Gay American Deviance: Using International Comparative Analysis to Argue for a Free Speech and Establishment Clause Approach to Furthering Gay Marriage in the United States
86 Pages Posted: 9 Apr 2012 Last revised: 30 Jul 2015
This article puts comparative and constitutional law scholarship into dialogue to show how LGBT Americans are fundamentally different from queer individuals and communities elsewhere in the world. Abroad, many queer groups are advocating for “status”-based rights to vote, legal employment, and public education, while in the U.S., such issues have never been at the center of the gay rights movement. Instead, LGBT Americans have sought “conduct”-based rights, like marriage, that have been circumscribed by the values of the religious majority.
For this reason, the Fourteenth Amendment anti-subordination framework heavily utilized by U.S. gay rights activists is not adequate. LGBT advocates in the U.S. should also pursue First Amendment expressive freedoms and freedom from state-sponsored majoritarianism, similar to those available to religious minorities. As an additional benefit, refocusing LGBT advocacy and retreating from the effort to gain Fourteenth Amendment suspect class status for gay people will legitimize the American gay rights movement both on its own terms as well as in the eyes of traditional civil rights advocates.
Keywords: Gay rights, LGBT, First Amendment, Freedom of expression, Establishment Clause, Fourteenth Amendment, Comparative law, Anti-subordination, Post-colonial, Civil rights
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