Signs of Progress on the Supreme Court

Yesterday, per Andrew Sullivan, plaintiff’s counsel in Perry v. Schwarzenegger sent this letter to Chief Judge Walker, whose ruling in the matter is currently pending:

Click to enlarge.

Sullivan treats this as a watershed. It is not that, in that it does not, singlehandedly, confer the talismanic “protected class” status on gay Americans. It is, however, a step in the right direction. Prior to CLS v. Martinez, no major case conferred a substantive rights on gays qua gays. Lawrence v. Texas, which forbade states from criminalizing sodomy, came close, but because it was decided under the Due Process clause, instead treated homosexuality as a conduct that one engages in, not a status that defines who you as a peson. Reverse that reasoning, and I’m not straight; I’m just a gay guy who, perversely, only sleeps with girls. Who knew!

Martinez moots this diminutive way of looking at the question of gay rights, and slyly adopts Sandra Day O’Connor’s concurrence in Lawrence as guiding, if not controlling law. Apart from validating homosexuality as an identity with legal meaning, it sets up part of the syllogism for eventually connecting homosexuality with other  statuses that cannot form a basis for classification, like race and gender, and makes the useful analogy to Loving v. Virginia painfully apparent.

By bypassing Kennedy’s majority opinion in Lawrence, Ginsburg’s lines in CLS also demolish his carefully-constructed wall, designed to keep gay marriage out. Kennedy’s opinion in Lawrence is at pains to explain why sex is not like marriage, and so, we find lines like this:

The [sodomy ban] statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.

Emphasis mine. So Kennedy strove to confine his due process analysis against ever becoming the foundation of a due process right to marriage (which exists in Loving only in dicta). But with Martinez, we don’t need the due process analysis; sodomy isn’t protected conduct just because we ought to be able to engage in that practice, as free men and women, but because it’s a vital part of the gay identity, with which the law ought not to interfere.

The gay rights movement suffers from the lack of a coordinated legal strategy, which the desegregation movement had in spades (and whose architect later sat on the Court — we miss you, Justice Marshall!). But by God, we might just get by without one.



  1. A couple of points:

    “…sodomy isn’t protected conduct just because we ought to be able to engage in that practice…but because it’s a vital part of the gay identity…”

    Is it though? I mean, is that how gay men see themselves? Brother, banker, husband, lover of anal sex? I don’t know that the average hetrosexual incorporates their sexual practices into their identity. Do gays? Is the way they have sex a ‘vital part their identity’? To be even more general, is sex a ‘vital’ part of their identity? That almost reduces them to some sort of animalistic beings and it seems kind of offensive.

    When I see a rainbow sticker on a car I don’t immediately think ‘that guy likes anal sex’ in much the same way that I doubt people look at my wedding ring and think, “He must love vagina”.

  2. You’re making what seems like a useless point. Maybe sex shouldn’t be the first thing people think about when they think about sexual orientation — I don’t know and don’t care — but it is a critical part of that identity, for everyone, whether or not it’s discussed. If you couldn’t sleep with your wife anymore, I’m betting you’d be pretty bummed. No?

    1. Believe me Ames, the older you get, the less you care about it.

      Back to my point though, sodomy laws were not created to prevent gays from marrying. They were created to harrass gays and keep them in the closet. Now that they are overturned gays are free to have all the sex they want in whatever manner they choose. I don’t really know how this extends to marriage though. You don’t have to get married to have sex. Even if sex were the ‘vital part’ of one’s identity that you claim it is (oh to be young and single again) it certainly doesn’t mean that marriage is the only vehicle through which one can fulfill that part of their identity. Or do you suggest we use marriage to send a clear message that Uncle Sam doesn’t like premarital relations?

  3. I don’t know what to do with this. Except to note that I think you’re reading it all wrong. I’m saying Due Process is the *wrong* analysis.

    1. You’re assuming I care about the legal analysis (for the most part I don’t). I’m just trying to understand the notion that anal sex is a ‘vital part’ of gay men’s identity. I find it hard to understand from a cultural, psychological and moral perspective.

    2. In the same way that sex is a vital part of anyone’s identity? (Whether or not you yourself are a fan at this particular time seems entirely besides the point.)

      1. I think maybe we should define ‘vital part’. When you’re listing the traits that make you tick, where does sex fall on the list for most people? How does it stack up to career, family, faith, whatever. I suspect with a real honest look it’s fairly low on the priorities.

  4. I think when I say “sex,” we’re using different definitions. So, some clarifications. I never meant to imply any distinction between the sexual habits of gays & straights. So, when I say sex is “a vital part of the gay identity,” and clarify it to “sex is a vital part of anyone’s identity,” I intend the redefinition to control. Sex is “a vital part of the gay identity” only because it is “a vital part of anyone’s identity.”

    And, when I say that about sex, I’m not talking about the right to engage in random hookups, or what have you, a right I’ll defend for others but have no interest in myself. I’m talking about sex as an important incident to a healthy, fulfilling, and meaningful romantic relationship. It’s interesting that you default to the former meaning, and I to the latter.

    Properly understood, I think you’d be hard-pressed to argue against the value of that type of activity. As for the priority level, I think given an “honest look,” to most people, and especially most people in my generation, the value of that relationship is pretty high. Even to my religious friends, given a choice between their husband/wife/fiance (and all the present and expected value that person embodies), and their God, most would pick their partner. Marge Simpson’s line, “Don’t ask me to pick between my man and my God, because you can’t win,” doesn’t really hold a lot of water anymore.

    This is probably more disjointed than I wanted it to be. But to summarize, don’t discount the importance of sex as protected conduct because it’s “just sex.”

    1. “And, when I say that about sex, I’m not talking about the right to engage in random hookups, or what have you, a right I’ll defend for others but have no interest in myself. I’m talking about sex as an important incident to a healthy, fulfilling, and meaningful romantic relationship. It’s interesting that you default to the former meaning, and I to the latter. “

      I’m not sure where you see that I defaulted to ‘random hookups’, however I certainly don’t believe that sex is a mandatory component of marriage and vice versa. And like me you’re obviously not willing to say that people should only have sex if they are married. So then why differentiate between random hookups and sex in the context of a loving and romantic relationship? In the eyes of the law it’s all either pre-marital sex or marital sex. There is no legal way to define gradations of pre-marital sex even if we wanted to.

      So let’s say we agree with your generation and declare that sex is super-important to a romantic relationship. How does that affect marriage? Again, you don’t need marriage to have sex. And you don’t need sex to have a marriage (as many of my married friends will tell you). Liberals have also made it clear that the purpose of marriage is not procreation. So what purpose is there in linking sex to marriage (if any)? Even if sex was the most important thing in their lives, certainly you aren’t contending that the sexual needs of gay men can’t be fulfilled without marriage?

    2. If that’s your concern I think you need to reread the post. I never argued that legalizing gay sex implies legalizing gay marriage.

      1. Your words:

        “…Kennedy strove to confine his due process analysis against ever becoming the foundation of a due process right to marriage (which exists in Loving only in dicta). But with Martinez, we don’t need the due process analysis; sodomy isn’t protected conduct just because we ought to be able to engage in that practice…but because it’s a vital part of the gay identity…”

        You say that Martinez makes it clear that the sodomy is a ‘vital part of a gay man’s identity’ and you also suggest this is another step towards gay marriage. How so unless you are linking sex to marriage?

        1. The right to vote was an integral step on the road to the perception of women as equal to men (not saying we’re there yet), and equal pay for equal work is another. Doesn’t mean you have to be able to vote to get paid equally, but they both exist on a continuum. At least, I figure that’s what he means.

          1. I think this ruling is probably a step towards zero discrimination of gay men and women, nothing more. Fulfillment of one’s sexual identity and the ability to practice it legally has zero to do with marriage.

      2. No; I say the shift from conduct to identity-based analysis is what gets us to gay marriage. It’s abandoning the due process analysis in Lawrence for an equal protection based one that gets us where we want to be.

        1. But you still haven’t explained why marriage is needed to fulfill one’s sexual identity?

        2. I don’t think I’ve offered to explain that… I’ve never linked them in that way, though I have offered the reverse.

          1. So sexual idenity is NOT linked to gay marriage, but the ruling in Martinez that the way they have sex is part of the gay identity is still a step forward towards gay marriage?

            Is your blog only meant for the consumption of lawyers or would you like to try and explain things in a way people without law degrees can understand?

          2. Hmm. I didn’t realize it was that obtuse. The problem was that in Lawrence, the Supreme Court protected gay “conduct,” like sex, but explicitly limited that analysis to ONLY sex, not other types of relationship-styled conduct. Martinez treats sex as an incident to gay “status.” That analysis is easier to expand.

            1. “…other types of relationship-styled conduct”

              Please explain.

            2. Like marriage.

              1. Isn’t it a bit of a stretch to see Ginsberg’s reference to a personal relationship as a step towards marriage? Example, I assume this also means the state cannot create a law banning sex with siblings. But hat certainly doesn’t mean it’s a step towards sibling marriage. It just means that victimless sexual conduct is protected.

              2. It’s not a big step. It’s just an abandonment of a doctrine that had reached its logical conclusion, and would go no farther, for one that might someday.

                1. I think you’re suggestion that sex is a ‘vital part’ of one’s identity still creates problems if you intend to use it as a pillar in a future case. There are other victimless sexual practices that we certainly don’t want to use as grounds for granting marriage.

                  I’m curious though Ames – obviously gay mariage is a very big deal for you. You post on the topic a lot and you clearly think about it frequently. Seeing how gay marriage passed smoothly in several states already and is likely to continue to pass in other liberal states, why are you so committed to the court process? Why not allow indivdual states to decide for themselves? Or better yet, what if civil unions started to pass? You’ve expressed support for them before. Are you still on-board?

              3. And the abrogation of the theory that gays are just straights who sometimes have weird sex.

  5. I still think you’re misreading the post and ignoring clarifications.

    I do still suppoprt civil unions (as an intermediate step, not a final one). I think it’s “enough” until a supermajority of public opinion supports “marriage” so-called. But the state path is cold comfort when you consider that a substantial number of states will NEVER okay gay marriage, until it’s forced on them, like desegregation. Would Alabama have desegregated on its own? Maybe. In a century or so. But mandatory desegregation created a population accustomed to it, and eventually one that supported.

    1. According to standard liberal rhetoric there is still plenty of racism in this country so did forced desegregation really create a population accustomed to it? Wouldn’t you say that the changing atitudes in the South owe more to the passage of time tham government action? 100 years ago my Irish relatives were second-class citizens. Now they aren’t. The government had nothing to do with that.

  6. The dialogue between population and government is not one-way. I expect attitudes in the South were changing but would’ve taken their time, on their own. The government’s clear message that desegregation was Wrong was top-down to a lot of the population, not bottom-up, but would have accustomed a new generation to that message.

    Social mobility is something completely different.

    1. What happened with the Irish was not ‘social mobility’. It was an end to racism, plain & simple. Otherwise, how could they have possibly achieved social mobility without government intervention? Haven’t we been taught that the government must force social and economic equality on the masses?

      Ending segregation had zero to do with ending racism towards blacks. Read up on the busing riots in Louisville and Boston in the 1970s and that becomes fairly obvious. The reason that things have improved as far as they have is because people who grew up calling them ‘niggers’ are all dying.

      I realize that liberals and conservatives disagree on the size and role of the government in our lives but I think you grossly over-estimate the power of the government to change people’s social attitudes. If you think forcing gay marriage on the states that currently ban those marriages outright will win sympathy faster than simple social ‘progress’ I think you are really stretching the bounds of reality. Another thing to keep in mind is that this won’t be a visible change in the way desegregation was. If I see a stranger walking down the street who is gay and unmarried one day and the next day he is gay and married what outward sign is there that anything has changed? Unless he was extra swishty there’s a good chance I had no idea he was gay to begin with. It’s not like having a black student sitting next to you in a formerly all-white classroom or standing next to you in a formerly segregated bathroom. That was a very instant and very visbile sign that the old ways were gone.

    2. oneiroi · ·

      I can’t see how you’re just abandoning the importance of desegregation, but growing up in Texas, at a school that was highly mixed with people from several different countries, I do believe it changed my perceptions of different minorities in this country.

      You don’t grow up viewing African Americans as the people that go to the school across the city, who you never see or talk to (the scary “other). Instead, you see each person from each country as friends and classmates.

      Yes, older generations of “racists” are dying, but without the younger ones resisting it, we would just stay stagnant.

      On the homosexual front, haven’t there also already been polls showing that once a person is friends with a homosexual person, their support for homosexual rights go up?

      If people start seeing happy gay married couples, that could make people hesitate from categorizing them also as a unrecognized “other”. And just another person trying to live their life, with similar desires for relationship/sex/job/friendships/life/etc, married or not. The more it happens, inevitably, the more likely you would be to know a married gay couple.

      It’s much easier to villify someone as “gay”, when you also set up a system where they are treated differently. Even apart from marriage, you still have the blood donor rules, military, etc.

      That was a bit scatter-shot, hopefully that responded to some of this.

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