Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation

312 Pages·2006·1.18 MB·English

by  Ellen Ann Andersen

Out of the Closets and into the Courts
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Out of the Closets
& into the Courts
Legal Opportunity Structure and Gay Rights Litigation
ELLEN ANN ANDERSEN
the university of michigan press ann arbor
Copyright © by the University of Michigan 2005
All rights reserved
Published in the United States of America by
The University of Michigan Press
Manufactured in the United States of America
cPrinted on acid-free paper
2008 2007 2006 2005 4 3 2 1
No part of this publication may be reproduced, stored
in a retrieval system, or transmitted in any form
or by any means, electronic, mechanical, or otherwise,
without the written permission of the publisher.
A CIP catalog record for this book is available from
the British Library.
Library of Congress Cataloging-in-Publication Data
Andersen, Ellen Ann.
Out of the closets and into the courts : legal opportunity
structure and gay rights litigation / Ellen Ann Andersen.
p. cm.
Includes bibliographical references and index.
isbn0-472-11397-6 (cloth : alk. paper)
1. Gays—Legal status, laws, etc.—United States. I. Title.
kf4754.5.a963 2004
342.7308'7—dc22 2004014190
to my partner,
Susanmarie Harrington,
and our daughter,
So‹a Ksenia Andersen Harrington
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Contents
List of Figures ix
List of Tables x
Acknowledgments xi
one
The Puzzle of Gay Rights Litigation 1
two
LOS and the Emergence of Gay Rights Litigation 17
three
An Overview of Lambda and Its Litigation 27
four
Sodomy Reform from Stonewall to Bowers 58
five
Sodomy Reform from Bowersto Lawrence 98
six
The Law and Politics of Antigay Initiatives 143
seven
The Case of Same-Sex Marriage 175
eight
LOS and Legal Change 203
Afterword 219
Notes 235
References 261
Table of Cases 275
Index 281
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Figures
1. The stages of sodomy reform, 1960–2003 61
2. Comparison of states considering Model Penal Code in
stages 2 and 3 73
3. Feeling thermometer ratings for lesbians and gay men,
1984–2000 115
4. Attitudes about same-sex sexual relations, 1973–2002 116
5. Support for employment rights, 1988–2000 117
6. Support for legal recognition of same-sex couples,
1996–2003 118
7. Number of states with laws speci‹cally limiting marriage
to opposite-sex couples 182
Tables
1. Size and Scope of Lambda’s Docket, 1973–82 30
2. Comparison of Lambda’s Docket in Its First and
Second Decades 38
3. Breakdown of Lambda’s Income by Source, 1980–2002 45
4. Comparison of Lambda with Other Gay Legal
Groups, 1996 47
5. Comparison of Lambda’s Docket in Its Second and
Third Decades 48
6. Comparison of Outgoing and Incoming Justices during
Reagan’s Presidency 76
7. Supreme Court Votes in Bowers 77
8. Ad-Hoc Task Force’s Predictions in Bowers 88
9. Breakdown of Post-BowersSodomy Law Challenges 105
10. Lambda/ACLU Predictions about Supreme Court Voting
Patterns in Hypothetical Sodomy Challenge 126
11. Breakdown of Antigay Initiatives and Referenda 144
12. Comparative Ranking of Justices in Bowersand Romer 163