Default Rules, Mandatory Rules, and the Movement for Same-Sex Equality

Abstract

Discrimination against sexual minorities pervades American law. Much of this discrimination exists in the form of "mandatory" rules denying equal rights in areas such as marriage, parenting, employment, housing, military service, immigration, taxation, and sexual privacy. Organizations and individuals within the gay, lesbian, and bisexual community are working mightily to combat this injustice. But as Professor Gallanis argues in this Article, the movement for same-sex equality has had too little to say about the "default" rules that likewise discriminate on the basis of sexual orientation. Using examples from the law of intestacy, health-care surrogacy, and guardianship, Professor Gallanis demonstrates how these rules can have significant and detrimental consequences, and urges the gay, lesbian, bisexual (GLB) movement to view the reform of these rules as an essential prerequisite to full equality.