46 Pages Posted: 16 Apr 2008
Date Written: April 13, 2008
This paper describes political participation by lesbian, gay, bisexual, and transgender (LGBT) persons as an indication of why all legislative classifications involving sexual orientation and/or gender identity should receive careful attention from the courts. We usually think of the courts as using equal protection analysis to protect powerless minorities, but the Court in Cleburne v. Cleburne Living Center noted how most legislators showed great solicitude for the mentally retarded even as it struck down the municipal ordinance that imposed extra burdens on them. Indeed, the courts should reward active participation in the political process by minority groups by ensuring that they have unfettered access to that process. This article also discusses one of the most important and frequently overlooked decisions in LGBT civil rights law, One, Inc. v. Olesen. This is a 1958 decision in which the Supreme Court decisively protected the rights of early lesbian/gay activists to pursue their political agenda through the use of the mails. I argue that this decision was essential to the future of the movement and that the First Amendment is an important place to look for LGBT civil rights claims.
Keywords: lesbian, gay, bisexual, transgender, masturbation, bestiality, incest, adultery, morals, majority tyranny, equal protection, first amendment, fourteenth amendment
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