A day and a half conference sponsored by the American Constitution Society, and co-sponsored by the Williams Institute and others, will explore where we stand today on the legal protection of multiple aspects of sexual freedom, a decade after Lawrence v. Texas and 40 years after Roe v. Wade. The conference, to be held at UCLA Law School, will kick off Friday morning. It’s an exciting line-up of speakers. Anyone will be able to attend virtually via web streaming.
Most of the speakers have posted comments on the topic on balkin.blogspot.com/Balkinization. Here’s mine:
First, I want to express not only my excitement at the opportunity to participate in the upcoming ACS conference but also my apprehension at being part of the opening panel. Assessing the state of sexual freedom, as this panel is charged to do, certainly calls the question of where we stand 40 years after Roe and 10 years after Lawrence. Indeed, it calls multiple questions, a daunting array in which I would include:
• What is the state, not just of sexual freedom, but also of the civil rights paradigm in contemporary American law and society?
• Which social institutions most powerfully shape the popular discourse of sexual freedom and what are the consequences of developing the meaning of sexuality in those venues?
• Why are reproductive rights seemingly languishing in a political and legal coma, while popular support for LGBT rights appears to grow at almost miraculous speed?
• Are there signs of a viable discursive/political/legal strategy that would encompass the liberty/equality claims of the most marginalized as well as the most conventional sexual actors?
• What’s law got to do with it?
[I invite others to suggest additional queries.]
This post surely will not produce authoritative answers to any, much less all, of those questions. Instead of making that attempt, let me outline a few of my starting premises for building an analysis.
The LGBT rights movement owes an immeasurable debt to the racial justice movement, which created the American concept of a civil rights movement. The civil rights movement produced a scripture-like narrative of triumph and redemption that has inspired every campaign for social justice since the middle of the twentieth century. This narrative now attaches to LGBT rights, as evidenced by how frequently commentators describe LGBT equality as “the civil rights issue of our time.” For purposes of this discussion, let us assume that it is, for better and for worse.
What civil rights movements and arguments framed under the rubric of equality do best, and a project for which the law is perfectly suited, is ending de jure exclusions and categorical inequalities. The Supreme Court did precisely that in Lawrence and it may, in the near or distant future, do that again in a marriage case. The dynamics driving a mobilization for civil rights generates challenges to formal classifications by the state, with a parallel social process involving the increasing normalization of the excluded group or identity. When these forces converge, what once seemed an impenetrable wall can turn out to be hollow.
What civil rights movements and equality arguments do not do so well is dismantling hierarchies. Let me suggest another anniversary to mark at this conference: 30 years ago, Gayle Rubin posited a hierarchy of sexualities, with groups such as sex workers and SM activists at the bottom. That hierarchy has changed very little since then, and most of the groups who reside at the bottom have moved virtually not at all.
If we measure the state of sexual freedom by the civil rights paradigm, it is in terrific shape. In fact, possibly the greatest gift from the mythologized history of civil rights in the 1960’s is the sense of the inevitability of victory over irrational bias that now attaches to the LGBT movement. I would bet that the aspect of the gay marriage debate about which the greatest number of people agree is that the eventual outcome, i.e., nationwide legalization, is inevitable. The best evidence for the claim of inevitability may be demographic data, but the frame of inevitability for formal equality was crucially shaped by the American experience of successive civil rights movements.
If, however, we measure the state of sexual freedom not in civil rights terms, but in anti-hierarchy terms, the conclusion is far less optimistic. The fragility of abortion rights is illustrative. The Court’s decision in Roe, even as reconfigured somewhat more along women’s equality principles in Casey, triggered less an end to exclusion than a protracted forward-backward dance that has left in place a sex/gender hierarchy, with adolescent and poor women who are abortion “recidivists” at the bottom.
I make no predictions. But should there be any doubt about the political contingency of right claims to equal opportunity beyond an end to formal exclusion, let us remember what is at stake in Fisher v. University of Texas, the affirmative action case before the Supreme Court this term.