Gay Rights, Thick and Thin

66 Pages Posted: 25 Mar 2015

See all articles by Toni M. Massaro

Toni M. Massaro

University of Arizona College of Law

Date Written: 1996

Abstract

In this article, the author observes that constitutional bases for gay rights have rested primarily on "thick" doctrine - First Amendment, privacy, and equal protection caselaw - in an effort to secure strict scrutiny of antigay measures. Although attractive in some respects, these arguments pose significant risks of double-binds and boomerangs in the long run, even if they yield short-term legal victories. Moreover, "thick" arguments are sufficiently porous to support judges' chilly responses to gay rights-responses that cannot be explained by inexorable doctrinal logic, but instead arise from hostility toward homosexuality in particular, and ignorance about sexuality in general. Thus, the article argues for invoking "thin" doctrine - rational basis analysis - to expose these underlying factors. "Thin" doctrine directs judicial attention away from distracting doctrinal complexities and toward the central issue: "What is wrong with homosexuality?" Thin doctrine answers this question by posing fewer risks of double-binds, avoiding attempts to define homosexuality, and requiring minimal revision of the existing doctrinal structure. Finally, responses to this question are framed by consulting emerging interdisciplinary work that grapples with the unreason of Bowers v. Hardwick. The recent decision of Evans v. Romer is an important illustration of how thin doctrine can succeed where more ornate legal theories fail.

Keywords: homosexuality, constitution, rights, strict scrutiny, rational bases, Bowers, Romer

Suggested Citation

Massaro, Toni Marie, Gay Rights, Thick and Thin (1996). 49 Stanford Law Review 45 (1996); Arizona Legal Studies Discussion Paper. Available at SSRN: https://ssrn.com/abstract=2584696

Toni Marie Massaro (Contact Author)

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

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