The Gay Rights Question in Contemporary American Law

Rating:
Summary: Fascinating legal review pre-Lawrence.
Review: This is a fascinating book, targeted at lawyers, but readable by the informed lay person. Koppelman begins with an overview of Romer, in which the Supreme Court held that a Colorado state constitutional amendment violated the United States Constitution by providing that "neither the state nor any of its subdivisions could prohibit discrimination on the basis of homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Justice Kennedy wrote that the Amendment "has the peculiar property of imposing a broad and undifferentiated disability on a single named group," and Koppelman summarizes the decision as saying "if a law targets a narrowly defined group and then imposes on it disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate government interest then the court will infer that the law's purpose is simply to harm that group, and so will invalidate that law." *

He provides background on homophobia, quoting from a 1950 Senate committee investigation on the employment of homosexuals that "Even one sex pervert in Government tends to have a corrosive influence on his fellow employees... One homosexual can pollute a Government office."

He also points out that a recent study by the US Department of Justice found that homosexuals are "the most frequent victims [of hate violence today]," and public opinion polls show that homosexuals are the least liked group in America, with 28.2% giving homosexuals a zero ranking (on a scale of 0 to 100) with only 9% doing so for illegal immigrants and 2 percent doing so for Blacks.

Some of the book is spent trying to reconcile Romer with Bowers v. Hardwick (1986) in which the Supreme Court held that a law criminalizing homosexual sodomy did not violate the Due Process Clause. It is fascinating to see him struggle with Bowers when you know that his argument against this decision, which he characterizes as "a disastrously bad piece of judicial craftmanship," was to win the day only months after the book's publication in the Lawrence decision of 2003.

The thrust of the book is to examine four arguments for gay rights in general and gay marriage in particular:

The Equal Protection clause of the 14th amendment
The Due Process clause of the 14th amendment
The "Right to Privacy" arising out of Griswold and also Roe
Sex discrimination


In one fascinating section he shows how the Federal DOMA removes the full faith and credit assumption only from judgments in which the rendering court recognizes same-sex marriage but not in which the rendering court denies it. Thus, in a hypothetical wrongful death case, if the defendant "filed a counterclaim for declaratory judgment and relitigated in the liability in a new forum, and that court held that no wrongful death suit could lie because no marriage ever existed, that judgment would be entiteled to full faith and credit everywhere, even in the state that recognizes same-sex marriage....If on the other hand the new forum state refused to collude in this evasion and confirmed the judgemetn,t he second judgment, too, would under DOMA not be entitled to full faith and credit, because that second judgment too would have recognized the existence of a same-sex marriage. The defendant would then be free to relitigate the question anew in a third forum and a fourth and so on. When at last he found a court that would cooperate with his scheme, the judgment issued by that forum would then be entitled to full faith and credit throughout the United States!"



Koppelman's conclusion is that not only is the Federal DOMA unconstitutional, but it is so clearly targeted at homosexuals as a class that it strengthens the argument in favor of treating homosexuals as a suspect class, and thus laws against homosexuals are more suspect and held to a harder-to-defend standard. Thus, in the long run, he argues, DOMA will strengthen gay rights.