[The Montana Professor 23.1, Fall 2012 <http://mtprof.msun.edu>]
Carlos A. Ball
Boston: Beacon Press, 2010
286 pp.; $27.95 hc
Henry Gonshak, PhD
Professor of English and Liberal Studies
Montana Tech of the University of Montana
What is the current legal status of gays and lesbians in America? For many supporters of gay rights, it must seem that progress toward equality is proceeding at a glacial pace. For many opponents, in contrast, the legal victories gays have already achieved appear to augur societal collapse. The truth, according to Rutgers law professor Carlos Ball's dry but informative From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation, is that, as with prior struggles for equality among women and African-Americans, the courts are proceeding in a slow (at times with a step backward taken after two steps forward), incremental way toward ensuring that gay, lesbian, bisexual, and transgendered Americans are afforded all the legal rights granted to their heterosexual fellow citizens. That pace may be frustrating to gay rights advocates, but patience is appropriate, because the overall picture is optimistic. As an adherent of gay rights myself, I took heart from Ball's well-supported thesis. While Ball is clearly in favor of the broad agenda of gay rights (his book was published in the "Queer Action/Queer Ideas" series of Beacon Press), this is a balanced work, with the author fairly summarizing the arguments of anti-gay opponents. Although general readers may find the book's reliance on legal terminology confusing, they should persevere, because gay issues should matter to anyone concerned about human rights in America, including those on our college and university campuses.
The book's first case concerns Leslie Blanchard, a 52-year-old gay New Yorker who in 1986 died of AIDS in the arms of his longtime partner, Miguel Braschi. After Blanchard's death, the owner of his rent-controlled Manhattan apartment, where he and Braschi had lived for many years, tried to throw Braschi out and raise the rent, on the grounds that Blanchard and Braschi had no legally recognized relationship. But a New York appellate court ruled that, given the lengthy intimacy between the two men, which included financial ties, Braschi had a legal right to Blanchard's apartment. Nevertheless, the court also ruled that Blanchard and Braschi's relationship did not constitute a marriage, and, of course, it would be many years before gay rights groups would push that issue forward in the courts. However, according to Ball, Braschi established some crucial precedents: "Although the issue, strictly speaking, was limited to the issue of rent control, its reasoning, which focused on emotional and economic interdependency rather than on the existence of legal formalities, made it more difficult for government officials to reject out of hand the notion that same-sex couples could constitute families and that they were entitled to at least some of the protections afforded by law. To put it simply, same-sex couples after Braschi were no longer legally invisible" (59).
The plaintiff in the second case was Jamie Nabozny, a gay teenager in Ashland, Wisconsin, in the early 1990s, who was relentlessly harassed at his high school for being open about his sexuality, with classmates spitting on him, urinating on him in the school bathroom, and mock-raping him in the halls. When Nabozny protested this treatment to school officials, administrators told him that because he was openly gay, he had invited this abuse. Ball reports, "A study conducted by the federal government in the late 1980s found that 45 percent of gay males and almost 20 percent of lesbians had experienced verbal abuse or physical assault in high school" (78). Moreover, a 1998 survey conducted by the Gay, Lesbian and Straight Education Network of the nation's forty-two largest school districts found that half of them did not have any policy or program in place aimed at safeguarding the rights of LGBT students. When a 1996 Wisconsin court awarded Nabozny a substantial settlement, it sent a message to teachers and administrators that they must protect gay students from homophobic abuse.
Meanwhile, in 1992, in actions that would lead to the book's third case, a conservative Christian group in Colorado had gathered enough signatures to place on the state ballot an initiative called Amendment 2, which denied homosexuals any "protected status" if they were victims of discrimination. The purpose of the initiative was two-fold: to repeal all the gay rights laws which had already been enacted in Colorado, and to ensure that no such laws were passed in the future. Backers of the amendment insisted that, rather than denying homosexuals basic rights enjoyed by the majority, they were preventing gays from being accorded "special rights"—an argument that resonated with white voters enraged by affirmative action legislation aiding blacks and women. Amendment 2 passed by a slim majority: 53.4 percent of Colorado voters. When the amendment was later repealed by the Colorado Supreme Court, supporters of Amendment 2 took their case before the US Supreme Court. In a momentous six to three decision, the high court affirmed the judgment of the Colorado Supreme Court by ruling that Amendment 2 was unconstitutional. Writing the majority decision, Justice Anthony Kennedy maintained that the court held "a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution" (135). In other words, the court ruled that the Constitution forbids lawmakers from singling out a particular minority group and decreeing that the legal protections afforded all other Americans did not apply to them. The lead attorney for the defense, the ACLU's Matthew Coles, was moved to tears by Kennedy's words, stating, "The message could not have been clearer. To the court, sexual orientation [was] the moral...equivalent of race and sex discrimination" (136).
Chapter Four of From the Closet to the Courtroom focuses on the 1992 decision of the Hawaii Supreme Court to legalize gay marriage in response to a suit brought by a lesbian couple, Genora Dancel and Ninia Baehr—a decision that, even though it was later repealed, set the scene for the gay marriage debate currently roiling the country. Dancel first considered petitioning for the right to marry Baehr after Dancel had to rush Baehr to the emergency room when the latter was afflicted with a painful ear infection. The hospital stay was costly, but when Dancel, who had a job at a television station, tried to get Baehr covered by her employer-provided health insurance, she discovered that such coverage was available only to spouses and children of employees. The American Civil Liberties Union was initially reluctant to take on Dancel and Baehr's case, both because it considered the legalization of gay marriage to be an unwinnable battle and because the ACLU tended to view marriage as a patriarchal institution inherently hostile to homosexuals, who were better off appealing for civil unions and other arrangements that would grant gays the rights afforded by marriage without saddling them with the drawbacks of legal marriage. But the ACLU eventually changed its mind, deciding, in Ball's words, that "by pursuing same-sex marriage, the movement for the first time would have the opportunity to put the relationships and families of LGBT people front and center and, by doing so, show that there was much more to them than just an amalgamation of sexual acts and desires.... Through the process of formally demanding admission into the institution of marriage, LGBT individuals would show the American public that they were capable of entering and remaining in committed relationships—and, for those who had them, of raising children—in ways that did not differ fundamentally from the experiences of heterosexuals" (165).
After the case had made its way through the lower courts, on December 3, 1996, the Hawaii Supreme Court handed down a ruling concluding that the state had failed to make its case that denying marriage to same-sex couples upheld any compelling interest. The judge, Kevin Chang, also ruled that children currently living with gay parents would be better off if their parents were given the opportunity to wed. Chang's decision ignited a political firestorm in Hawaii and across the rest of the country. Conservatives charged that the court had abdicated its commitment to interpreting the Constitution and instead was allowing its own political agenda to influence its decisions. In response, right-wing groups placed on the state ballot a constitutional amendment defining marriage as exclusively between one man and one woman, which passed by a wide margin, 69 to 29 percent. After waiting an entire year, the Hawaii Supreme Court eventually issued a ruling that the constitutional amendment had invalidated its earlier ruling. Nonetheless, Ball concludes that, by placing the debate over gay marriage squarely in the media spotlight, Baehr forced the American public to think about an issue that previously it had probably spent little time reflecting on and perhaps to conclude that allowing gays to wed might not be such a dreadful idea. His view is supported by the fact that gay marriage is now legal in six states (while in two others, Washington and Maryland, the law has been passed but not yet enacted). Moreover, a recent poll reveals that Americans now support the right of homosexuals to wed by a 53 percent majority. These poll numbers have coincided with President Obama's June 2012 announcement that he supports gay marriage. On the other hand, the push for gay marriage has also inspired a right-wing backlash, with thirty states passing "Defense of Marriage Acts" similar to Hawaii's. In the most recent backlash decision, also in June of 2012, voters in North Carolina passed a resolution denying not only marriage but also civil unions to gay couples (while denying civil union status to unmarried heterosexual couples as well).
In the last case the book covers, Houston police in 1998 arrested two gay men, John Lawrence and Tyron Garner, for allegedly engaging in sodomy in Lawrence's apartment, which violated a Texas law prohibiting consensual anal intercourse between adult homosexuals (though not between heterosexuals). The case was muddled from the start by the fact that Lawrence and Garner, who were not in a relationship, vigorously denied having sex, and only one of the four policemen on the scene claimed to have seen them engaging in sodomy. Nonetheless, the ACLU decided to use the arrest to challenge the constitutionality of Texas' anti-sodomy law, eventually bringing the case to the US Supreme Court, which ruled in their favor. The ruling reversed a 1986 decision, Bowers v. Hardwick, which maintained that gays could be arrested for having sex in the privacy of their own homes, and that the claim, made by the defenders of the anti sodomy law, that adult homosexuals should be allowed to choose their own sexual partners was fallacious. The court's landmark refusal to criminalize gay sex has had profound consequences for the societal treatment of homosexuals, revoking previous anti-sodomy laws which had been used to justify discrimination against gays in employment, and to deny custody rights to gay parents. In Ball's words, "the case came down to the seemingly indisputable proposition that it was simply outrageous, in contemporary America, for two adults to have to publicly defend the right to be sexually intimate with each other" (215).
In an intriguing conclusion, Ball considers the important question of whether gay rights activists should pursue their agenda primarily through the courts or through the legislature. A strictly legal strategy has obvious drawbacks, the most evident being that judges, who are often unelected, may render decisions that conflict with the will of the majority. For example, Roe v. Wade, which legalized abortion, incited a huge outcry from conservatives about the alleged evils of judicial "activism," and sparked a massive anti-abortion movement in America. But Ball points out that the role of the judiciary is not simply to parrot public sentiments, but rather to apply the Constitution to modern circumstances. If judges believe that gays are a minority who should receive the same rights and protections as other groups, they should so rule, even if a majority of the public disagrees. But Ball also maintains that, as the public becomes increasingly accepting of homosexuality, it might be wise for gay activists to shift from a legal to a legislative focus, arguing that "the pursuit of a judicial strategy has been especially important when the group in question is so stigmatized and politically impotent that the judiciary is, as a practical matter, the only governmental institution willing to entertain its claims for equal citizenship. As the movement begins to achieve important judicial victories, the broader society is required to take more seriously the interests and needs of these groups. This, in turn, makes legislative and political victories more likely" (261). The Obama administration's decision to drop the military's egregious "don't ask, don't tell" policy, finally allowing gay servicemen and women to serve openly, is one example which seems to support Ball's point that judicial victories are spurring political ones for homosexuals.
Since the publication of Ball's book in 2010, a new case has arisen which could have momentous consequences for Montana homosexuals. The ACLU is asking the Montana Supreme Court to grant same-sex partnership benefits on behalf of six gay Montana couples, including a couple from my hometown of Butte (which would reverse a lower court's ruling denying gay couples such benefits). A positive verdict would grant homosexuals similar rights to those married spouses enjoy, including inheritance rights and the rights to determine burial arrangements, the right to family medical and bereavement leave, the right not to testify against a partner in court, and the right to make medical decisions for a partner if he or she is incapable of doing so.
Gay Montana couples deserve no less. However, I think the ACLU's long-term strategy should be to use the legalization of domestic partnership benefits as a stepping stone to overturn Montana's "Defense of Marriage" constitutional amendment, passed in 2008, which defines marriage as solely between one man and one woman. When I asked a representative from the ACLU if the organization planned ultimately to try to legalize gay marriage in Montana, she replied that it did not, because the ACLU's polling indicates that legalizing gay marriage in Montana is simply impossible for the foreseeable future, while polls show that Montanans support domestic partnerships by a slim majority. The pragmatism of this strategy is unassailable, but domestic partnerships are nonetheless far from a perfect solution because other states are less likely to accept the status of a gay couple as domestic partners rather than as legally married spouses. Moreover, as Ball argues, "registering as domestic partners would...not make available to same-sex couples the myriad of federal rights and benefits that accompanied marriage" (179).
It appears that many Americans, including many Montanans, are willing to grant gays all the rights and privileges of marriage so long as these couples do not insist on calling their relationship a marriage. If homosexuals do gain the legal right to wed, the dubious argument usually goes, the traditional institution of marriage will somehow be threatened. The traditional institution of marriage is already threatened, as our 50 percent divorce rate indicates; that fact has nothing to do with gays wishing to wed but rather with such factors as the institution of no-fault divorce, the destigmatization of single parents and out-of-wedlock births, and the general difficulty of maintaining long-term intimate relationships in our hectic and atomizing society. On the other hand, if my gay friends in committed relationships are also allowed to wed, how can that possibly harm my own marriage? In fact, legalizing gay marriage might even strengthen traditional marriage, because as heterosexuals witness the eagerness of gays to marry, perhaps we will begin to refortify this crumbling institution ourselves.
Given the tenuousness of the arguments of the anti-gay marriage advocates, and the fact that America is becoming increasingly gay-friendly in rather dramatic fashion, I think the Montana ACLU may have miscalculated by determining that Montanans will never support gay marriage. Those of us in the professoriate in Montana who would back such a development should aid the cause not by preaching gay rights to our students but simply by including in an objective way the history and lives of gay people in our courses when such inclusion seems appropriate—that is, by reversing the tendency of the traditional curriculum to render homosexuality invisible. After all, studies have repeatedly shown that the more people learn about homosexuals, the less homophobic they become.
[The Montana Professor 23.1, Fall 2012 <http://mtprof.msun.edu>]