April 4, 2009
Mary Dunlap and the Constitutional Rights of Sexual Minorities: Robson's Saturday Evening Review
Mary Dunlap, The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy, 30 Hastings L. J. 1131, 1148-49 (1979).
Turning to the work of Mary Dunlap (1949 - 2003), the pioneering law professor and litigator, seems appropriate the day after the Iowa Supreme Court's opinion in Varum v. Brien (our most recent post here) and as the California Supreme Court continues to deliberate on the constitutional challenge to Proposition 8 (our most recent post here). Dunlap did not live to see the United States Supreme Court overturn Bowers v. Hardwick, a case she called a "grievous loss," and it is difficult not to wonder what she would think about post-Lawrence developments, especially in the area of state constitutional opinions finding same-sex marriage prohibitions unconstitutional. It is easy, of course, to assume she would have been overjoyed. However, it is also possible to imagine the ways in which she might criticize constitutional doctrine for continuing to reify the "present paradigm of two sexes" or to regulate sexual freedom.
Indeed, the entire volume of the Hastings Law Journal issue in which Dunlap's piece appears invites reflection. Published in March 1979, it is entitled "Sexual Preference and Gender Identity: A Symposium," with a full page dedication to Harvey Milk, 1930 - 1978, complete with a large photo of the murdered San Francisco Board of Supervisors member. The volume opens with the classic article by another pioneering law professor - - - Rhonda Rivera, entitled "Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States," and also includes an article by constitutional scholar David A.J. Richards (now at NYU), entitled "Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution."
While many of the specific doctrinal issues discussed in these articles may seem dated, the theoretical perspectives and constitutional arguments remain current. These articles from 1979 can be difficult to find in electronic copy, but are worth a trip to a law library's shelves.
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