Saturday, October 10, 2009

The Constitutional "Gay Agenda": Robson's Saturday Evening Review

The Matthew Shepard Hate Crimes Act, ENDA, the repeal of "Don't Ask, Don't Tell" in the military, same-sex marriage and DOMA - - - these are often considered the "gay agenda."  Indeed, President Obama's anticipated speech tonight at a Human Rights Campaign dinner in Washington, DC, is expected to cover many of these issues, although according to preliminary reports, Obama's message will be one of patience and temperance, disappointing many activists.

(Update: These preliminary reports were confirmed after the speech, NYT here, WaPo here; the text of the speech is on here).

Yet not all "activists" would agree that the conventionally described "gay agenda" should be the goals of any LGBT legal reform movement.  Libby Adler (pictured below) ConLaw Prof at Northeastern University School of Law, argues that the ongoing "culture war,"  "while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run." 


In her article, The Gay Agenda, 16 Mich. J. Gender & L. 147 (2009), available in draft form on ssrn here,  Adler not only seeks to transcend the "culture wars," but argues that goals of "formal equality" between "gay and straight people," need to be replaced by goals enabling law "to create the best possible conditions against which a broad array of people can make choices."  In the context of the application of Loving to same-sex marriage arguments, Adler writes:

Formal equality has its merits, but it is not incontrovertible that formal equality is the highest value that law reformers could be pursuing at all times.  For one thing, the very term formal equality exists in opposition to substantive equality, and—as any student of affirmative action or workplace accommodations for working mothers will report—these goals can conflict.  A formal equality agenda can eclipse or even undermine other potentially worthy goals.  .  . . [t]he benefits of formal equality stand counterpoised to the costs associated with the pursuit of formal equality.  While the attainment of formal equality has undeniable fairness appeal, the pursuit takes place in the context of a culture war which is waged in normalization and rights discourses.

Instead, Adler posits several law reform agendas.  As a central example, she uses homeless adolescents.  By combining critical theory and real lives, Professor Adler demonstrates a methodology to assist the rethinking of "the gay agenda" as well as equality.

This is a thought-provoking and necessary article, worth reading (if you haven't already done so) and assigning.


Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Profiles in Con Law Teaching, Scholarship, Sexual Orientation, Sexuality, Teaching Tips | Permalink

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