Greg Knotts:
“Rainbow Rights” dissects the history of gay and lesbian civil rights in America. Cain provides numerous examples and comparisons of the gay and lesbian civil rights movement to the other two major arenas of civil rights in America, namely the Women’s Movement (both waves of feminism including the 1920’s voting issues and the 1960’s and 1970’s issues of equality) and the Civil Rights Movement (for race and equality, largely involving black Americans). As with these former movements, gays and lesbians have had to wrestle with two major legal arguments: sameness and difference.
These two positions encapsulate two long-standing and competing legal arguments of the lesbian and gay civil rights movement: (1) that we are the same and thus should be equally respected, and (2) that we are different and our difference should be accorded equal respect. Equality arguments support the sameness thesis. Liberty and fundamental rights arguments support the difference thesis (p. 258).
“Rainbow Rights” traces litigation, organization and legislation through America’s history always viewing cases and groups of people through this typology of sameness and difference. Cain furnishes examples from the former movements, such as the Plessy v. Ferguson case where “separate but equal” was established for treatment of blacks. The case serves as a hallmark for societally influenced legislation that was eventually overturned by what is referred to as ‘a more enlightened court’ (p. 191). An example from the women’s movement is Hoyt v. Florida involving a woman wanting to challenge the state’s laws in the selection of jury service, effectively excluding women from serving. The Supreme Court upheld Florida’s discriminatory laws and held that the Equal Protection and Due Process Clauses, created for race cases, did not apply directly to this case involving women’s ‘rights.’ For the gay and lesbian civil rights movement, one landmark case is Bowers v. Hardwick, which focuses on privacy rights and consensual sex involving sodomy. The case was not before the courts until 1982. Hoyt had been enacted in 1961 and overturned in 1971. Plessy v. Ferguson occurred in 1896 and was finally overturned in 1954. It is clear that issues of gender and issues of race have been resolved, at least legislatively, before issues of same-sex consensual sex ever made it before the Court (p. 183).
To understand Bowers v. Hardwick more contextually, Cain walks us through a history of American legislation surrounding same-sex issues and the organization of same sex groups. As early as 1924, Henry Gerber had formed the Society for Human Rights in Chicago. His goal had been to help protect those who had been “ostracized for their different sexual orientation” (p. 74). Cain acquaints us with Henry Hay, Del Martin and Phyllis Lyon, founders of the Mattachine Society and Daughters of Bilitis, same-sex groups from the 1950’s with social, educational and political purposes (p. 75).
Cain introduces us to the “first successful gay rights case in America” which involved The Black Cat, a bar in San Francisco. This 1951 California Supreme Court case resulted in the “availability of public space for ‘known homosexuals’ to convene, but it also established a broader principle: that homosexuals had rights of access to business establishments, which included bars, under California’s civil rights statutes” (p. 80). The suit had been first established in 1949 as a direct retaliation to the police harassment of gays in bars. And yet in 1954 the city of Miami had enacted an ordinance making the sale of liquor unlawful to ‘known homosexuals’ and the police crackdown was so severe it became known in the gay press as “The Miami Hurricane” (p. 87). Laws differed then, and continue to differ today from city to city and from state to state.
Cases in the 1960’s and 1970’s involved these themes and others, such as discrimination in employment decisions. Litigators favored using the due process argument over the equal protection argument and this began to have effects on the movement, legislatively speaking (p. 124). The formation of the first gay and lesbian organizations on college campuses figured heavily during this time and their right to assemble was challenged through free speech arguments (p. 125). Backlash against perceived triumphs for gays and lesbians took the forms of Anita Bryant’s “Save Our Children” campaign, and the Briggs Initiative in California and its “No Promo Homo” rhetoric which “raised serious first amendment issues because it was directed at banning a particular viewpoint: that lesbian and gay men were acceptable human beings” (p. 126). The Briggs Initiative provided two victories for the gay rights movement: it was defeated and in the process had created national awareness and discourse about the nature of gay political speech.
These decades saw incremental victories for the movement, both in terms of public and private rights cases. Gays could assemble in bars and in student groups. Gays could be ‘out’ in civil service employment (p. 128). Gays had minor victories in family law and custody cases. But judges could still be extremely discretionary and rule according to their own beliefs as state family law was (and in large part, still is) the rule of the day (p. 152). Some states’ sodomy statutes were struck down, but most sodomy cases, by and large, were not protected under privacy rights.
In 1976, an experience with the Supreme Court in Doe v. Commonwealth’s Attorney left civil rights litigators, gay activists and lower courts with confusion over the Court’s intent. The case involved several gay male plaintiffs who said they feared arrest due to the Virginia statute against gay sodomy and their primary argument was that it violated their privacy rights to engage in consensual homosexual sodomy in private.The case was summarily affirmed, without benefit of argument [only three Justices had voted to hear oral arguments and a vote of four is needed]. Summary affirmances were typical in cases that were appealed to the Supreme Court directly from the district court. They were decisions made on the merits, and, thus, they bound lower courts. Nonetheless their precedential value was unclear because no rationale was ever stated for the affirmance (p. 141).
Thus, there was confusion among the various stakeholders — what did the Supreme Court mean to say about Virginia’s statute? And all of this, of course, is a landscape leading to the Bowers v. Hardwick case in 1982.
Bowers v. Hardwick is a case that began in Atlanta involving homosexual consensual sex in private. Arguments of public health, public morals, privacy in the home, and strict scrutiny [a group of people that merit special consideration due to historical bias] were all integral components of this case (p. 178). Ultimately the Supreme Court ruled 5 to 4 against the plaintiff, announcing then, “that the constitutional right to privacy did not extend to private consensual homosexual sodomy” (p. 179) at least in Georgia. Justice Powell (the ‘swing vote’) would publicly recant after he had retired, and admit what he considered to be a mistaken vote.
This law served as precedent up until 2003, effectively disallowing homosexual sodomy as a fundamental right, and allowing state legislatures to show only a ‘rational basis’ (i.e. the promotion of public morality) for criminalizing sodomy (p. 179. Although the case dealt directly with sodomy, everything from employment, housing and child custody became more difficult to win legislatively speaking (p. 181). Gay activists and litigators went on the lookout for a potential case that will be able to effectively overturn this decision by a more enlightened court in the same manner as Hoyt and Plessy v. Ferguson were overturned.
Cain also provides numerous examples in other arenas of gay and lesbian civil rights. There is much discussion over the gay marriage versus domestic partnership argument. Topics of Marriage, Coveture and Dependency are discussed in the context of post Stonewall feminists who fought diligently to make references to “person” [as opposed to male/female or husband/wife] part of the legal discourse. This effectively opened the door to same sex couples in the marriage debate (p. 156). Issues of immigration and adult adoption are part of the discourse.
There are public sphere rights involving pride parades and the Boy Scouts. The partnership of the ACLU and NAACP in relation to gay and lesbian litigation is discussed (p. 68). The formation of the Service Members’ Legal Defense Network and issues surrounding the primacy of the U.S. military in gay and lesbian matters also gets Cain’s attention (p. 192). The May 1996 Supreme Court Romer v. Evans decision involving Colorado’s Amendment 2 is deconstructed. The Court’s opinion was in favor of gays and lesbians, but served to further cloud the issue of equal protection versus fundamental rights (p. 210).
Cain offers a comprehensive look at America’s gay and civil rights movement. But this book is so comprehensive that it is not always comprehensible. If the law is not your area of expertise, the text can seem a little daunting. Terms are used, often without definition or explanation, which can sometimes make the text seem convoluted and difficult to comprehend. A glossary might have aided a novice law reader. The content, however, is comprehensive and certainly the etymology and history of the gay and lesbian civil rights movement becomes clear to any reader. Cain’s constant referral to her typology of private, public and family rights helps make the significance of each case more easily understandable in the context of the movement as a whole.
There is a sense that cases are presented without bias and facts are presented as facts, whether affecting the movement positively or negatively. Cain does an effective job of condensing what amounts to be over a hundred years of legislation involving the lesbian and gay civil rights movement, and offering a hopeful path for activists and litigators to walk down toward the future with a more enlightened court. The path will entail clearing up the argument over due process and equal protection — should gays and lesbians be protected because they are a part of human society or should gays and lesbians be protected because they are different than human society and that difference should be protected?
One thought to help bring clarity to this argument, in a discussion of Colorado’s Amendment 2, was said so plainly, it was profound in its simplicity: “Everyone has a sexual orientation” (p. 210). Laws that protect sexual orientation, protect everyone. It is easy for people of privilege (heterosexuals) to lose sight of this; just as it is easy for other people of privilege (white, high socioeconomic brackets, et.al.) to lose sight of their protection when other classifications are protected legislatively. It is easy to assume that the law is only for the disenfranchised and not the elite, but the law is for everyone. Legislating these kinds of classifications (race, gender, sexual orientation) simply gives an assurance that all people will be protected in a given situation (i.e. employment, housing, education).
Cain ends her discussion with a section titled “The Court of Public Opinion.” It is easy to realize what an extensive role this ‘court’ plays in society’s mores. But she reminds us that civil rights movements are aimed at erasing differences that have been imposed on a group of people by others, differences that construct the individuals in the group as less than fully human. In accomplishing that goal of erasure of negative differences, civil rights movements argue that every individual is a full member of the human race (p. 285).
She prompts activists and legislators to be on the lookout for cases that will promote this difference and help to acknowledge gays as fully human, not despite our gayness, but because of it (p. 285). Equal rights. Full citizenship. Fully human. Not a bad idea.
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