Theorizing and litigating the rights of sexual minorities.

• Author: Levit, Nancy
• Position: The Works of Martha C. Nussbaum: Feminism and Liberalism; History, Identity and Sexuality; Gender and Development

It is an extraordinary honor to participate in a symposium that is a tribute to the works of Martha Nussbaum. She is not only one of the country's absolute best moral philosophers, but there is also simply nobody better at doing the deep thinking about what it means to respect the dignity of human beings. (1)

One of the best measures of a society is how it treats its vulnerable groups. A central idea Professor Nussbaum poses in many of her writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." (2) The strategic challenge in lesbian, gay, bisexual, and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. Martha Nussbaum has done tremendous theoretical work on the role of negative emotions, such as disgust and shame, in the criminalization of particular forms of sexual conduct. (3) This Article will focus on the roles of a positive emotion-love--and a procedural method of proof--science--in the shaping of laws defining the rights of sexual minorities. (4) While Professor Nussbaum does not explicitly address the functions of science in this area, she champions reason, and an examination of the types of empirical information she presents demonstrates a place for the scientific method in the search for social justice. A discussion of the role of love in LGBT rights litigation emanates, generally speaking, from a larger discussion of liberty and autonomy, while a discussion of the role of science stems, speaking even more generally, from a larger discussion of equality. To gain greater rights for sexual minorities, advocates must paint an inclusive picture of love and relationships and must insure that science is an ally rather than an enemy in the battle.

However, a tension has emerged in litigating both the substantive arguments about love and the procedural methods of using scientific proof: some of the litigation strategies to date have been built on a heteronormative ideal. This is not to say that the tensions are between theorists and litigators, who very often are, quite literally, on the same page on amicus briefs. (5) (Although, sometimes the trial and political strategizing has been explicit about proceeding in stages and intentionally leaving parts of the community behind, as with the Employment Non-Discrimination Act. (6)) This is to say that the litigation strategies raise theoretical tensions. Lawyers on the ground have to be concerned with pragmatic strategies, based on what works with courts. They need to consider the tactical arguments that might appeal to middle America, so they carefully cull model plaintiffs, issue planned media blitzes, and try to control the timing and geography of test cases. (7) What seems to be working, at least sometimes, with courts is the "homo kinship" model or "like-straight" logic to argue for parental rights or same-sex marriage. (8) The relational focus seems to be a necessary strategy to win, in the words of Carlos Ball, the "hearts and minds of straight Americans." (9) But this strategy may only reward the "good gays"--the ones who fit the Leave It to Beaver family model of Ward, John, Wally, and the Beave.

Part II of this Article addresses the ways portrayals of love and relationships have led to some LGBT litigation successes. (10) It explores the tensions in building rights arguments on a foundation of heteronormativity. The suggestion that this Article makes here is to broaden the storytelling. Even if an equal protection challenge depends on substantial similarity to a benefitted group, and even if lawyers want to architect the best possible case, there may be ways to weave in compelling stories of more members of the community than simply the "white picket fence" plaintiffs. (11) Here the experiences of prior feminist legal theorizing and litigating can serve as models. Sex equality litigators deftly brought private lives into the public sphere and created understanding of the different circumstances of women from all walks of life as part of the human condition. (12)

Part III of this Article explores the role of science in litigating LGBT rights. Sexual minorities have had an awkward relationship with science because of the medicalization of homosexuality and the continued conception of transsexualism as pathology. (13) In recent years, gay rights litigators have begun to use science and social science evidence to build their cases for equal rights. As one example, advocates have argued successfully for parental rights by drawing on a growing body of evidence that gay fathers and lesbian mothers provide equally healthy and supportive environments for their children as do straight parents. (14) Another more complicated example concerns arguments regarding the immutability of sexual orientation. (15) Some litigators have argued, and some courts have agreed, that because sexual orientation is essentially immutable, claims of gays and lesbians are deserving of heightened scrutiny. The immutability argument raises a number of theoretical difficulties, such as reinforcing perceptions of sexual minorities as abnormal or deviant, and it excludes some members of the community, such as bisexuals and the transgendered, from legal protection.

To avoid both the exclusion of certain groups and the problem of courts selectively applying scientific studies to support previously determined conclusions, this Article argues for a particular approach to the idea of scientific proof. LGBT rights litigators should push for courts to adopt a deeper and more thorough approach to scientific inquiry that insists on evaluating cumulative, comprehensive, and converging evidence. Here again gender justice advocates offer a model for the methodology of scientific proof. Feminists who litigated the early constitutional cases saw that their challenge was to depict the constructed nature of gender so that virulent forms of discrimination were understood as something other than the product of innate sex differences. They drew on evidence from science, history, literature, psychology, sociolinguistics, cultural anthropology, and sociology to offer a dynamic account of subordination that began to resonate with courts. Similarly, LGBT theorists are beginning to use a more multifaceted approach to briefing questions calling for scientific understanding. For example, recent briefs regarding the immutability of sexual orientation offer a more complex and nuanced view of sexual identity as having some biological influences but also being the product of constructed differences. This view of "constructive immutability" (16) is beginning to be persuasive to courts. (17)

The arguments that have been most workable for the LGBT civil rights movement have been those premised on sameness, but those arguments do not work where courts perceive differences. (18) Perhaps litigators can move beyond the heteronormative ideal by emphasizing, as Martha Nussbaum's works urge, the common features of personhood: those qualities of dignity and respect for the common humanity of all people. This emphasis would be on a different kind of sameness--shared humanity (19)--and more robust versions of both love and science can help with these litigation efforts.

2. LITIGATING LOVE

   1. Constitutional Protection for Love and Relationships

      Some of the most significant advances for sexual minorities have rested foundationally on love. These legal decisions over the past thirty or forty years have involved, for the most part, a recognition not of erotic love but of what Professor Nussbaum might call "agape," "a respect for relationships, for human social connections." (20)

      A number of decisions that are not about lesbian and gay rights have fundamentally shaped the Court's conception of families and love. The aptly named Loving case, of course, is the most obvious. In striking the antimiscegenation statute, the Court in Loving v. Virginia observed that the statute deprived the Lovings of due process and also that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." (21) We tend to forget that the pursuit of happiness is one of the three most important rights of a free people.

      There is a great moment in the oral argument in that case by the Lovings' attorney who said to the Supreme Court that Mr. Loving, a bricklayer, had managed to express the real essence of the issue better than any eloquent, expert lawyer could do in describing what the concepts of fundamental fairness and ordered liberty mean under the Due Process Clause. Richard Loving told his lawyer: "Tell the Court I love my wife ... and it is just unfair that I can't live with her in Virginia." (22)

      In Moore v. City of East Cleveland, (23) the Supreme Court struck down a housing ordinance that would have prevented grandchildren from living with their grandmother as a "single family," thus recognizing that people get to define their own families. (24) The happiness literature that is emerging in positive psychology shows the central place of families in people's happiness and that defining one's own family is crucial to that human flourishing. (25)

      Along the way, of course, there were some Supreme Court cases that may have gotten it flat wrong on love--Michael H. v. Gerald D., (26) for example. In Michael H., the mother conceived a child by Michael while she was married to Gerald, and Michael later established a parental relationship with the child. Michael challenged the California law that presumed that the husband of a married woman was the father of any children born during the marriage. The Supreme Court held that the marital presumption of paternity trumped the biological father's claim to visitation rights. (27)

      Even though the Supreme Court two decades ago could not see beyond the nuclear family model, at about this same time...