The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement

35 Pages Posted: 18 Aug 2010 Last revised: 14 Nov 2010

See all articles by David H. Schraub

David H. Schraub

University of California, Berkeley - School of Law

Date Written: August 17, 2010

Abstract

In many ways, the legal history of the struggle for gay rights tracks that of other marginalized groups throughout American history. Early challenges by a largely impotent movement were cavalierly dismissed by courts. But as gays and lesbians began to establish themselves in American society and assert themselves in the political arena, their fortunes began to turn, and they began securing legal victories as well.

However, the impact of these political triumphs on judicial protections was inconsistent. Some courts have cited these victories as proof of the unacceptable nature of anti-gay prejudice, and been more aggressive in protecting gays and lesbians from state-sponsored discrimination. Others have argued that these same victories are demonstrative of the political power possessed by the gay community, which no longer requires judicial solicitude and should at this point hash out its claims in the legislative arena.

The thesis of this Comment is simple. When gays possessed no political power, nobody protected them. When they possessed some, some - but only some - courts protected them. This trend line does not just run counter to the classic story of the proper judicial role regarding the protection of minorities, it has caused a massive gap in the court's equal protection and fundamental rights coverage. Because both having no political power and having some political power can and have been used as justifications for excluding gays and lesbians from the auspices of enhanced judicial scrutiny, it is evident that the entire premise behind the doctrine is flawed. Courts should not utilize a doctrinal prerequisite that they themselves are unwilling to enforce. Since courts are not willing to actually protect the politically powerless, I argue that this prong should be dropped from the heightened scrutiny test altogether. Instead, once a minority group has obtained enough political leverage to get on the legal radar screen, courts should look to the actual and historical presence of impermissible animus and unequal treatment to determine whether or not the group is deserving of additional judicial scrutiny.

Keywords: Constitutional Law, Gay Rights, Anti-Discrimination Law, Minority Rights

Suggested Citation

Schraub, David H., The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement (August 17, 2010). University of Chicago Law Review, Vol. 77, p. 1437, 2010. Available at SSRN: https://ssrn.com/abstract=1660510

David H. Schraub (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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