimination protections. (3) But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals in American society, as explained in Professor Carlos Ball's important new book, The First Amendment and LGBT Equality: A Contentious History. (4)

As methodically detailed by Ball, in many ways the First Amendment's protections for free expression and association operated as what I label "the first queer right." Decades before the Supreme Court would recognize the importance of equal treatment of same-sex relationships (5) or the privacy harms implicated by criminal bars to same-sex intimacy, (6) the Court protected the ability of queer people to espouse explanations of their identities and permitted them leeway to gather together to further explore and elaborate those identities. (7) In this way, the First Amendment served an important incubating function for the articulation of equality and privacy arguments in favor of LGBTQ individuals while it simultaneously created space for greater visibility of queer people in American society. (8) As we now know, social contact or exposure to stigmatized identities plays a major role in helping destabilize and correct prejudicial attitudes. (9)

According to Ball, it is critical to bear in mind the First Amendment's historical pedigree in advancing LGBTQ rights when confronting current controversies over whether certain religious adherents should be able to assert expressive, associational, or religious objections to employing or serving LGBTQ individuals in the marketplace. As Ball rightly observes, America has been down this road before--those resistant to racial equality raised similar arguments in opposition to federal antidiscrimination laws. (10) Courts and legislatures were able to strike an appropriate balance that ensured race could not be used to discriminate--even by religious individuals who objected to integration. (11) But religious organizations were still permitted to discriminate in favor of their religious devotees when it came to employment decisions, preserving their associational and religious rights. (12) For Ball, more or less the same balance should be struck when adjudicating (or legislatively resolving) the current controversies over, for example, whether a florist or baker who happens to have a religious objection to same-sex marriage should be able to refuse service to a same-sex couple for their wedding. (13) In a nutshell, private citizens and corporations in the marketplace should not be able to discriminate, (14) but not-for-profit religious organizations should be granted more space to exercise First Amendment values. (15) This Review largely agrees with Ball's proposed balance between antidiscrimination and First Amendment values. And Ball's careful explanation of the First Amendment's historical role in protecting marginalized groups is critical context for understanding the current (purported) tension between LGBTQ rights and First Amendment rights.

But at the same time, the story Ball paints of the First Amendment as "the first queer right" somewhat elides the rhetorical impact the initial focus on the First Amendment had on how queer identities were conceptualized and framed. Ball provides little in the way of comparative analysis discussing how LGBTQ identities were portrayed to take advantage of the First Amendment relative to how they were later portrayed when trying to take advantage of the Equal Protection Clause (though he does examine why, doctrinally, the First Amendment was initially more fertile ground for lesbian, gay, and bisexual people than equal protection). In short, an argument can be made that when LGBTQ rights were being pursued under the First Amendment, litigants crafted a broader, more comprehensive and diverse tableau of queer identity. This was in part because plaintiffs were not encouraged to place themselves within a particular socially constructed category (e.g., gay or lesbian) or contend that they were the "same" as straight people in order to obtain equal treatment, as arguably required by equal protection doctrine. (16)

In other words, the First Amendment not only provided the first doctrinal foothold for LGBTQ individuals, as Ball artftilly highlights, but also may have facilitated a more robust and wide-ranging articulation of queer identity than the more vaunted equality claims that followed. One unfortunate side effect of transitioning from First Amendment claims to equality-based claims was the narrower, straighter picture of queer such claims presented. (17) Like the doctrinal history chronicled by Ball, the narrative history of how LGBTQ rights were framed and conceptualized under the First Amendment is important to contemporary debates about LGBTQ rights because it suggests that the First Amendment may yet have important work to do on behalf of LGBTQ rights--it could still be used as a means to further expand social understandings of sexuality and gender identity. (18) This is not to suggest that the doctrinal shift from First Amendment to equal protection wholly explains the more static picture of queer identity that emerged as the movement evolved; a host of factors likely contributed to that change. (19) Rather, the doctrinal change may have, at the very least, facilitated and reinforced the more traditional trajectory of the movement. This in turn suggests that the First Amendment may prove to be a more nimble and dynamic instrument for exploring queer identity going forward.

The Review expands this argument in three Parts. Part I provides a condensed account of the history unearthed by Ball, highlighting the First Amendment's formative role in establishing legal protections for LGBTQ individuals. Simultaneously, Part I foregrounds how First Amendment legal frameworks, particularly free expression doctrine, enabled a relatively capacious understanding of different queer identities and the sexual and political conduct that may accompany them.

Part II contrasts the narratives and themes employed by the early free expression cases with the more circumspect and traditional narratives advanced on behalf of LGBTQ people in the equality jurisprudence that followed. This Part offers original research, examining the complaints in roughly ninety same-sex marriage cases, involving around 600 plaintiffs, pending in the months before the Supreme Court's decision in Obergefell made same-sex marriage the law of the land. (20)

Finally, Part III suggests that the First Amendment still has important, affirmative work to do on behalf of LGBTQ individuals. In particular, because of the shift away from expression and toward equality, some of the labor that the First Amendment could have done to protect queer sexuality and gender remains unfinished. I suggest that renewed attention on the First Amendment as a means of advancing LGBTQ rights may be warranted.

1. THE FIRST AMENDMENT AS FORMATIVE

   Before queer people could make any claims to equality, they had to have the right to makes claims at all. They also needed the ability to associate and organize. And so, as Ball diligently narrates, litigation during the 1950s, 1960s, and 1970s under the First Amendment proved to be a critical first order of business under what Justice Antonin Scalia would later deem "the homosexual agenda." (21) Put differently by Ball, the First Amendment and subsequent equality guarantees are "inextricably linked," with the First Amendment "laying the groundwork for the initial articulation of equality claims and the later attainment of equality objectives." (22)

   Ball analyzes three principal categories of LGBTQ First Amendment litigation. The first centers on free speech challenges to obscenity law. Indeed, as Ball explores, the first two LGBTQ cases to ever be considered by the Supreme Court were challenges to government efforts to censor publications discussing gay and lesbian subject matter as violating obscenity laws (pp. 36-41). In One, Inc. v. Olesen, (23) the Court summarily reversed censorship imposed by the Postmaster of Los Angeles, who refused to distribute "One, The Homosexual Magazine," which was dedicated to "dealing primarily with homosexuality from the scientific, historical and critical point of view." (24) The volume at issue contained, among other items, a story of a lesbian successfully attempting to court another woman and a poem discussing sex between males at public toilets. (25)

   Then, in Manual Enterprises, Inc. v. Day, the Court held that the publication of nude or near-nude male models in so-called "physique magazines" targeted toward gay male audiences could not be regulated as obscene even though they appealed to gay men's prurient interest because they were not patently offensive. (26) After these two cases, "the government could not censor a publication dedicated to exploring the place of sexual minorities in society," nor could it punish publication of gay erotic material that did not meet the general definition of obscenity. (27)

   The second category centers on freedom of association. In cases ranging from prohibitions on gay bars to refusal to recognize queer student groups, from the 1950s to 1970s, courts began to recognize the right of LGBTQ people to congregate, socialize, and organize for the purpose of...