an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
First, I want to express not only my excitement at the
opportunity to participate in the upcoming ACS conference but also my
apprehension at being part of the opening panel. Assessing the state of sexual
freedom, as this panel is charged to do, certainly calls the question of where
we stand 40 years after Roe and 10 years after Lawrence. Indeed, it calls
multiple questions, a daunting array in which I would include:
vWhat is the state, not just of sexual freedom,
but also of the civil rights paradigm in contemporary American law and society?
vWhich social institutions most powerfully shape
the popular discourse of sexual freedom and what are the consequences of
developing the meaning of sexuality in those venues?
vWhy are reproductive rights seemingly
languishing in a political and legal coma, while popular support for LGBT
rights appears to grow at almost miraculous speed?
vAre there signs of a viable
discursive/political/legal strategy that would encompass the liberty/equality
claims of the most marginalized as well as the most conventional sexual actors?
vWhat’s law got to do with it?
[I invite others to suggest additional queries.]
This post surely will not produce authoritative answers to
any, much less all, of those questions. Instead of making that attempt, let me
outline a few of my starting premises for building an analysis.
The LGBT rights movement owes an immeasurable debt to the
racial justice movement, which created the American concept of a civil rights
movement. The civil rights movement produced a scripture-like narrative of
triumph and redemption that has inspired every campaign for social justice
since the middle of the twentieth century. This narrative now attaches to LGBT
rights, as evidenced by how frequently commentators describe LGBT equality as
“the civil rights issue of our time.” For purposes of this discussion, let us
assume that it is, for better and for worse.
What civil rights movements and arguments framed under the
rubric of equality do best, and a project for which the law is perfectly
suited, is ending de jure exclusions and categorical inequalities. The Supreme
Court did precisely that in Lawrence and it may, in the near or distant future,
do that again in a marriage case. The dynamics driving a mobilization for civil
rights generates challenges to formal classifications by the state, with a
parallel social process involving the increasing normalization of the excluded
group or identity. When these forces converge, what once seemed an impenetrable
wall can turn out to be hollow.
What civil rights movements and equality arguments do not do
so well is dismantling hierarchies. Let me suggest another anniversary to mark
at this conference: 30 years ago, Gayle Rubin posited a hierarchy of
sexualities, with groups such as sex workers and SM activists at the bottom.
That hierarchy has changed very little since then, and most of the groups who
reside at the bottom have moved virtually not at all.
If we measure the state of sexual freedom by the civil
rights paradigm, it is in terrific shape. In fact, possibly the greatest gift
from the mythologized history of civil rights in the 1960’s is the sense of the
inevitability of triumph and redemption that now attaches to the LGBT movement.
I would bet that the aspect of the gay marriage debate about which the greatest
number of people agree is that the eventual outcome, i.e., nationwide
legalization, is inevitable. The best evidence for the claim of inevitability
may be demographic data, but the frame of inevitability for formal equality was
crucially shaped by the American experience of successive civil rights
If, however, we measure the state of sexual freedom not in
civil rights terms, but in anti-hierarchy terms, the conclusion is far less
optimistic. The fragility of abortion rights is illustrative. The Court’s
decision in Roe, even as reconfigured somewhat more along women’s equality
principles in Casey, triggered less an end to exclusion than a protracted
forward-backward dance that has left in place a sex/gender hierarchy, with
adolescent and poor women who are abortion “recidivists” at the bottom.
I make no predictions. But should there be any doubt about
the political contingency of right claims to equal opportunity beyond an end to
formal exclusion, let us remember what is at stake in Fisher v. University of
Nan Hunter is Associate Dean, Graduate Programs, and Professor of Law at Georgetown University Law Center. You can reach her by e-mail at ndh5 at law.georgetown.edu