Theorizing and Litigating the Rights of Sexual Minorities


THEORIZING AND LITIGATING THE RIGHTS
OF SEXUAL MINORITIES

NANCY LEVIT*

It is an extraordinary honor to participate in a symposium that is a
tribute to the works of Martha Nussbaum. She is not only one of the
country's absolute best moral philosophers, but there is also simply nobody
better at doing the deep thinking about what it means to respect the dignity
of human beings.'

One of the best measures of a society is how it treats its vulnerable
groups. A central idea Professor Nussbaum poses in many of her writings is
that all humans "are of equal dignity and worth, no matter where they are
situated in society."2 The strategic challenge in lesbian, gay, bisexual, and
transgendered (LGBT) rights litigation is how to get courts to see sexual
minorities as people worthy of equal dignity and respect. Martha Nussbaum
has done tremendous theoretical work on the role of negative emotions,
such as disgust and shame, in the criminalization of particular forms of
sexual conduct. 3 This Article will focus on the roles of a positive emotion-
love-and a procedural method of proof-science-in the shaping of laws

* Curators' and Edward D. Ellison Professor of Law, University of Missouri-
Kansas City School of Law. For their generosity of time and talent in commenting on prior
drafts or discussing ideas in this Article, I want to thank Susan Bandes, Terri Beiner, June
Carbone, Aaron Geary, Tim Geary, Elizabeth Glazer, Barbara Glesner Fines, Zachary
Kramer, Joan Mahoney, Sam Marcosson, Ann McGinley, and Allen Rostron. Lawrence
MacLachlan provided exceptional library research help and guidance. Lara Pabst, Andy
Schermerhorn, and Katie Woods supplied terrific research assistance.

1 See, e.g., MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME,

AND THE LAW 343 (2004) [hereinafter NUSSBAUM, HIDING FROM HUMANITY] ("[T]he idea of
human dignity, as a political idea, is pivotal to all known forms of political liberalism; it may
reasonably be included within the core of moral ideas that form the basis for a political-
liberal conception.").

2 "Human beings have a dignity that deserves respect from laws and social

institutions. . . .The idea of human dignity is usually taken to involve an idea of equal
worth." MARTHA C. NUSSBAUM, SEX AND SOCIAL JUSTICE 2 (1999) [hereinafter NUSSBAUM,

SEX AND SOCIAL JUSTICE].

3 NUSSBAUM, HIDING FROM HUMANITY, supra note 1, at 150, 256, 264-44, 362.



Columbia Journal of Gender and Law

defining the rights of sexual minorities.4 While Professor Nussbaum does
not explicitly address the functions of science in this area, she champions
reason, and an examination of the types of empirical information she
presents demonstrates a place for the scientific method in the search for
social justice. A discussion of the role of love in LGBT rights litigation
emanates, generally speaking, from a larger discussion of liberty and
autonomy, while a discussion of the role of science stems, speaking even
more generally, from a larger discussion of equality. To gain greater rights
for sexual minorities, advocates must paint an inclusive picture of love and
relationships and must insure that science is an ally rather than an enemy in
the battle.

However, a tension has emerged in litigating both the substantive
arguments about love and the procedural methods of using scientific proof:
some of the litigation strategies to date have been built on a
heteronormative ideal. This is not to say that the tensions are between
theorists and litigators, who very often are, quite literally, on the same page
on amicus briefs.5 (Although, sometimes the trial and political strategizing
has been explicit about proceeding in stages and intentionally leaving parts
of the community behind, as with the Employment Non-Discrimination
Act.6) This is to say that the litigation strategies raise theoretical tensions.

4 Peter H. Huang and Christopher J. Anderson have also complimented
Nussbaum's development of the roles of shame and disgust in law but urged attention to
positive emotions. See Peter H. Huang & Christopher J. Anderson, A Psychology of
Emotional Legal Decision Making: Revulsion and Saving Face in Legal Theory and
Practice, 90 MINN. L. REV. 1045, 1048 (2006).

5 Brief of the National Lesbian and Gay Law Association et al. as Amici Curiae
Supporting Petitioners, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102), 2003 WL
152348 (Chai Feldblum); Brief and Appendix for Ian Ayres, Jon Bauer, Anne Dailey,
Martha F. Davis, Susan Estrich, Herma Hill Kay, Martha Minow & Susan R. Schmeiser as
Amici Curiae, Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. Jan. 11,
2007) (No. 17716), 2007 WL 4725442; Brief of Professors of History & Family Law as
Amici Curiae in Support of Plaintiffs-Respondents in Hernandez v. Robles (N.Y. Sup. Ct.,
July 28, 2005), reprinted in Suzanne B. Goldberg, A Historical Guide to the Future of
Marriage for Same-Sex Couples, 15 COLUM. J. GENDER & L. 249, 252 (2006). Litigation, of
course, has been accompanied by systematic pushes for gay-friendly grassroots
organizations, lobbying, and public education. Evan Wolfson, Crossing the Threshold:
Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Critique, 21
N.Y.U. REV. L. & Soc. CHANGE 567, 608 (1994-95).

6 See Cynthia Laird, Tense Meeting With HRC Over ENDA, BAY AREA REPORTER,

Jan. 10, 2008, available at http://www.ebar.com/news/article.php?sec-news&article=2589;
Transgender Inclusion May Spell Trouble for ENDA, Workplace Professor Blog,
http://lawprofessors.typepad.con/laborprof blog/2007/10/trangender-incl.htm (Oct. 3,
2007).

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2010] Theorizing and Litigating the Rights of Sexual Minorities 23

Lawyers on the ground have to be concerned with pragmatic strategies,
based on what works with courts. They need to consider the tactical
arguments that might appeal to middle America, so they carefully cull
model plaintiffs, issue planned media blitzes, and try to control the timing
and geography of test cases.7 What seems to be working, at least sometimes,
with courts is the "homo kinship" model or "like-straight" logic to argue for
parental rights or same-sex marriage. 8 The relational focus seems to be a
necessary strategy to win, in the words of Carlos Ball, the "hearts and
minds of straight Americans."9 But this strategy may only reward the "good
gays"-the ones who fit the Leave It to Beaver family model of Ward,
John, Wally, and the Beave.

Part II of this Article addresses the ways portrayals of love and
relationships have led to some LGBT litigation successes.' 0 It explores the
tensions in building rights arguments on a foundation of heteronormativity.
The suggestion that this Article makes here is to broaden the storytelling.
Even if an equal protection challenge depends on substantial similarity to a
benefitted group, and even if lawyers want to architect the best possible
case, there may be ways to weave in compelling stories of more members of
the community than simply the "white picket fence" plaintiffs." Here the
experiences of prior feminist legal theorizing and litigating can serve as
models. Sex equality litigators deftly brought private lives into the public
sphere and created understanding of the different circumstances of women
from all walks of life as part of the human condition. 12

Part III of this Article explores the role of science in litigating
LGBT rights. Sexual minorities have had an awkward relationship with

7 Combined Statement of ACLU, GLAAD, Equality Federation, Lambda Legal, &
NCLR, Make Change, Not Lawsuits, http://www.thetaskforceactionfund.org/take action/
guides/changenot lawsuits.pdf (last visited Feb. 1, 2010) (urging strategic lawsuits that do
not take cases up to hostile courts).

8 See Katherine Franke, The Politics of Same Sex Marriage Politics, 15 COLUM. J.

GENDER & L. 236, 240 (2006); Marc Spindelman, Homosexuality's Horizon, 54 EMORY L.J.
1361, 1365 (2005).

9 Carlos A. Ball, The Backlash Thesis and Same-Sex Marriage: Learning from
Brown v. Board of Education and Its Aftermath, 14 WM. & MARY BILL RTS. J. 1493, 1537
(2006).

10 See discussion infra Part II.A.

1 See infra text accompanying notes 51-60.

12 See infra text accompanying notes 86-90.



Columbia Journal of Gender and Law

science because of the medicalization of homosexuality and the continued
conception of transsexualism as pathology.' 3 In recent years, gay rights
litigators have begun to use science and social science evidence to build
their cases for equal rights. As one example, advocates have argued
successfully for parental rights by drawing on a growing body of evidence
that gay fathers and lesbian mothers provide equally healthy and supportive
environments for their children as do straight parents. 14 Another more
complicated example concerns arguments regarding the immutability of
sexual orientation.' 5 Some litigators have argued, and some courts have
agreed, that because sexual orientation is essentially immutable, claims of
gays and lesbians are deserving of heightened scrutiny. The immutability
argument raises a number of theoretical difficulties, such as reinforcing
perceptions of sexual minorities as abnormal or deviant, and it excludes
some members of the community, such as bisexuals and the transgendered,
from legal protection.

To avoid both the exclusion of certain groups and the problem of
courts selectively applying scientific studies to support previously
determined conclusions, this Article argues for a particular approach to the
idea of scientific proof. LGBT rights litigators should push for courts to
adopt a deeper and more thorough approach to scientific inquiry that insists
on evaluating cumulative, comprehensive, and converging evidence. Here
again gender justice advocates offer a model for the methodology of
scientific proof. Feminists who litigated the early constitutional cases saw
that their challenge was to depict the constructed nature of gender so that
virulent forms of discrimination were understood as something other than
the product of innate sex differences. They drew on evidence from science,
history, literature, psychology, sociolinguistics, cultural anthropology, and
sociology to offer a dynamic account of subordination that began to
resonate with courts. Similarly, LGBT theorists are beginning to use a more
multifaceted approach to briefing questions calling for scientific
understanding. For example, recent briefs regarding the immutability of
sexual orientation offer a more complex and nuanced view of sexual
identity as having some biological influences but also being the product of

'3 See infra text accompanying notes 125-34.

14 See infra text accompanying notes 135-52.

15 See infra text accompanying notes 153-91.

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2010] Theorizing and Litigating the Rights of Sexual Minorities 25

constructed differences. This view of "constructive immutability"'1 6 is
beginning to be persuasive to courts.17

The arguments that have been most workable for the LGBT civil
rights movement have been those premised on sameness, but those
arguments do not work where courts perceive differences.1 8 Perhaps
litigators can move beyond the heteronormative ideal by emphasizing, as
Martha Nussbaum's works urge, the common features of personhood: those
qualities of dignity and respect for the common humanity of all people. This
emphasis would be on a different kind of sameness-shared humanity' 9-

and more robust versions of both love and science can help with these
litigation efforts.

II. LITIGATING LOVE

A. Constitutional Protection for Love and Relationships

Some of the most significant advances for sexual minorities have
rested foundationally on love. These legal decisions over the past thirty or
forty years have involved, for the most part, a recognition not of erotic love
but of what Professor Nussbaum might call "agap6," "a respect for
relationships, for human social connections. 2 °

A number of decisions that are not about lesbian and gay rights
have fundamentally shaped the Court's conception of families and love.
The aptly named Loving case, of course, is the most obvious. In striking the
antimiscegenation statute, the Court in Loving v. Virginia observed that the
statute deprived the Lovings of due process and also that "[t]he freedom to
marry has long been recognized as one of the vital personal rights essential

16 See generally Samuel A. Marcosson, Constructive Immutability, 3 U. PA. J.

CONST. L. 646 (2001) (proposing the concept of "constructive immutability" and its
application to challenging discrimination).

17 See infra discussion in text at notes 185-91.

18 See PATRICIA A. CAIN, RAINBOW RIGHTS: THE ROLE OF LAWYERS AND COURTS IN

THE LESBIAN AND GAY CIVIL RIGHTS MOVEMENT 277 (2000).

19 See Nancy Levit, A Different Kind of Sameness: Beyond Formal Equality and

Antisubordination Principles in Gay Legal Theory and Constitutional Doctrine, 61 OHIO ST.

L.J. 867 (2000).

20 See NUSSBAUM, SEX AND SOCIAL JUSTICE, supra note 2, at 262. Certainly, getting

to love requires overcoming hate, which is so often founded on disgust and shame.



Columbia Journal of Gender and Law

to the orderly pursuit of happiness by free men.' We tend to forget that the
pursuit of happiness is one of the three most important rights of a free
people.

There is a great moment in the oral argument in that case by the
Lovings' attorney who said to the Supreme Court that Mr. Loving, a
bricklayer, had managed to express the real essence of the issue better than
any eloquent, expert lawyer could do in describing what the concepts of
fundamental fairness and ordered liberty mean under the Due Process
Clause. Richard Loving told his lawyer: "Tell the Court I love my wife ...
and it is just unfair that I can't live with her in Virginia." 22

In Moore v. City of East Cleveland,23 the Supreme Court struck
down a housing ordinance that would have prevented grandchildren from
living with their grandmother as a "single family," thus recognizing that
people get to define their own families. 24 The happiness literature that is
emerging in positive psychology shows the central place of families in
people's happiness and that defining one's own family is crucial to that
human flourishing.

2 5

Along the way, of course, there were some Supreme Court cases
that may have gotten it flat wrong on love-Michael H. v. Gerald D.,26 for
example. In Michael H., the mother conceived a child by Michael while she
was married to Gerald, and Michael later established a parental relationship
with the child. Michael challenged the California law that presumed that the
husband of a married woman was the father of any children born during the

2' 388 U.S. 1, 12 (1967).

22 Loving v. Virginia, The Oyez Project, http://www.oyez.org/cases/1960-
1969/1966/1966395/argument/ at 31:20-32:03 (last visited Feb. 1, 2010).

23 431 U.S. 494, 506 (1977).

24 Moore is also a fascinating example of internal tensions in minority rights-
since the ordinance in question was advocated by middle-class blacks who sought to exclude
lower-class blacks from their neighborhood. See David Dante Troutt, Ghettoes Made Easy:
The Metamarket/Antimarket Dichotomy and the Legal Challenges of Inner-City Economic
Development, 35 HARV. C.R.-C.L. L. REV. 427, 443 (2000). 1 am indebted to Barbara
Glesner Fines for this point.

25 See, e.g., Richard Corliss, Is There a Formula for Joy?, TIME, Jan. 20, 2003, at
72, 74 (citing Martin Seligman for the proposition that a happy family arrangement is one of
the primary factors in human happiness).

26 491 U.S. 110 (1989).

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2010] Theorizing and Litigating the Rights of Sexual Minorities 27

marriage. The Supreme Court held that the marital presumption of paternity
trumped the biological father's claim to visitation rights.27

Even though the Supreme Court two decades ago could not see
beyond the nuclear family model, at about this same time, lower courts
began to recognize more inclusive definitions of family. Twenty years ago,
the New York Court of Appeals in Braschi v. Stahl Associates Co. held that
under the state's rent-control succession law, the life partner of a deceased
tenant was a "family member., 28 The Braschi court concluded that the legal
construction of family should not be "rigidly restricted to those people who
have formalized their relationship by obtaining, for instance, a marriage
certificate or an adoption order., 2 9 Citing a number of decisions in which
courts officially acknowledged nontraditional families (such as an orphan
who, although not formally adopted, lived in a family home for three
decades and two men who had a father-son relationship for twenty-five
years), the Braschi court looked at the "interwoven social lives,"
commitments and expectations, "dedication, caring, and self-sacrifice" of
the partners.30 In short, the court valued the families people chose for
themselves.

This more expansive understanding of family relationships began to
surface in parenting rights cases. Until about fifteen years ago, almost all
courts addressing parenthood claims of nonbiological, nonadoptive parents
denied them. 3' Now about half the states, either by statute or more often by
judicial decision, permit them and extend the rights to same-sex couples. 32

27 Part of the explanation for the result in Michael H. might have been that the

biological father's claim was based on "bad love"-an adulterous relationship that produced
the child. See id. at 118-19. The outcome might also be explained by the difference between
the facts at the time the case was brought, when Michael had a close relationship with
Victoria, and the facts five years later at the time of the Supreme Court decision, when
Victoria had moved to New York with Carole and Gerald and involvement with Michael
might have disrupted an ongoing family. See June Carbone & Naomi Cahn, Which Ties
Bind? Redefining the Parent-Child Relationship in an Age of Genetic Uncertainty, II WM.
& MARY BILL RTS. J. 1011, 1045 (2003).

28 543 N.E.2d 49, 53-55 (N.Y. 1989).

29 1d. at53.

30 Id. at 54-55. The court identified the functional characteristics that exemplify

family relationships: "the exclusivity and longevity of the relationship, the level of emotional
and financial commitment, the manner in which the parties have conducted their everyday
lives and held themselves out to society, and the reliance placed upon one another for daily
family services." Id. at 55.

31 See Kimberly Richman, Lovers, Legal Strangers, and Parents: Negotiating

Parental and Sexual Identity in Family Law, 36 LAW & Soc'Y REV. 285, 296 (2002);



28 Columbia Journal of Gender and Law [Vol. 19:1

What changed were a number of factors. Recognition of joint
parenting was the essential precondition for the shift to recognizing more
than one parental figure of any kind. Some developments regarding
heterosexual parents, such as courts' recognition that two parents could
share custody without causing confusion, and courts' willingness to
recognize functional relationships and unmarried boyfriends as parents,
carried over to gay parents. Academic work, such as Nancy Polikoff's
article, This Child Has Two Mothers, influenced decisions in Wisconsin,
which set a precedent for other states.33 Paralleling these developments was
the recognition of psychological parenthood in states like New Jersey.3

These advances operated in tandem: as the married family broke down and
courts recognized other arrangements, they also become more willing to
recognize gays and lesbians as parents. 35

Courts are increasingly starting to recognize same-sex second
parent adoption rights and support obligations, as well as visitation rights to
former same-sex partners who have become de facto parents.36 That
recognition of multiparent families is based on acknowledgement of the

Elizabeth Zuckerman, Comment, Second Parent Adoption for Lesbian-Parented Families:

Legal Recognition of the Other Mother, 19 U.C. DAVis L. REV. 729, 731 (1986).

32 See National Gay and Lesbian Task Force, Second Parent Adoption in the U.S.,

http://thetaskforce.org/reports-and-research/secondparent adoption laws (last visited Feb.
1, 2010); Rhonda Wasserman, Are You Still My Mother?: Interstate Recognition of Adoption
by Gays and Lesbians, 58 AM. U. L. REv. 1, 11 (2008).

33 In re Custody of H.S.H.-K, 533 N.W.2d 419, 437 (Wis. 1995) (quoting Nancy
D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs
of Children in Lesbian-Mother and Other Nontraditional Families, 78 GEO. L.J. 459, 464
(1990)).

34 See In re Adoption of Child by J.M.G., 632 A.2d 550 (N.J. Super. Ct. Ch. Div.
1993) (approving a second parent adoption by a lesbian of her partner's biological child to
whom she was a psychological co-equal parent).

35 I am indebted to June Carbone for the ideas on the paradigm shift contained in
this paragraph.

36 See, e.g., Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005); E.N.O. v.

L.M.M., 711 N.E.2d 886 (Mass. 1999); Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993);
T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001). See also Nat'l Gay and Lesbian Task Force,
Second-Parent Adoption in the U.S., May 2007, http://www.thetaskforce.org/downloads/
reports/issue maps/2ndparent adoption_5_07_color.pdf (last visited Feb. 1, 2010) (listing
twenty-four states that have approved second parent adoptions).



2010] Theorizing and Litigating the Rights of Sexual Minorities 29

nurturing and love in those families rather than biological ties.37 Maybe the
expression of love in this context is not so threatening. Also, particularly
with cases involving children, at some point the human consequences of
law are so apparent that law has to recognize relationships. What was
emerging from this constellation of cases having to do with the definitions
of families and parenthood, and homes where families lived, was a fuller
picture of humanness, of personhood.

The real shifting of tectonic plates came in constitutional law. The
transformation from Bowers v. Hardwick38 to Lawrence v. Texas 39 rested on
a variety of social influences-such as increased visibility40  and
philosophical principles-such as the offensiveness of threatened criminal
punishment for violation of anachronistic and underenforced sodomy laws
and the idea of noninterference with nonharmful consensual sexual
activity.4 1 Also foundational was the difference between the Court's
emphasis in Bowers on sex and, seventeen years later in Lawrence, the
Court's emphasis on love, affection, and relationships. The Bowers Court
was preoccupied with the ancient and contemporary prohibitions against
sodomy, framing the question as whether there was "a fundamental right to
engage in homosexual sodomy," and tallying the number of state statutes
that outlawed this kind of "homosexual conduct. ' '42 Justice Burger's
concurrence added the incendiary exclamation point that "Blackstone
described 'the infamous crime against nature' as an offense of deeper
malignity than rape." 43 The conclusion of the Bowers Court came as no
surprise: "Against this background, to claim that a right to engage in such

37 See, e.g., E.N.O., 711 N.E.2d at 892 (elaborating on the financial, economic, and
emotional entanglement of the plaintiff and child to conclude that "[t]he plaintiff is the
child's de facto parent"); In re Adoption of Child by I.M.G., 632 A.2d 551 (noting that the
child "is definitively attached to the plaintiff... [She] moves back and forth between her
two mothers with relative ease.").

38 478 U.S. 186 (1986).

39 539 U.S. 588 (2003).

40 See infra text accompanying notes 55-60, 110-11.

41 See, e.g., Cass R. Sunstein, What Did Lawrence Hold? OfAutonomy, Desuetude,

Sexuality, and Marriage, 2003 SuP. CT. REV. 27 (2003).
421d. at 191, 195.

43 Id. at 197 (Burger, J., concurring).



Columbia Journal of Gender and Law

conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit
in the concept of ordered liberty' is, at best, facetious." 4

For the majority in Lawrence, it was not the right to engage in
particular sexual acts that was fundamental, but "the relationships and self-
governing commitments out of which those acts arise-the network of
human connection over time that makes genuine freedom possible. '" 5

Justice Kennedy's opinion for the Court emphasized the "liberty of the
person both in its spatial and in its more transcendent dimensions. '"" It set
boundaries on the state's intrusion into "relationships" and emphasized that
"[w]hen sexuality finds overt expression in intimate conduct with another
person, the conduct can be but one element in a personal bond that is more
enduring. 'A7 The Lawrence dissenters focused, in horror, on the forms of
sexual activity that the majority opinion might countenance: "bigamy,
same-sex marriage, adult incest, prostitution, masturbation, adultery,
fornication, bestiality, and obscenity.'" 8

Lawrence is much more than a decision about sexual freedom.4 9

The decision moves away from the libertarian privacy component-that
there should be some realms free from government intrusion. Instead,
Lawrence has a centrally communitarian thrust. If people are engaged in
behaviors the state wants to promote, it should affirmatively promote them.
The move that Justice Kennedy makes in Lawrence is not just that people
are free to pursue certain types of sexual relationships that they want, it is a
recognition that those relationships are important and something the state
should support. Lawrence is monumental in its recognition that gays and
lesbians have "dignity as free persons. 5 °

4 Id. at 194 (emphasis added).

45 Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare
Not Speak Its Name, 117 HARV. L. REV. 1893, 1955 (2004).

46 539 U.S. at 562.

4 71 Id. at 567.

48 539 U.S. at 590 (Scalia, J., dissenting).

49 See, e.g., Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas,
104 COLUM. L. REV. 1399, 1400 (2004).

" 539 U.S. at 567. Of course, in dissent, Justice Scalia accuses the majority of

"sign[ing] on to the so-called homosexual agenda," which he describes as "the agenda
promoted by some homosexual activists directed at eliminating the moral opprobrium that
has traditionally attached to homosexual conduct"-in other words, a search for dignity and
respect. Id. at 601 (Scalia, J., dissenting).

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2010] Theorizing and Litigating the Rights of Sexual Minorities 31

B. Domesticated Sex

The concern that Katherine Franke and others have raised with
respect to the dignity ideal in Lawrence is that it condones only
domesticated and respectable sex, inside the home.5' I think Professor
Franke is quite right that an emphasis on the ideal creates negatives for
those people and relationships that are outside the family values box. The
worry is that people will only be able to obtain rights for the
heteronormative type of "good," relationship-based sexuality.52 This has
actually been the litigation strategy in most of the recent same-sex marriage
cases.

The legal strategies in many of the early, and unsuccessful, same-
sex marriage cases in the 1970s were "bottom-up" in structure, where the
parties to the lawsuit hired their own lawyers and forged ahead to make
whatever arguments they thought persuasive. 53 The "top-down" litigation
approach, in which national civil rights groups such as Gay and Lesbian
Advocates and Defenders strategically selected states and carefully chose
plaintiffs, proved more effective in Baker v. Vermont and Goodridge v.

51 See, e.g., Libby Adler, Dignity and Degradation: Transnational Lessons from the
Constitutional Protection of Sex I (Berkeley Electronic Press Legal Working Paper Series,
Paper No. 1873, 2006), available at http:// law.bepress.com/expresso/eps/1873 ("[D]ignity
poses unique legal hazards to reformist efforts to gain constitutional protection for a wide
array of sexual practices."); Franke, supra note 49, at 1409 (maintaining that pro-gay
litigators have "trade[d] sexuality for domesticity" and respectability). But see Francisco
Valdes, Anomalies, Warts and All: Four Score of Liberty, Privacy, and Equality, 65 OHIO
ST. L.J. 1341, 1397-98 (2004) (Lawrence mandates the law's protection of Queer dignity.
More remarkably and importantly, Lawrence does so on facts that, on the record, do not
establish a "committed" or conventionally respectable relationship to have existed. Thus,
despite rhetoric to the contrary in the opinion, a considered reading of the text and the facts
strongly indicate that Lawrence does more than simply validate same-sex relationships that
mimic traditional "marriages." Instead, Lawrence recognizes, first, the central role that
sexual desires and intimacies play in the development of individual personalities and,
second, the importance of sexual experimentation and choice in individuals' efforts to realize
and secure their sense of self.").

52 See MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE

ETHICS OF QUEER LIFE (1999).

53 Edward Stein, The Story of Goodridge v. Department of Public Health: The
Bumpy Road to Marriage for Same-Sex Couples, in FAMILY LAW STORIES (Carol Sanger ed.,
2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract id=938531, at 3-4
(citing Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Baker v. Nelson, 191 N.W.2d 185
(Minn. 1971)).



Columbia Journal of Gender and Law

Department of Public Health.54 Lambda Legal engaged in a similar strategy
of deftly architecting the New Jersey case of Lewis v. Harris by choosing
"'conservative, white-picket-fence kind of plaintiffs,' the kind of people
that average New Jerseyans could relate to." 55

The eight named plaintiff couples in Kerrigan v. Commissioner of
Public Health56 were people who had been in committed relationships for

54 Stein, supra note 53, at 12 ("Prospective plaintiffs were asked 'how did they
meet and commit, and how long had they been together?' . . . GLAD wanted to select
plaintiffs whose stories would make vivid the harm of not being allowed to marry.").

55 Andrew Bruck, Equality in the Garden State: Litigation and Social Activism in
the Struggle for Marriage Equality, at 426, http://www.hlpronline.com/Bruck HLPR.pdf
(2008). See e.g., Goodridge v. Dep't of Public Health, 798 N.E.2d 941, 949 (Mass. 2003):

The plaintiffs are fourteen individuals from five Massachusetts counties.
As of April 11, 2001, the date they filed their complaint, the plaintiffs
Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had
been in a committed relationship for thirty years; the plaintiffs Maureen
Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had
been in a committed relationship for twenty years and lived with their
twelve year old daughter; the plaintiffs Hillary Goodridge, forty-four
years old, and Julie Goodridge, forty-three years old, had been in a
committed relationship for thirteen years and lived with their five year
old daughter; the plaintiffs Gary Chalmers, thirty-five years old, and
Richard Linnell, thirty-seven years old, had been in a committed
relationship for thirteen years and lived with their eight year old daughter
and Richard's mother; the plaintiffs Heidi Norton, thirty-six years old,
and Gina Smith, thirty-six years old, had been in a committed
relationship for eleven years and lived with their two sons, ages five
years and one year; the plaintiffs Michael Horgan, forty-one years old,
and Edward Balmelli, forty-one years old, had been in a committed
relationship for seven years; and the plaintiffs David Wilson, fifty-seven
years old, and Robert Compton, fifty-one years old, had been in a
committed relationship for four years and had cared for David's mother
in their home after a serious illness until she died.

See also Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006), noting:

Plaintiffs are seven same-sex couples who claim that New Jersey's laws,
which restrict civil marriage to the union of a man and a woman, violate
the liberty and equal protection guarantees of the New Jersey
Constitution. Each plaintiff has been in a "permanent committed
relationship" for more than ten years and each seeks to marry his or her
partner and to enjoy the legal, financial, and social benefits that are
afforded by marriage.

Id.

56 957 A.2d 407 (Conn. 2008).

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2010] Theorizing and Litigating the Rights of Sexual Minorities 33

between thirteen and thirty-one years; six of the families had children, and
several of them had health issues and were concerned about access to health
benefits as well as the ability to make medical decisions for each other.57

Similarly, in the California In re Marriage Cases,58 the named plaintiffs,
although representing a range of racial, ethnic, and occupational
backgrounds, were couples in long-term relationships. The amicus brief of
the Human Rights Campaign et al., in Lawrence v. Texas, argued that
"[g]ay men and lesbians tend to live in committed relationships. '59

In sum, the successful same-sex marriage cases were carefully
orchestrated to select plaintiffs in long term, committed, marriage-like
relationships, whose personal narratives appealed to middle America. As
Professor Franke says, they "pos[e] model homo families--our perfect
plaintiffs-before the media .. .with what feels like the deployment of
children as props that attest to our normalcy, a repudiation of our
perversion.

6°

Is this just a theoretical dilemma, the kind of thing about which
only academics worry? A number of cases indicate this is not just an
academic concern. One example is custody and visitation cases in which
courts disapprove of any displays of intimacy or affection between a gay or
lesbian parent and a new partner.61 Although a parent's sexual orientation is

57 Gay & Lesbian Advocates & Defenders, Plaintiff Profiles,
http://www.gladtesting.org/work/cases/kerrigan-mock-v-connecticut-dept-of-public-health/
(last visited Feb. 1, 2010).

58 183 P.3d 384 (2008). The court explained:

The named same-sex couples who are parties to these actions embody a
diverse group of individuals who range from 30 years of age to more
than 80 years of age, who come from various racial and ethnic
backgrounds, and who are employed in (or have retired from) a wide
variety of occupations, including pharmacist, military serviceman,
teacher, hospital administrator, and transportation manager. Many of the
couples have been together for well over a decade and one couple,
Phyllis Lyon and Del Martin, who are in their eighties, have resided
together as a couple for more than 50 years. Many of the couples are
raising children together.

Id. at 403.

59 Brief for Human Rights Campaign et al., as Amici Curiae Supporting
Petitioners, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102), 2003 WL 152347 at *17.

60 Franke, supra note 8, at 239.

61 See, e.g., Weigand v. Houghton, 730 So.2d 581, 584 (Miss. 1999) ("According

to David, they regularly engage in homosexual activities which include both oral and anal



34 Columbia Journal of Gender and Law [Vol. 19:1

no longer an automatic factor in the award of custody or visitation, many
courts still allow parties to try to show that a parent's homosexual behavior
is somehow harmful to the child.62 Another example is foster parent or
adoption cases in which a single lesbian or gay man who is not in a
committed, monogamous relationship wants to be a parent. 63 Professor
Carlos Ball has shown that when states restrict adoptions by gays and
lesbians, it is the children who are left without families that are harmed.64 In
short, heteronormativity has real world consequences. This raises the
question of what litigators can do to win cases while including all members
of the LGBT community.

C. Reclaiming Sexuality Without Losing Dignity

"Equal respect for conscience means a vigilant refusal to
countenance the participation of government in any creation of
in-groups and out-groups, especially in the realm of religion." 65

intercourse."); Chicoine v. Chicoine, 479 N.W.2d 891, 892 94 (S.D. 1992) (noting that the
mother had "a series of admitted lesbian affairs," the first of which was an "open and
notorious affair"; that a child had walked in on the mother and her lover "in an intimate
position in bed"; that the children were sometimes allowed to sleep in bed with the mother
and her lover; and that the mother "and her lover were affectionate toward each other in front
of the children, caressing, kissing, and saying, 'I love you"'); Bottoms v. Bottoms, 457
S.E.2d 102, 106-07 (Va. 1995) (awarding custody of a child to the grandmother over the
mother's objections in part because the mother's lesbian relationship involved felonious and
immoral conduct, including "hugging and kissing, patting 'on the bottom,' sleeping in the
same bed, 'fondling,' and 'oral sex"').

62 See John A. Robertson, Gay and Lesbian Access to Assisted Reproductive

Technology, 55 CASE W. RES. L. REv. 323, 334-53 (2004).

63 In Arkansas, voters in the 2008 election passed a statewide initiative banning

unmarried couples from adopting or becoming foster parents-but the purpose behind the
law was to prevent gay individuals or couples from adopting. NPR Morning Edition: Hot-
Button Issues on State Ballots (Radio broadcast Nov. 5, 2008), available at 2008 WLNR
21176652. Curiously, Mississippi bans adoption by gay couples, but not by single people
who are gay. Fla. Gay Adoption Ban Dealt Legal Blow, CBS NEWS, Nov. 25, 2008,
http://www.cbsnews.com/stories/2008/11/25/national/main4632388.shtml.

64 Carlos A. Ball, The Immorality of Statutory Restrictions on Adoptions by

Lesbians and Gay Men, 38 Loy. U. CHI. L.J. 379 (2007).

65 MARTHA C. NUSSBAUM, FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION

AND CONSTITUTIONAL LAW 39 (2010) [hereinafter NUSSBAUM, FROM DISGUST TO

HUMANITY].



2010] Theorizing and Litigating the Rights of Sexual Minorities 35

In what ways can academics and litigators encourage the fight for
same-sex marriage rights but also broaden courts' visions of deserving
sexual minorities who do not fit the heteronormative model? Here Professor
Nussbaum is superbly helpful. Her new book From Disgust to Humanity:
Sexual Orientation and Constitutional Law begins with the premise that the
founding documents of America promise equality and imply equal respect
for human dignity. 66 She draws an analogy between respect for differences
in sexual orientation and respect for different religious convictions in
colonial America.

Ideas of religious liberty and tolerance in colonial America began
with intermingling, which was followed by understanding-understanding
that people of differing religious convictions could still reach consensus on
moral values "such as fairness, honesty, and impartiality, without
necessarily agreeing on theological first principles. 67

We should not delude ourselves into thinking, then, that the
policies of religious respect and fairness that gradually came to
dominate in the colonies, shaping our Constitution, were inspired
by respect for differing religious beliefs and practices. Rather,
they were inspired by a more basic underlying idea of respectfor
persons, for our fellow citizens as bearers of human dignity and
conscience. Even when we believe others are going astray, the
faculty of conscience in them deserves respect from our laws and
institutions. Because human beings are of equal worth,
conscience is deserving of equal respect. 68

Professor Nussbaum then makes the philosophical case for the idea
that sexuality, sexual satisfaction, and sexual happiness are integral parts of
human dignity. She circles back to the importance of sex to individuals.
This is a different argument than the libertarian vision that a state should
not concern itself with what consenting adults do in the privacy of their
bedroom. It is recognition that the bundle of love, desire, and erotic acts are
all part of the lived experiences of humans and are deserving of state
protection; it is a "re-integration" of sexual intimacy and dignity. 69 As she
explains:

66 See generally NUSSBAUM, FROM DISGUST TO HUMANITY, supra note 65.

67 Id. at 36-37.

61 Id. at 38-39.

69 See Paris R. Baldacci, Lawrence and Garner: The Love (Or at Least Sexual

Attraction) That Finally Dared Speak Its Name, 10 CARDOZO WOMEN'S L.J. 289, 294 n. 18



Columbia Journal of Gender and Law

Very few Americans today think that sexual happiness is a trivial
matter. For many if not most people, it is a central part of one's
search for the meaning of life. . . . [S]ex is . . . intimately
personal, connected to a sense of life's ultimate significance, and
utterly non-trivial.... We understand that it goes to the heart of
people's self-definition, their search for identity and self-
expression.

70

The recognition of equal respect for the sexuality of others is a
theme that is only beginning to percolate successfully in LGBT rights cases.
In Lawrence, the Court evinces a partial understanding that it is protecting
gay and lesbian consensual sexual conduct.71 The perhaps not so small
irony is that the Lawrence Court stressed relational interests regarding a set
of facts in which John Lawrence and Tyron Garner may not have had a
longstanding relationship-but the Court seemed intent on describing their
sexual intimacy as part of a stronger relational bond, rather than
acknowledging their choice of sexual expression as a dignity-claiming
activity. 72 The California Supreme Court, in In re Marriage Cases, rejected
the "sophistic" argument that the statute restricting marriage to opposite sex
couples did not violate the rights of gays and lesbians because they could

(2004) ("Lawrence's reintegration re-eroticizes gay and lesbian life and calls it good,
something to be respected and to be accorded dignity.").

70 NUSSBAUM, FROM DISGUST TO HUMANITY, supra note 65, at 39.

71 But, interestingly, only in the middle of a paragraph about what it is not
protecting:

The present case does not involve minors. It does not involve persons
who might be injured or coerced or who are situated in relationships
where consent might not easily be refused. It does not involve public
conduct or prostitution. It does not involve whether the government must
give formal recognition to any relationship that homosexual persons seek
to enter. The case does involve two adults who, with full and mutual
consent from each other, engaged in sexual practices common to a
homosexual lifestyle. The petitioners are entitled to respect for their
private lives. The State cannot demean their existence or control their
destiny by making their private sexual conduct a crime.

Lawrence v. Texas, 539 U.S. 558, 578 (2003) (emphasis added).

72 See, e.g., Dale Carpenter, The Unknown Past of Lawrence v. Texas, 102 MICH.

L. REv. 1464, 1477, 1478 (2004) (describing John Lawrence and Tyron Garner not as model
or "professional civil rights people"-both had prior arrest records and they were probably
"not in a long-term, committed relationship when they were arrested").

[Vol. 19:1



2010] Theorizing and Litigating the Rights of Sexual Minorities 37

still marry an opposite sex partner.73 "[M]aking such a choice," said the
court, "would require the negation of the person's sexual orientation." 74

The court went on to acknowledge the value of sexual orientation to
personhood by quoting from amicus briefs filed by the American
Psychological Association and the American Psychiatric Association:

[S]exual orientation is integrally linked to the intimate personal
relationships that human beings form with others to meet their
deeply felt needs for love, attachment, and intimacy. In addition
to sexual behavior, these bonds encompass nonsexual physical
affection between partners, shared goals and values, mutual
support, and ongoing commitment. Consequently, sexual
orientation is not merely a personal characteristic that can be
defined in isolation. Rather, one's sexual orientation defines the
universe of persons with whom one is likely to find the satisfying
and fulfilling relationships that, for many individuals, comprise
an essential component of personal identity.75

A few other cases have also recognized the importance of sexual
identity and sexual interactions to the individual.76 These decisions are
promising but seem to be atypical. The lurking tension is that some of the
litigation successes have been based on recognition of LGBT relational
interests-while obscuring the sexuality of the parties. As Pat Cain says,
"there is a certain degree of absurdity to making legal arguments in favor of
gay and lesbian rights that ignore sex." 77 The question, then, is whether
LGBT litigators can architect winning cases while presenting a fuller

73 In re Marriage Cases, 183 P.3d 384, 441 (Cal. 2008). But see Hernandez v.
Robles, 855 N.E. 2d 1, 10 (N.Y. 2006) (holding that the marriage restriction "does not put
men and women in different classes, and give one class a benefit not given to the other");
Andersen v. King County, 138 P.3d 963, 988 (Wash. 2006) ("Men and women are treated
identically under DOMA; neither may marry a person of the same sex.").

74 In re Marriage Cases, 183 P.3d at 441.

71 Id. at 939 n.59.

76 See, e.g., Hemandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000)

("[s]exual orientation and sexual identity ... are so fundamental to one's identity that a
person should not be required to abandon them"). See also Egan v. Canada, [1995] 2 S.C.R.
513, 528 (Can.) ("whether or not sexual orientation is based on biological or physiological
factors, which may be a matter of some controversy, it is a deeply personal characteristic that
is either unchangeable or changeable only at unacceptable personal costs.").

77 See, e.g., Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal
History, 79 VA. L. REV. 1551, 1641 (1993).



38 Columbia Journal of Gender and Law [Vol. 19:1

picture of sexuality as deserving of dignity and while not disowning
members of the community. 78

D. Storytelling-Telling Stories of the Whole Community

"In many ways, overcoming invisibility is the first step in
successfully demanding basic civil rights."79

A number of people at this symposium have argued for the value of
narratives to create empathic understanding of the human condition,
especially for vulnerable minorities. 80 Stories can challenge traditional

78 See, e.g., Teresa M. Bruce, Note, Doing the Nasty: An Argument for Bringing

Same-Sex Erotic Conduct Back Into the Courtroom, 81 CORNELL L. REV. 1135, 1174 (1996),
explaining:

Present litigation strategies respond to stereotypes of homosexuals as
oversexed sodomites by dismissing same-sex erotic conduct as
insignificant to homosexual identity. This tactic, in turn, chills speech
about sexuality within the gay community itself. For example, a
professor of political science, who recently appeared as a witness in a
challenge to an anti-gay initiative, testified that "those who organized the
'March on Washington' did not represent the mainstream homosexual
population." He apparently feared that including leather boys and drag
queens within the larger gay community would focus unwanted attention
on same-sex erotic conduct.

Id.

79 Ball, supra note 9, at 1534.

80 See, e.g., Robert L. Hayman, Jr. & Nancy Levit, The Tales of White Folk:
Doctrine, Narrative, and the Reconstruction of Racial Reality, 84 CAL. L. REV. 377, 399,
398-99 (1996) (noting that stories "are contextualized, highly particularized, and very
congregate. . . . [T]hey afford a special emphasis to personal details, to nuanced
characterizations, to the richness of human experience" and concluding that "storytelling
embodies a unique praxis: a method both for recognizing the plural truths of lived
experience, and for reimagining the possibilities of a more compassionate world"); Martha
C. Nussbaum, Loving v. Virginia and the Literary Imagination, 17 QLR 337, 339, 353
(1997) (arguing that "judges need to pay attention to narratives of hierarchy that convey the
human meaning of the situation in question, if they are to deliver judgments that are truly
principled and free from bias," and noting that "[c]ompassion connects us to shared
vulnerabilities and needs"); see also Mary Ann Case, Couples and Coupling in the Public
Sphere: A Comment on the Legal History of Litigating for Lesbian and Gay Rights, 79 VA.
L. REv. 1643, 1647-48 (1993) (observing that at this juncture, although the narratives in
LGBT litigation have focused on gay individuals and the gay community, stories of gay
couples are missing from the litigation history); Tracy E. Higgins, "By Reason of Their
Sex": Feminist Theory, Postmodernism, and Justice, 80 CORNELL L. REV. 1536 (1995)



2010] Theorizing and Litigating the Rights of Sexual Minorities 39

understandings; they can make visible the experiences of outsiders. They
can even develop in a reader the capacity to empathize with other people
whose experiences are dramatically different than the reader's own.81

Stories also speak in the way that humans understand. Research is
emerging in cognitive neuroscience that stories are the ways people best
learn information. Since the brain is structured to detect patterns, stories
work better than simply the conveyance of facts to "encourage . . . the
recognition of new patterns and relationships among objects and ideas." 82

Stories activate different areas of the neocortex than those stirred when the
brain is just processing arguments or separate fact statements.83 Stories are
also stored in memory as symbols-and studies demonstrate that while
people retain "only 20% of what they read, . . . they recall 80% of
symbols."

84

One of the things that work to decrease homophobia is increased
exposure. Numerous studies in social psychology as well as public opinion
data show that personally knowing people who are gay and lesbian reduces
prejudice.85 Hearing people's stories can provide a non-threatening,
empathetic reaction akin to, although once-removed from, personal
acquaintance.

(noting that accounts of gendered experiences are inevitably partial, contested, and
perspectival).

81 See ROBIN WEST, NARRATIVE AUTHORITY AND LAW 7 (1993).

82 DELORES D. LISTON, STORY-TELLING AND NARRATIVE: A NEUROPHILOSOPHICAL

PERSPECTIVE (1994). See also Elena Plante et al., Processing Narratives for Verbatim and
Gist Information by Adults with Language Learning Disabilities: A Functional
Neuroimaging Study, 21 LEARNING DISABILITIES RES. & PRAC. 61 (2006).

83 John Batt, Law, Science, and Narrative: Reflections on Brain Science,

Electronic Media, Story, and Law Learning, 40 J. LEGAL EDUC. 19, 25-26 (1990).

84 Michael Berman, A Few Words on Story-telling, HUMANIZING LANGUAGE

TEACHING MAG., May 2003, available at http://www.hltmag.co.uk/may03/pubs4.htm.

85 See generally Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and
Religion, 72 BROOK. L. REV. 61, 78-80 (2006). See also A.M. Bowne & M.J. Bourgeois,
Attitudes Toward Lesbian, Gay, and Bisexual College Students: The Contribution of
Pluralistic Ignorance, Dynamic Social Impact, and Contact Theories, 50 J. AM. COLL.
HEALTH 91 (2001); Gregory M. Herek & John P. Capitanio, "Some of My Best Friends":
Intergroup Contact, Concealable Stigma, and Heterosexuals' Attitudes Toward Gay Men
and Lesbians, 22 PERSONALITY & SOC. PSYCHOL. BULL. 412 (1996); Gregory M. Herek &
Erik K. Glunt, Interpersonal Contact and Heterosexuals' Attitudes Towards Gay Men:
Results from a National Survey, 30 J. SEX RES. 239 (1993).



Columbia Journal of Gender and Law

This is where some of the experiences with feminist litigation
strategies can serve as a model. Consider, as an example of this point, the
briefing technique of the National Abortion Rights Action League. NARAL
(Pro-Choice America) submits as an amicus brief in major Supreme Court
abortion cases what has come to be known as the "Voices Brief."86 This
brief was primarily a collection of stories of women from all walks of life
who had abortions both legally and illegally. These were teenagers, women
who were raped when they sought abortion services, women who were
prosecuted when they had illegal abortions, those who had abortions in
unsafe conditions when abortions were illegal, those who had abortions
after Roe v. Wade in safe, clean, and supportive environments, women who
had health problems that made childbirth dangerous, those who did not have
financial resources to raise children, some who had cancer while pregnant,
divorced professional women, married women with physically abusive
spouses, some who suffered failed birth control methods, women who were
pregnant as a result of rape (including a former nun raped by a priest), those
afflicted with severe illnesses that necessitated abortion to save their lives,
some who were addicted to drugs or alcohol, and some who carried fetuses
with genetic diseases such as Tay-Sachs.8 7 These were not paradigm
plaintiffs; they were Everywoman. The brief, directed at a Court composed
at the time of seven older men and two older women (none of whom,
presumably, had ever had an abortion), was intended to show that abortion
decisions are not made frivolously or easily and to illuminate the many
circumstances in which abortion is a justifiable choice.

The storytelling technique in the Voices Brief was based on the
idea that "moral convictions are changed experientially and empathically,
not through argument." 88 Although no member of the Court has ever cited
the Voices Brief, it may have encouraged some empathetic understanding.
For instance, when the Court struck the spousal notification law in Planned
Parenthood of Southeastern Pennsylvania v. Casey, the plurality recognized
some married women who were the victims of domestic violence might
have good reasons not to tell their spouses about their pregnancies. 89

86 Brief for Women Who Have Had Abortions & Friends, as Amici Curiae

Supporting Appellees, Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (No.
88-605), 1989 WL 1115239. See also Robin L. West, The Constitution of Reasons, 92 MICH.
L. REv. 1409, 1435-36 (1994).

87 Brief for Women Who Have Had Abortions & Friends as Amici Curiae,

Webster, 492 U.S. 490 (No. 88-605), 1989 WL 1115239.

88 West, supra note 86, at 1436.

89 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 888-93 (1992).

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2010] Theorizing and Litigating the Rights of Sexual Minorities 41

The Voices Brief is not the only example of telling many and varied
stories. When Professor Alice Kessler-Harris testified in the EEOC v. Sears,
Roebuck & Co. litigation, she looked at the experiences of several different
generations of women in both World Wars in various different jobs, and she
unpacked the idea of women "choosing" certain lines of work.90 Her
examination showed how choice was not a unitary concept: there are
choices under pressure, choices shaped by employer practices, choices by
people in subordinate positions, and choices within institutional constraints.

Telling counterstories is a way to challenge dominant narratives.
Alternate narratives "destroy[] .. .the bundle of presuppositions, received
wisdoms, and shared understandings against a background of which legal
and political discourse takes place." 91 Stories introduce the humans whose
rights are being litigated, and the personal narratives tell how it feels to

92experience domination or discrimination. We have seen numerous
examples of this in feminist and critical race litigation strategies. In the
domestic violence area, advocates learned how to overcome the stereotypes
embedded in both "survivor theory" and in the battered intimate partner
syndrome's construction of "learned helplessness" to address the lived
experiences of women who fight back.93 In sexual harassment cases, in the
face of legal rules that compel early reporting, stories may explain why
women endure harassment in silence. 94 Stories can convey what it feels like
to be the victim of racial profiling,95 or an immigrant who confronts the

90 EEOC v. Sears, Roebuck & Co., 628 F. Supp. 1264, 1314 n.62 (N.D. II1. 1984),

aff'd, 839 F.2d 302 (7th Cir. 1988).

91 Richard Delgado, Storytelling for Oppositionists and Others: A Plea for

Narrative, 87 MICH. L. REV. 2411, 2413 (1989).

92 See, e.g., Margaret E. Montoya, Celebrating Racialized Legal Narratives, in

CROSSROADS, DIRECTIONS AND A NEW CRITICAL RACE THEORY 243 (Jerome M. Culp, Angela
P. Harris & Francisco Valdes eds., 2002).

93 Leigh Goodmark, When Is a Battered Woman Not a Battered Woman? When
She Fights Back, 20 YALE J.L. & FEMINISM 75, 129 (2008) (offering as one example the
reasoning, "I hit back to keep him from beating me worse").

94 See Theresa M. Beiner, Using Evidence of Women's Stories in Sexual
Harassment Cases, 24 U. ARK. LITTLE ROCK L. REV. 117, 138-39 (2001) (explaining why
sexual harassment is underreported).

95 See Andrew E. Taslitz, Stories of Fourth Amendment Disrespect: From Elian to
the Internment, 70 FORDHAM L. REV. 2257, 2257-63, 2290 (2002).



42 Columbia Journal of Gender and Law [Vol. 19:1

96injustice of asylum law, or a college student subjected to racist hate
speech.97

Presenting the stories of a wider variety of sexual minorities may be
a promising litigation technique. The challenge is to talk about
nonparadigm cases and still find sympathetic plaintiffs. For example, when
a child who had lived with both her mom and her dad and then with her
grandmother who is a lesbian gave testimony before the Arkansas
Legislature, saying that the best situation for her was to live with her
grandmother; legislators found the child's perspective compelling. 98

As another example, when Diane Schroer, a decorated Army
veteran, was hired for a job with the Library of Congress as a terrorism
research analyst in 2004, her name was David Schroer. 99 A graduate of the
Army Command and General Staff College and the National War College,
she had served for twenty-five years in the U.S. Armed Forces and had held
the rank of Colonel. The Library of Congress revoked the job offer when
Schroer told the selecting official that she would be undergoing sex-

96 See, e.g., Stanley Dale Radtke, Defining a Core Zone of Protection in Asylum

Law: Refocusing the Analysis of Membership in a Particular Social Group to Utilize Both
the Social Visibility and Group Immutability Component Approaches, 10 J.L. & Soc.
CHALLENGES 22 (2008); John A. Russ IV, The Gap Between Asylum Ideals and Domestic
Reality: Evaluating Human Rights Conditions for Gay Americans by the United States' Own
Progressive Asylum Standards, 4 U.C. DAVIS J. INT'L L. & POL'Y 29 (1998).

97 See Richard Delgado, Campus Antiracism Rules, Constitutional Narratives in
Collision, 85 Nw. U. L. REV. 343, 349-57 (1991) (providing a description of racist incidents
on college campuses, including graffiti, slave auctions, handbills that declared "open hunting
season" on blacks, and a fraternity's creation of a fifteen-foot effigy of a "black man with a
bone through his nose").

98 John Lyon, Gay Foster Parenting Ban Dies in Committee, MORNING NEWS
(Arkansas), Mar. 27, 2007, available at http://www.nwaonline.net/articles/2007/03/28/
topics/assembly07/0328071rleggayban.txt. See also In re Adoption of John Doe (Fla. Cir. Ct.
Aug. 29, 2008), available at http://jurist.law.pitt.edu/pdf/flaadoption.pdf. In the context of
finding unconstitutional the Florida statute prohibiting gays and lesbians from adopting, the
court tells the story of petitioner who sought to adopt the child he had foster parented for five
years, the petitioner's partner, their family life, the child's schooling and special educational
needs, and discusses the lack of effect on the child of knowledge of the petitioner's sexual
orientation. "We used a 9-minute video with various spokespeople: adoptive parents, former
foster children, pediatricians, psychologists, physicians, CASA volunteers, social workers,
and clergy. The video is here: http://www.youtube.com/watch?v-iVg8Y49OmMM. We also
have DVD copies." E-mail from Laura Bellows, Arkansasfamiliesfirst.org (Nov. 14, 2008,
3:14 p.m.) (on file with author).

99 Schroer v. Billington, 577 F.Supp.2d 293 (D.C. 2008).



2010] Theorizing and Litigating the Rights of Sexual Minorities 43

reassignment surgery. The would-be boss's first reaction was, "Why in the
world would you want to do that?"'00

In 2008, a federal district court held that the withdrawal of the job
offer was sex discrimination in violation of Title VII. The court held that
the decisionmaker's concerns-that Schroer might not be able to get a
security clearance, that Schroer's military contacts might not be willing to
associate with her because she is transgender, and that the upcoming sex
reassignment surgery might distract her from her job-were merely a
pretext for discrimination based on sex stereotypes.1° Maybe it took an
Army Colonel and former member of the Special Forces coupled with the
hiring official's candor that her "perception of David Schroer as especially
masculine made it all the more difficult for her to visualize Diane Schroer
as anything other than a man in a dress" to make a compelling case for
transgender discrimination.102 These stories are indications of ways gay
rights advocates can do more to document the human dimension, range of
experiences, different family structures, and different needs.

Some of the stories in the equal protection realm seem to have
succeeded in litigation by erasing sexuality. Perhaps there are ways to focus
on the love, reintroduce the sexuality, and tell the stories of more disparate
members of the LGBT community. Other stories that are emerging outside
the context of litigation may be useful sources for a more inclusive sort of
LGBT Voices Brief. For example, Jennifer Finney Boylan in two books,
She's Not There and I'm Looking Through You, tells the story of how she
was born a male, James Boylan, was married, fathered two children, had
sex reassignment surgery, and how she and her wife, Grace, have navigated
their love for each other after the surgery.'0 3 It is an amazing, complicated
story of love that, of necessity, highlights issues of sexuality. Contrast her
story with the Kansas Supreme Court's desiccated reading of the marriage
of J'Noel and Marshall Gardiner, in which the court held that a marriage
between a man and a post-operative male-to-female transsexual was void ab
initio.1' 4 While the opinion delves into the various surgeries J'Noel had,
entirely missing from the opinion (and from the underlying district court

'0 Id. at 296.

"01 Id. at 296-97.

102 Id. at 305.

103 JENNIFER FINNEY BOYLAN, I'M LOOKING THROUGH YOU (2008); JENNIFER

FINNEY BOYLAN, SHE'S NOT THERE: A LIFE IN Two GENDERS (2004).

104 In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002).



44 Columbia Journal of Gender and Law [Vol. 19:1

record) was any understanding of the humans, their relationship, their
understanding of their marriage, or their love for each other. 105

Some stories are already being told in realms outside the context of
traditional rights litigation. After the attacks on the World Trade Center, the
New York Times published a "Portraits of Grief' series that included
stories of life partners, both gay and straight.10 6 Since the Department of
Justice did not create a specific exclusion for same-sex partners, Lambda
Legal took the cases of several gay and lesbian surviving life partners to
argue successfully for the eligibility for benefits from the federal September
11 Victims' Compensation Fund.10 7

When we think outside the white-picket-fence plaintiffs' box,
people are afraid of the prospect of plaintiffs far removed from the norm:
couples who might want an open marriage or those who met in a stereotypic
bathhouse, haven't known each other long, and want a quick Britney Spears
wedding. Telling stories that go beyond the paradigm plaintiff carries risks.
Telling those stories may carry even bigger risks in terms of how those
presentations get translated on the political side. Any differences from the
norm can become, in some people's eyes, a reason why sexual minorities
are different and why their rights should be restricted.

The types of legal claims being asserted will certainly frame the
sorts of stories that can be told. (Undoubtedly, the laws in particular areas,

°5 Id. at 137.

106 Sally F. Goldfarb, Disasters, Families, and the Law, 28 WOMEN'S RTS. L. REP.

35, 41 (2007).

107 Susan J. Becker, Tumbling Towers as Turning Points: Will 9/11 Usher in a New

Civil Rights Era for Gay Men and Lesbians in the United States?, 9 WM. & MARY J. WOMEN
& L. 207, 234-35 (2003). See also Moments of Silence Mark Fifth Anniversary of 9/li,
TUCSON WKLY. OBSERVER, Sept. 13, 2006, at 1, available at
http://www.tucsonobserver.com/archives/pdf/2006/09/Sep2O13.pdf. But see Goldfarb, supra
note 106, at 41, noting:

Special Master Kenneth Feinberg was aware of the injustice of denying
benefits to the partners of people killed in the attacks. He held hearings
to resolve disputes between unmarried partners and others, and he
worked to persuade the personal representative in such cases (who was
typically a parent or other family member of the decedent) to share the
award with the surviving partner. In the exercise of his discretion, he
sometimes offered to increase the total award to induce the personal
representative to allocate part of the sum to the partner, but these efforts
did not always succeed.



2010] Theorizing and Litigating the Rights of Sexual Minorities 45

such as the Don't Ask, Don't Tell policy, may have forced some awkward
storytelling. 0 8) As Cass Sunstein has noted:

Perhaps the rights protected by the Due Process Clause must
grow out of longstanding practices. But as it has come to be
understood, the Equal Protection Clause is tradition-correcting,
whereas the Due Process Clause is generally tradition-protecting.
The Equal Protection Clause sets out a normative ideal that
operates as a critique of existing practices; the Due Process
Clause safeguards rights related to those long-established in
Anglo-American law.'0 9

Pushing the envelope of deserving plaintiffs may be easier in the
due process fundamental rights area and may not translate as well to equal
protection theories. Due process does not demand a comparison to a
similarly situated in-group; the very burdening of the right is the
constitutional harm. With an equal protection challenge, it is imperative to
compare the plaintiff with a member of the group already receiving
benefits, so it is inherent in the equality realm that plaintiffs must base their
appeals on likeness to a superordinate group. Equality arguments, of
necessity, require discussions of sameness-but a more encompassing view
of the qualities of rights-bearing individuals may help avoid the problem of
the heteronormative ideal.

Litigating for LGBT rights is a process of organizing, becoming
visible, seeking recognition, and validating gay and lesbian identity. 10

Visibility has increased in so many realms-arts, the media, politics, and
public life-with gay-positive movies and television shows, actors, sports
figures, next door neighbors coming out, parades, festivals, gay-owned

108 For example, in Pruitt v. Cheney, 963 F.2d 1160, 1161-62 (9th Cir. 1992),

Captain Dusty Pruitt challenged her Army discharge based on her status of being a lesbian,
claiming that although she had entered two ceremonial marriages with women, the Army had
no evidence she had ever participated in any homosexual acts. Professor Diane Mazur
comments on the ironic practical storytelling necessitated by the state of the law: "Was she
trying to create the impression that she had never so much as held hands with either of her
partners in life, an act which would have disqualified her from military service?" Diane H.
Mazur, The Unknown Soldier: A Critique of "Gays in the Military" Scholarship and
Litigation, 29 U.C. DAVIS L. REV. 223, 240 (1996).

109 Cass R. Sunstein, The Supreme Court 1995 Term: Foreword: Leaving Things

Undecided, 110 HARv. L. REV. 4, 67 (1996).

110 Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79

VA. L. REV. 1551, 1558-64, 1608-11 (1993).



Columbia Journal of Gender and Law

businesses, gay-straight alliances in high schools, an increase in planned
families, changing views of religious institutions, creation of gay advocacy
groups, and elections of gay and lesbian officials. This increased visibility
has worked to increase understanding and acceptance of gays, lesbians, and
the transgendered and recognition of their families.' l Perhaps advocates
can find more ways to make visible in litigation the stories of those
members of the LGBT community who have been in the shadows.

III. SCIENCE, LITIGATION, AND LIBERATION

We are close to what Suzanne Goldberg has termed a
"constitutional tipping point" regarding the rights of sexual minorities. 12

Professor Goldberg makes the important observation that in times when
norms about social groups are destabilized, courts tend to focus on fact
adjudication rather than acknowledging their roles in making normative
judgments.' 13 When courts are asked to make difficult normative
judgments, Professor Goldberg warns, rightly I think, that "there is little to
prevent courts from randomly selecting data to support a given conclusion
and using that information out of context."' 14 What can prevent that
selective culling of supporting data is an insistence that decisions be made
based on cumulative, comprehensive, and converging evidence. This is
where this Article turns to the philosophy of science.

What this Article will argue for in this section is a more robust view
of the concept of scientific proof or theory-building in litigation than just
reliance on selected pieces of empirical evidence. This view suggests that
courts should make decisions that comport with the principles of scientific
inquiry. Certainly, theories have to meet basic criteria of falsifiability,

1 See generally Mary Patricia Bym, From Right to Wrong: A Critique of the 2000
Uniform Parentage Act, 16 UCLA WOMEN's L.J. 163, 187-95 (2007).

112 Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social
Change, and Fact-Based Adjudication, 106 COLUM. L. REv. 1955 (2006).

"' id. at 1961.

114 Id. at 1989. Professor Goldberg calls for courts to "recognize the connections

among cases involving the same social group" and to "acknowledge and defend[] ...
different treatment of the same facts in similar cases." Id. at 2014-15. Her "candid fact-based
adjudication" model is an excellent procedural approach that insists courts engage with
conflicting norms. What this Article proposes is a theoretical approach that both litigants and
courts should take toward evidence.

[Vol. 19:1



2010] Theorizing and Litigating the Rights of Sexual Minorities 47

simplicity or elegance, and explanatory power." 5 Beyond that, in deciding
controverted issues, courts should look for cumulative, comprehensive, and
converging evidence-the three C's of the scientific method. 1 6 Cumulative
evidence is mounting evidence; comprehensive evidence is evidence that
covers the waterfront; converging evidence is evidence that points in the
same direction. This means evidence gathered over time, in various
disciplines and contexts. 117

It may not be easy for judges to know when supporting data can be
considered cumulative or comprehensive, or even when it points in the
same direction. This may necessitate a willingness for courts to break out of
traditional doctrinal and jurisdictional molds, and search in disciplines
outside of law or in geographic areas outside a particular state or federal
jurisdiction for guidance. As just one example of the point, in recent
decades the Supreme Court has looked to international norms for growing
consensus evidence in death penalty cases and gay rights cases."18 When
issues are disputed and studies are introduced on both sides, courts should
also interrogate the empirical methodologies used-the sophistication of
studies, control of background and other independent variables, control
groups, sample size, research design, and expertise of the researchers,

115 See ARTHUR N. STRAHLER, UNDERSTANDING SCIENCE: AN INTRODUCTION TO

CONCEPTS AND ISSUES 58 (1992).

116 See PHILIPP FRANK, PHILOSOPHY OF SCIENCE: THE LINK BETWEEN SCIENCE AND

PHILOSOPHY 350 (1957) (discussing the testing of new scientific theories according to the
principle of convergence-how the theories fit with what is already known); Bernard Cohen,
History and the Philosopher of Science, in THE STRUCTURE OF SCIENTIFIC THEORIES 308, 321
(Frederick Suppe ed., 1977) (pointing out that knowledge in science is cumulative in that a
scientist "is apt to borrow or use or adapt a definition or a law or an axiom or a principle, or
even a whole theory, from one of his predecessors"). See generally Nancy Levit, Listening to
Tribal Legends: An Essay on Law and the Scientific Method, 58 FORDHAM L. REV. 263, 270
(1989) ("A theory must be consistent with the generally accepted body of knowledge, both
within its own discipline and in other areas. . . . Theories that rely on and relate to
comprehensive and converging evidence from other disciplines are more likely to be
valid.").

117 See, e.g., JEROME R. RAVETZ, SCIENTIFIC KNOWLEDGE AND ITS SOCIAL

PROBLEMS 209 (1973) (explaining that the "special character [of scientific knowledge]
results from the complexity and interconnectedness of its materials, as they evolve through
the complex and fallible social processes of their use and adaptation").

118 See, e.g., Roper v. Simmons, 543 U.S. 551 (2005); Lawrence v. Texas, 539

U.S. 558 (2003). See also Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) ("[W]ithin the
world community, imposition of the death penalty for crimes committed by mentally
retarded offenders is overwhelmingly disapproved.").



Columbia Journal of Gender and Law [Vol. 19:1

among other factors.1 9 1 have argued elsewhere that these principles are not
just useful in addressing controversial issues of fact, but are also useful for
value questions.' 

20

Advances of women have been tied to this sturdier methodology of
proof-one that relies on evidence over time and across cultures from a
variety of disciplines. To demonstrate systematic patterns of discrimination
and subjugation of women, feminist legal theorists looked to a wide array of
interdisciplinary evidence. They unearthed historical records to demonstrate
the persistence of patriarchy over generations.' 2' They drew on
sociolinguists, who examined gendered patterns of dominance and
subordination in discourse on different continents. 122 They used the tools of
literary theorists to explore the portrayals of women in texts.' 23 With this

119 See, e.g., Jeremy A. Blumenthal, Law and Social Science in the Twenty-First

Century, 12 S. CAL. INTERDISC. L.J. 1 (2002); Jeremy A. Blumenthal, Meta-Analysis: A
Primer for Legal Scholars, 80 TEMPLE L. REV. 201 (2007); Stephen A. Newman, The Use
and Abuse of Social Science in the Same-Sex Marriage Debate, 49 N.Y.L. SCH. L. REV. 537
(2004--05). The Canadian Supreme Court made this point well in its opinion in M 1). H,
[1999] 2 S.C.R. 3, at 296 (Can.), where the Court notes:

I have been greatly aided in my consideration of the existing social
science evidence by the voluminous Brandeis briefs and articles
submitted by the respondent. While this evidence is an important source
of information for this Court, I must stress that care should be taken with
social science data. When dealing with studies exploring the general
characteristics of a socially disadvantaged group, a court should be
cautious not to adopt conclusions that may in fact be based on, or
influenced by, the very discrimination that the courts are bound to
eradicate. Judges, in fact, should be diligent in examining all social
science material for experimental, systemic or political bias of any kind.

Id.

120 See Nancy Levit, Defining Cutting Edge Scholarship: Feminism and Criteria of
Rationality, 71 CHI.-KENT L. REV. 947, 955 (1996); Levit, supra note 116, at 265.

121 See, e.g., Ruthann Robson & S.E. Valentine, Lov(h)ers: Lesbians as Intimate

Partners and Lesbian Legal Theory, 63 TEMP. L. REV. 511, 536 (1990) (citing historian
GERDA LERNER, THE CREATION OF THE PATRIARCHY 110-11 (1986)).

122 See, e.g., Janet E. Ainsworth, In a Different Register: The Pragmatics of

Powerlessness in Police Interrogation, 103 YALE L.J. 259 (1993) (examining how different
courts have treated ambiguous language used to invoke Miranda rights in light of gendered
speech patterns).

123 See, e.g., SANDRA LiPsiTz BEM, THE LENSES OF GENDER: TRANSFORMING THE

DEBATE ON SEXUAL INEQUALITY 43-49 (1993) (discussing the subordination of women in
the Bible); Joan Williams, From Difference to Dominance to Domesticity: Care as Work,



2010] Theorizing and Litigating the Rights of Sexual Minorities 49

cumulative evidence converging from a host of disciplines, feminist legal
theorists built the case that socially, politically, and economically women
were subjected to systematic discrimination. They convinced courts to look
at this larger cultural context to find institutional responsibility. 24

Central to the process of feminist theorizing was a methodology
based on scientific inquiry. This more expansive view of the principles of
critical inquiry, based on evidence from the sciences, religion and the social
sciences-psychology, sociology, history, and cultural anthropology---can
serve sexual minorities well in litigating for rights.

A. Sexual Minorities and the Awkward Dance with Science

Sexual minorities have had an awkward relationship with science.
For gay men and lesbians, sexual orientation was originally medicalized as
a mental disorder; for the transgendered, it still is. Bisexuals are
uncomfortably situated with respect to the science of sexuality because they
call into question whether sexuality is a trait that is biologically motivated
at all.

125

Before 1900 sexologists created a taxonomy that classified
homosexuality as a congenital inversion of "normal" sexual desire,' 26 one
which they considered an "organic aberration[].' 27 But at least they argued

Gender as Tradition, 76 CHI.-KENT L. REV. 1441, 1468 (2001) (drawing on the works of

literary theorist Judith Butler).

124 See, e.g., United States v. Virginia, 518 U.S. 515, 536-40, 542-45 (1996)

(addressing the history of sex segregation in education, as well as demonstrating an
understanding of the constructed nature of sex differences, as various institutions of higher
education gradually admitted women for professional training).

125 There is increasing evidence about the consistency of bisexuals' self-

identification over time, but the research on bisexuals lags far behind that on lesbians and
gays because earlier researchers neglected bisexuality. See, e.g., MARJORIE GARBER, VICE
VERSA: BISEXUALITY AND THE EROTICISM OF EVERYDAY LIFE (1995); CLARE HEMMINGS,

BISEXUAL SPACES: A GEOGRAPHY OF SEXUALITY AND GENDER (2002); Lisa M. Diamond,
Female Bisexuality From Adolescence to Adulthood: Results From a JO-Year Longitudinal
Study, 44 DEVELOPMENTAL PSYCH. 5 (Jan. 2008); Paula C. Rodriguez Rust, Bisexuality: The
State of the Union, 13 ANN. REV. SEX RES. 180 (2002); Margaret Rosario et al., Sexual
Identity Development Among Lesbian, Gay, and Bisexual Youths: Consistency and Change
Over Time, 43 J. SEX RES. 46 (Feb. 2006).

126 Nancy J. Knauer, Science, Identity, and the Constructive of the Gay Political

Narrative, 12 LAW & SEXUALITY 1, 12 (2003).

217 Id. at 15.



50 Columbia Journal of Gender and Law [Vol. 19:1

that these "sexual impulses" that departed from the norm should not be
legally punished. 128 Psychoanalysts in the 1930s viewed homosexuality as a
psychiatric problem. 129 The first Diagnostic and Statistical Manual of
Mental Disorders (DSM-I) catalogued homosexuality as a form of
psychopathic personality disorder.' 30 In 1973 the American Psychiatric
Association removed homosexuality from the list of sociopathic mental
disorders but developed a new classification of "sexual orientation
disturbance," later called "ego-dystonic homosexuality."' 13 1 It was not until
1986-little more than two decades ago-that this category was finally
removed from the DSM-IIIR.132

As for those who are transgendered, in that same revision of the
DSM-IIIR, the APA added the category of "gender identity disorder" for
those who are "preoccupied with their wish to live as a member of the other
sex" and who may experience "an intense desire to adopt the social role of
the other sex or to acquire the physical appearance of the other sex through
hormonal or surgical manipulation."'' 33 Gender identity disorder is a
diagnosis that persists in the latest incarnation of the DSM. 134

Let's examine two slices of the ways courts have considered
scientific evidence in litigation regarding the rights of sexual minorities:

'28 Id. at 16-17.

129 Susan R. Schmeiser, The Ungovernable Citizen: Psychopathy, Sexuality, and

the Rise of Medico-Legal Reasoning, 20 YALE J.L. & HUMAN. 163, 226 (2008).

130 Kenji Yoshino, Covering, 111 YALE L.J. 769, 796-97 n.121 (2002) (citing

COMM. ON NOMENCLATURE & STATISTICS OF THE AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND
STATISTICAL MANUAL: MENTAL DISORDERS 38-39 (1 st ed. 1952)).

131 See Knauer, supra note 126, at 23-24.

132 See Suzanne B. Goldberg, Intuition, Morals, and the Legal Conversation About
Gay Rights, 32 NOVA L. REV. 523, 530 n.32 (2008) (noting that a category of "Sexual
Disorder Not Otherwise Specified" for those who experienced "persistent and marked
distress about [their] sexual orientation" is still in the DSM-IV).

133 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL

OF MENTAL DISORDERS (DSM-IV) 532-33 (4th ed. 1994). For a more complete history of the
revisions, see Susan J. Becker, Many Are Chilled, But Few Are Frozen: How Transformative
Learning in Popular Culture, Christianity, and Science Will Lead to the Eventual Demise of
Legally Sanctioned Discrimination Against Sexual Minorities in the United States, 14 AM. U.
J. GENDER SOC. POL'Y & L. 177, 237-38 (2006).

134 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL

OF MENTAL DISORDERS (DSM-TR) 576-77 (5th ed. 2000).



2010] Theorizing and Litigating the Rights of Sexual Minorities 51

evidence regarding the parenting capabilities of sexual minorities and
evidence regarding the immutability of sexual orientation.

B. Social Science Evidence Regarding LGBT Parents

In Baehr v. Lewin,135 the Hawaii Supreme Court remanded to the
trial court the factual issue of the state's interest in banning same-sex
marriage. On remand, the state of Hawaii tried to argue that children were
better off raised in a marital household with their biological parents.
However, its own expert witness testified that "gay and lesbian couples can,
and do, make excellent parents and that they are capable of raising a healthy
child."

136

The state of Vermont raised a variation of this argument in Baker v.
State, claiming that the state had an interest "in promoting the 'link between
procreation and child rearing."",,37 However, the court noted that the state
permitted many couples to marry who have no intent to procreate, and
observed that "a significant number of children today are actually being
raised by same-sex parents, and that increasing numbers of children are
being conceived by such parents through a variety of assisted-reproductive
techniques."' 138 If the state's interest is in legitimizing children, the court
concluded, "the exclusion of same-sex couples from the legal protections
incident to marriage exposes their children to the precise risks that the State
argues the marriage laws are designed to secure against."', 39

The argument that different-sex parents "further[] the well-being of
children" was persuasive to the Washington Supreme Court in Andersen v.
King County,14 0 when it upheld the state ban on same-sex marriage. The
court accepted the state's argument that "rearing children in a home headed
by their opposite-sex parents is a legitimate state interest furthered by
limiting marriage to opposite-sex couples because children tend to thrive in

"' 852 P.2d 44 (Haw. 1993).

136 Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *7 (Haw. Cir. Ct. Dec. 3,

1996).

117 744 A.2d 864, 870 (Vt. 1999).

138 Id. at 881.

'39 Id. at 882.

140 138 P.3d 963, 969 (Wash. 2006) (en banc). See generally Carlos A. Ball,
Blurring the Lines: Children and Bans on Interracial Unions and Same-Sex Marriages, 76
FORDHAM L. REV. 2733, 2754-55 (2008).



52 Columbia Journal of Gender and Law [Vol. 19:1

families consisting of a father, mother, and their biological children."'14 1 The
Arizona Court of Appeals reached a similar result in Standhardt v. Superior
Court ofArizona.142 The court held:

The State could reasonably decide that by encouraging opposite-
sex couples to marry, thereby assuming legal and financial
obligations, the children born from such relationships will have
better opportunities to be nurtured and raised by two parents
within long-term, committed relationships, which society has
traditionally viewed as advantageous for children. 143

Both the American Psychological Association and the American
Psychiatric Association have weighed in with statements summarizing the
scientific evidence and resolutions endorsing policies of nondiscrimination
regarding the parenting rights of sexual minorities.' 44 LGBT rights
advocates have moved from the defensive use of social science evidence as
a shield to using it as a sword.

141 Andersen, 138 P.3d at 983.

142 77 P.3d 451 (Ariz. 2003).

143 Id. at 462-63.

144 American Psychological Association (APA), Policy Statement on Sexual
Orientation, Parents, and Children, July 28-30, 2004, available at
http://www.apa.org/pi/lgbc/policy/parents.html (stating that "there is no scientific evidence
that parenting effectiveness is related to parental sexual orientation: lesbian and gay parents
are as likely as heterosexual parents to provide supportive and healthy environments for their
children" and that "research has shown that the adjustment, development, and psychological
well-being of children is unrelated to parental sexual orientation and that the children of
lesbian and gay parents are as likely as those of heterosexual parents to flourish," and
concluding that "the APA opposes any discrimination based on sexual orientation in matters
of adoption, child custody and visitation, foster care, and reproductive health services"). The
American Psychiatric Association has also stated that:

[n]umerous studies have shown that the children of gay parents are as
likely to be healthy and well adjusted as children raised in heterosexual
households. Children raised in gay or lesbian households do not show
any greater incidence of homosexuality or gender identity issues than
other children. Children raised in nontraditional homes with gay/lesbian
parents can encounter some special challenges related to the ongoing
stigma against homosexuality, but most children surmount these
problems.

American Psychiatric Association, Gay, Lesbian and Bisexual Issues,
http://www.healthyminds.org/glbissues.cfm (last visited Feb. 1, 2010).



2010] Theorizing and Litigating the Rights of Sexual Minorities 53

Intriguingly, in Kerrigan, the defendants "expressly have
disavowed any claim that the legislative decision to create a separate legal
framework for committed same sex couples was motivated by the belief
that the preservation of marriage as a heterosexual institution is in the best
interests of children."'' 45 However, arguing that same-sex marriage for
parents was in the best interests of their children was part of the litigation
strategy for amici who filed briefs in support of the plaintiffs in Kerrigan.
An amicus brief from the American Psychological Association, American
Psychiatric Association, the National Association of Social Workers, and
other organizations argued that the children of the approximately 66,000
gay fathers and 96,000 lesbian mothers 46 in the country would benefit from
the security, stability, legal clarity and reduced stigma if their parents were
granted the right to marry. 47

In the California same-sex marriage case, the Northern California
Chapter of the American Academy of Matrimonial Lawyers and the
California District of the American Academy of Pediatrics joined in an
amicus brief to argue that children are harmed financially, emotionally, and
psychologically if their parents are not allowed to marry-that "they
recognize they and their parents are treated as second-class citizens." 148

Picking up on this argument, amici the American Psychoanalytic
Association, the American Anthropological Association, and the Lawyers'
Committee for Civil Rights of the San Francisco Bay Area emphasized the
stigmatization of children of same-sex parents "if the State itself labels their
parents' relationship as 'different' and implicitly of lesser standing. "'149

These themes resonated with the California Supreme Court, which
recognized that state sanctioning of same-sex marriage provides children

141 957 A.2d at 477-78.

146 Brief of American Psychological Association et al. at 9, Kerrigan v. Comm'r of

Pub. Health, 957 A.2d 407 (Conn. 2007) (No. S.C. 17716), available at
http://www.glad.org/uploads/docs/cases/2006-01-31 -kerrigan-amicus-brief-child-
welfare.pdf.

147 Id. at 14-15.

148 Amicus Curiae Brief in Support of Parties Challenging the Marriage Exclusion,

In re Marriage Cases, 183 P.3d 384 (Cal. Oct. 4, 2007) (No. S 147999), 2007 WL 3167051 at
*1.

149 Amicus Curiae Brief of the American Psychoanalytic Association, the

American Anthropological Association, and the Lawyers' Committee for Civil Rights of the
San Francisco Bay Area, Urging Reversal of the Decision of the Court of Appeal, In re
Marriage Cases, 183 P.3d 384 (Cal. Oct. 4, 2007) (No. S147999), 2007 WL 4632420 at *33.



54 Columbia Journal of Gender and Law [Vol. 19:1

with a secure legal basis for their parents' union.' 5
0 The court ultimately

held that adhering to "the traditional definition of marriage ... will, as a
realistic matter, impose appreciable harm on same-sex couples and their
children."''

In Sex and Social Justice, Martha Nussbaum remarks on the use of
social science evidence regarding the rights of lesbian and gay parents to
adopt children or retain custody of them. She summarizes that "children
raised in homosexual households showed no differences from other groups,
either in sexual orientation or in general mental health or social
adjustment."' 52 This seems to be part of a broader project and implicit
scientific methodology of Professor Nussbaum's-to look at evidence from
a variety of disciplines, eras, and cultures to build the philosophical and
moral case for social justice for sexual minorities. The litigation strategies
of LGBT groups align with this approach as they move toward greater
inclusion of supporting social science evidence in their briefs.

C. Scientific Evidence Regarding the Immutability of Sexual
Orientation

Early gay rights advocates argued that because sexual orientation
was immutable (and because homosexuals are a politically powerless
minority and have been subjected to virulent antigay discrimination),
homosexuality deserved heightened scrutiny under the equal protection
clause. 53 The cumulative and converging evidence-studies in genetics,
anatomy, and neurobiology, 54 bolstered by anecdotal first person accounts,

"s' 183 P.3d at 425, 433.

151 Id. at 401.

152 NUSSBAUM, SEX AND SOCIAL JUSTICE, supra note 2, at 204.

153 See, e.g., Richard Delgado, Fact, Norm, and Standard of Review-The Case of

Homosexuality, 10 U. DAYTON L. REV. 575, 583-85 (1985); Harris M. Miller, Note, An
Argument for the Application of Equal Protection Heightened Scrutiny to Classifications
Based on Homosexuality, 57 S. CAL. L. REV. 797, 817-21 (1984).

154 See generally EDWARD STEIN, THE MISMEASURE OF DESIRE: THE SCIENCE,
THEORY, AND ETHICS OF SEXUAL ORIENTATION 305 (1999); Laura S. Allen & Roger A.
Gorski, Sexual Orientation and the Size of the Anterior Commissure in the Human Brain, 89
PROC. NAT'L. ACAD. SCI. USA 7199 (1992); J. Michael Bailey & Richard C. Pillard, A
Genetic Study of Male Sexual Orientation, 38 ARCHIVES GEN. PSYCHIATRY 1089 (1991);
Dean H. Hamer et al., A Linkage Between DNA Markers on the X Chromosome and Male
Sexual Orientation, 261 SCIENCE 321 (1993); Simon LeVay, A Difference in Hypothalamic
Structure Between Heterosexual and Homosexual Men, 253 SCIENCE 1034 (1991); Brian S.
Mustanski, A Genomewide Scan of Male Sexual Orientation, 116 HUM. GENETICS 272



2010] Theorizing and Litigating the Rights of Sexual Minorities 55

as well as overwhelming evidence of the failure of conversion or
"reparative" therapy'55-seems to indicate a strong biological location for
sexual orientation for gay men. While the evidence is more incomplete and
inconclusive regarding lesbians,' 56 sexual orientation seems highly resistant
to change.

The scientific evidence that sexual orientation is essentially
immutable was influential to some federal courts, particularly in cases in the
early 1990s challenging the military's policy of excluding gays and lesbians
from service, but most of those opinions have been vacated. 57 That
evidence was unpersuasive to other courts in the same era. 158

(2005); Qazi Rahman, The Neurodevelopment of Human Sexual Orientation, 29
NEUROSCIENCE & BIOBEHAVIORAL REV. 1057 (Nov. 2005); Ivanka Savic & Per Linstr6m,
PET and MRI Show Differences in Cerebral Asymmetry and Functional Connectivity
Between Homo- and Heterosexual Subjects, PROC. NAT'L. ACAD. SCI., Apr. 30, 2008,
http://www.pnas.org/content/early/2008/06/13/0801566105.full.pdf+html; D.F. Swaab et al.,
Brain Research, Gender and Sexual Orientation, 28(3/4) J. HOMOSEXUALITY 283, 283
(1995).

155 See American Psychiatric Association, Therapies Focused on Attempts to
Change Sexual Orientation (Reparative or Conversion Therapies) (May 2000),
http://www.psych.org/Departments/EDU/Library/APAOfficialDocumentsandRelated/Positio
nStatements/200001.aspx ("The potential risks of reparative therapy are great, including
depression, anxiety and self-destructive behavior, since therapist alignment with societal
prejudices against homosexuality may reinforce self-hatred already experienced by the
patient."); Katrina C. Rose, Sign of a Wave? The Kansas Court of Appeals Rejects Texas
Simplicity in Favor of Transsexual Reality, 70 UMKC L. REV. 257, 263 n.27 (2001) ("The
failure rate of the homosexuality 'cure' touted by the so-called 'ex-gay' movement-based
on one group's own numbers-is as high as 92 1/2%."). See also Karolyn Ann Hicks,
Comment, "Reparative" Therapy: Whether Parental Attempts To Change a Child's Sexual
Orientation Can Legally Constitute Child Abuse, 49 AM. U. L. REV. 505 (1999); Ariel Shidlo
& Michael Schroeder, Changing Sexual Orientation: A Consumers' Report, 33 PROF.
PSYCHOL.: RES. & PRAC. 249 (2002).

156 See, e.g., Janet E. Halley, Sexual Orientation and the Politics of Biology: A

Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 526, 542 (1994); Robert
Kunzig, Finding the Switch, PSYCHOL. TODAY, May-June 1998, at 88, 93, available at
http://www.psychologytoday.com/articles/200804/finding-the-switch.

157 See, e.g., Watkins v. U.S. Army, 847 F.2d 1329, 1339, 1348 (9th Cir. 1988),
vacated and aff'd on other grounds, Watkins v. U.S. Army, 875 F.2d 699, 704-11 (9th Cir.
1989); Able v. United States, 968 F. Supp. 850, 862-64 (E.D.N.Y. 1997), rev'd, 155 F.3d
628 (2d Cir. 1998); Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991), rev'd, 976 F.2d
623 (10th Cir. 1992). Other courts simply relied on the status-conduct distinction and held
that classifications based on conduct were constitutionally permissible. See, e.g., Thomasson
v. Perry, 80 F.3d 915, 948 (4th Cir. 1996).

158 See, e.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563, 573 (9th Cir. 1990) (holding, without citation to any scientific authority, that



Columbia Journal of Gender and Law [Vol. 19:1

Theorists identified a number of difficulties with using a litigation
strategy that rests on the immutability of sexual orientation to claim suspect
class status. 159 The tactic of focusing on innate differences can reinforce the
perception of sexual minorities as Other, which may undercut the strategy
of shared humanity.1 60 At the extreme, commentators raised the specter that
discovery of a "gay gene" could lead to eugenics. 61 As a political strategy,
the tactic is uncertain, because beliefs in immutability do not ineluctably
lead to support of civil rights for sexual minorities. 62 It omits from
protection bisexuals, transsexuals, those whose orientation is ambiguous or
in flux-as well as all voluntary conduct.1 63 The larger moral problem is
that origins of sexual desire should really be beside the point.1 64 The
problems with the immutability argument seem to be more than just
theoretical risks. For example, some people who have sought refugee status
fearing persecution based on bisexuality have had difficulty obtaining relief

"[h]omosexuality is not an immutable characteristic; it is behavioral and hence is
fundamentally different from traits such as race, gender or alienage"); Woodward v. United
States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) ("Members of recognized suspect or quasi-
suspect classes, e.g., blacks or women, exhibit immutable characteristics whereas
homosexuality is primarily behavioral in character.").

159 For a contrary set of concerns, see Suzanne B. Goldberg, On Making Anti-

Essentialist and Social Constructionist Arguments in Court, 81 OR. L. REv. 629, 631 (2002)
(cautioning that arguments heavily emphasizing the social construction of sexuality could
prompt courts to find "the category of 'gays and lesbians' too diffuse to amount to a
cognizable class").

160 Knauer, supra note 126, at 39-40 (criticizing strict classifications of sexual

orientation).

161 See, e.g., Susan J. Becker, Many Are Chilled, But Few Are Frozen: How

Transformative Learning in Popular Culture, Christianity, and Science Will Lead to the
Eventual Demise of Legally Sanctioned Discrimination Against Sexual Minorities in the
United States, 14 AM. U. J. GENDER SOC. POL'Y & L. 177, 248 (2006) ("The worst case
scenario is that a biological or genetic marker for homosexuality will serve as a socially and
medically approved basis for altering or aborting such 'defective' fetuses or for
implementing social policy based on the 'natural distinctions' between sexual minorities and
other individuals.") (internal citations omitted).

162 Knauer, supra note 126, at 33, 37.

163 See generally Halley, supra note 156, at 520; Kenji Yoshino, The Epistemic

Contract of Bisexual Erasure, 52 STAN. L. REv. 353, 405-06 (2000).

164 See Halley, supra note 156, at 567-68.



2010] Theorizing and Litigating the Rights of Sexual Minorities 57

because of the dominant understanding of sexual orientation as
immutable.

65

Uses of the immutability argument in the past decade or so,
primarily in same-sex marriage cases, have been both more nuanced and
somewhat more successful. Regarding the factors in immutability analysis,
courts do not dispute that sexual minorities have been victims of virulent
discrimination and stigmatized. Some courts have rejected the idea that
gays and lesbians are politically powerless.' 66 A key location of dispute is
the question of the alterability of sexual orientation.

Litigators are not making the absolutist argument that they were in
the early years that sexual orientation is inborn, innate, and
unchangeable. 67. They are developing a less essentialist claim that sexual
orientation is not fixed, but deeply rooted. 68 This argument adds a layer,
drawn from social psychology, that cultural perception and treatment of an
identity characteristic can make that characteristic constructively
immutable. 169 The movement is from an argument of strict biological
causation to a focus on identity as a status that is in part socially
constructed, but nonetheless real-with political and legal consequences
that are both outside the control of individuals and not a legitimate ground
for government action. It is a category that, in the words of Professor Sam
Marcosson, is both "experienced as immutable by many individuals"' 70 and
"constitutive of part of their identity."' 7' The parallels to race, sex, and
religion are that they are all about the socially constructed meaning of the
categories that end up, from an individual point of view, as essentially
immutable for the person whose lived experiences are dictated. The
importance of race, for example, is not the biological category but the social

165 See Sean Rehaag, Patrolling the Borders of Sexual Orientation: Bisexual

Refugee Claims in Canada, 53 McGILL L.J. 59 (2008).

166 See, e.g., Dahl v. Secretary of the United States Navy, 830 F. Supp. 1319, 1324

(E.D. Cal. 1993) (finding a triable issue of fact regarding whether homosexuality is
immutable, but holding the point was moot because gays and lesbians were not politically
powerless).

167 See supra cases cited in note 157.

168 See infra discussion in text at notes 184-90.

169 See Marcosson, supra note 16, at 700-10.

70 Id. at 700.

171 Id. at 701.



Columbia Journal of Gender and Law

features that make people unable to move from imposed caste systems that
are truly immutable. The benefit of the constructive immutability argument
is that it encompasses a diverse community, since the subordinating harms
of the category as constructed "are shared by lesbians and gay men who do
not experience their classification as immutable."'' 72

Martha Nussbaum commented on the immutability debate in an
essay several years ago. She pointed out that the constructed category has
become essentialized in ways that are unchosen.' 73 She also noted that the
aspect of the immutability argument that appeals to the public is innateness
as a lack of choice-and therefore an inappropriate source for stigma or
blame. 174 Professor Nussbaum also makes clear that the power of the
immutability argument derives from coupling it with a moral argument
about the substance of what is being denied to people because of the
unchosen characteristic: "denying people a form of sexual fulfillment that
cannot be substituted for because of deep factors about the organization of
their personalities is indeed cruel and unreasonable."' ' 75

Consider the ways recent court decisions addressing same-sex
marriage cases have treated the immutability argument. Two of the courts
finding marriage or marriage-like rights for same sex couples did not
address the immutability idea. 176 Most of the recent decisions denying those
rights also omitted immutability analysis. 177 Yet in Conaway v. Deane,'78

where the Maryland Court of Appeals found a rational basis for prohibiting
same-sex marriage, the court commented on the absence of briefs on the
immutability issue-although given the steep standard the court implies it
would have invoked, the lack of briefing was probably not determinative of
the outcome. In a footnote, the court briefly sketched three of the studies
from the early 1990s, considered critiques of them, and then stated that "the

172 Id. at 710.

173 Martha C. Nussbaum, Millean Liberty and Sexual Orientation: A Discussion of

Edward Stein's "The Mismeasure of Desire, "21 L. & PHIL. 317, 320 (2002).

174 Id. at 321 n.4.

171 Id. at 332.

176 See Goodridge, 798 N.E.2d 941; Lewis v. Harris, 908 A.2d 196 (N.J. 2006).

177 See Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003); Bums v.
Bums, 560 S.E.2d 47 (Ga. Ct. App. 2002); Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App.
2005); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Li v. State, 110 P.3d 91 (Or. 2005).

118 932 A.2d 571, 615 n.57 (Md. 2007).

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2010] Theorizing and Litigating the Rights of Sexual Minorities 59

biological studies do not establish that biology is the primary indicator of
sexual orientation."'179 The court concluded that "there does not appear to be
a consensus yet among 'experts' as to the origin of an individual's sexual
orientation."'1

80

The absence of briefing the issue may have mattered in Andersen v.
King County.'5 ' The parties did dispute whether sexual orientation was
immutable, yet the court rejected the argument, which had been based on
legal precedents but, according to the court, not supported by empirical
studies. The court held:

The plaintiffs do not cite other authority or any secondary
authority or studies in support of the conclusion that
homosexuality is an immutable characteristic. They focus instead
on the lack of any relation between homosexuality and ability to
perform or contribute to society. But plaintiffs must make a
showing of immutability, and they have not done so in this

182case.

Of course this same plurality simply ignored the amicus brief of the
American Psychological Association, which provided a wealth of psycho-
social evidence that homosexuality was a normal expression of human
sexuality and that children of same-sex couples would benefit
psychologically if their parents were allowed to marry. 83 So perhaps the
court was not really open to persuasion with scientific evidence.

In several of the most prominent decisions finding a right to same-
sex marriage, the immutability idea was one of the struts of the decisions. In

179 id.

180 Id.

"' 138 P.3d 963 (Wash. 2006).

182 Id. at 974. In a footnote, the court left open the question for future research:

"We recognize that this question is being researched and debated across the country, and we
offer no opinion as to whether such a showing may be made at some later time." Id. at 974
n.6. Brief of Respondents Castle et al., Andersen, 138 P. 3d 963 (No. 75934-1) 2004 WL
3155215 at *55-56 (Nov. 29, 2004), did refer to prior legal authorities regarding
immutability, as well as the American Psychological Association's condemnation of
reparative therapy, to conclude that sexual orientation is a characteristic that is not only
irrelevant to the issue but also one that is exceedingly difficult to change.

183 Amicus Curiae Brief of American Psychological Association, Anderson, 138 P.

3d 963 (No. 75934-1), 2005 WL 901986.



Columbia Journal of Gender and Law

1995 in Egan v. Canada,184 the Supreme Court of Canada held unanimously
that sexual orientation was sufficiently analogous to the enumerated bases
for prohibited discrimination in the Canadian Charter of Rights and
Freedoms that the equality provisions also banned discrimination based on
sexual orientation. Ruling that it was illegal to deny homosexual couples the
spousal social security allowance to which married couples were entitled,
the Court stated, "whether or not sexual orientation is based on biological or
physiological factors, which may be a matter of some controversy, it is a
deeply personal characteristic that is either unchangeable or changeable
only at unacceptable personal costs."1 85

The Connecticut Supreme Court in Kerrigan v. Commissioner of
Public Health186 ruled that sexual orientation is a quasi-suspect
classification, finding that immutability, although not a requirement, was a
factor in invoking heightened scrutiny. The court described sexual
orientation in constructivist terms as a "distinguishing characteristic that
defines them as a discrete group," and a "central, defining [trait] of
personhood"-as well as a characteristic that has been the source of virulent
discrimination-and asking "whether the characteristic at issue is one
governments have any business requiring a person to change."' 187

Similarly, in In re Marriage Cases,'88 the California Supreme Court
found that immutability was not an absolute requirement for suspect class
status. The court expressed appreciation for the amicus briefs filed and
specifically cited to the American Psychological Association and the
American Psychiatric Association brief that sexual orientation is an
important "characteristic of the individual, like biological sex, gender
identity, or age."'189 Comparing sexual orientation to religion, the court
evinced an understanding of the constructive immutability idea: "Because a
person's sexual orientation is so integral an aspect of one's identity, it is not
appropriate to require a person to repudiate or change his or her sexual
orientation in order to avoid discriminatory treatment."' 90

184 [1995] 2 S.C.R. 513 (Can.).

'85 Id. at 5.

186 957 A.2d 407.

' Id. at 438-39 (internal citations omitted) (emphasis in original).

188 183 P.3d 384 (Cal. 2008).

181 Id. at 407 n.10; id. at 441 n.59 (emphasis in original).

' Id. at 442.

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2010] Theorizing and Litigating the Rights of Sexual Minorities 61

In sum, the immutability argument has been persuasive recently to
some courts in same-sex marriage cases. These courts are beginning to
accept the view articulated so well by Martha Nussbaum that sexuality is
fundamental to identity. They also recognize that while change of one's
sexual orientation is not impossible, it is often substantially difficult, and,
whether alteration is difficult or not, that change is not something that
should be compelled by government. To these sympathetic courts, sexual
orientation is not a fixed biological location but one in which personhood is
also constructed as a matter of group identity. And they acknowledge that
the current construction of sexual identity is encumbered with virulent
stereotypes that are completely unchosen by the individuals affected. The
idea that attaching any consequences of blame or stigma to a status that is
largely unchosen produces fundamental unfairness seems to resonate with
these courts.

The example of constructive immutability offers a much more
robust view of science and social science evidence. This is not a situation of
waiting to see if the empirical evidence of biological causation becomes
more undeniable. It is a more nuanced, deeper, richer theory of evidence
that looks at the social science evidence regarding categories as the product
of social construction.

Similarly, a number of briefs in same-sex marriage cases looked
more broadly for evidence across disciplines showing the acceptance of
same-sex unions. For instance, in the New Jersey Lewis v. Harris case,
Lambda arranged for amicus briefs from more than one hundred clergy
members to argue that allowing civil same-sex marriage would not undercut
religious views of marriage, from historians who argued that same-sex
couples have existed throughout history, and from the American
Psychological Association, which maintained that "children of same-sex
couples would benefit if their parents were allowed to marry."' 9' A similar
brief was filed in New York to "demythologiz[e] the history of marriage in
New York," noting that numerous features of marriage, such as husbands'
absolute control over their wives, have long been alterable.' 92

Plaintiffs in Kerrigan v. Commissioner of Public Health obtained
an amicus brief from history and family law professors who emphasized the

191 Bruck, supra note 55, at 426.

192 See Suzanne B. Goldberg, A Historical Guide to the Future of Marriage for

Same-Sex Couples, 15 COLUM. J. GENDER & L. 249, 252 (2006) (including Brief of
Professors of History & Family Law as Amici Curiae in Support of Plaintiffs-Respondents,
Hernandez v. Robles, 26 A.D.3d 98 (N.Y. App. Div. July 28, 2005)).



Columbia Journal of Gender and Law

fluidity of the institution of marriage throughout time and over history.' 93

They were joined by a group of comparative constitutional law and
international human rights scholars, who attested to the trend in foreign
jurisdictions toward expanding civil marriage rights to same-sex couples.' 94

A group of religious bodies from different faith traditions filed an amicus
brief supporting the idea that civil marriage should be kept distinct from
religious ideals of marriage.195

In a fairly dramatic shift in the past twenty years, science is
becoming an ally to rather than an oppressor of gays and lesbians. LGBT
litigators are moving toward more extensive uses of scientific evidence in
support of equal rights. The uses of social scientific evidence in cases
raising issues of parenting abilities, the immutability of sexual orientation,
and the acceptance of same-sex marriage across cultures are emblematic of
the idea that science can be used to promote gay rights. The science that
they are using is a richer conception than simply biological imperatives; it
draws on cumulative, comprehensive, and converging evidence from a wide
variety of disciplines in support of arguments. These litigators see the
persuasive value of scientific evidence and scientific methods in- making
arguments to courts and the public about moral questions.

IV. CONCLUSION

This Article has focused on an unlikely pairing-love and science.
Both play a role in Martha Nussbaum's scholarship and both have been
used in LGBT litigation. One of the tensions in litigating the rights of
sexual minorities has been the attachment to the heteronormative ideal.
Martha Nussbaum's central idea-that we need to act in ways that affirm
human dignity-may offer a path that helps avoid the heteronormativity

193 Brief of Amicus Curiae the Professors of History and Family Law in Support of

Plaintiffs-Appellants, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2007) (No.
S.C. 17716), available at http://www.glad.org/uploads/docs/cases/2006-12-12-kerrigan-
history-amicus-brief.pdf.

194 Amicus Brief on Comparative and International Law in Support of Plaintiffs-

Appellants, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2007) (No. S.C.
17716), available at http://www.glad.org/uploads/docs/cases/2006-12-12-kerrigan-amicus-
international-brief.pdf).

195 Brief and Appendix of the Amici Curiae Religious Organizations and Clergy,

Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (No. S.C. 17716), available
at http://www.glad.org/uploads/docs/cases/2006-12-12-kerrigan-amicus-brief-religion.pdf.

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2010] Theorizing and Litigating the Rights of Sexual Minorities 63

problem. As the implicit methodology of her works emphasizes, a deeper
approach to scientific inquiry will support this project.

In urging more love and more science, is there a conflict in either
the metamessages or the methodology? First, on the level of metanarrative,
science is not about the outliers, it is about the norm. Second,
methodologically, stories bring in the anecdotal-narratives that are not
themselves impartial, objective, or empirical.

Stories, though, are real: "they are populated by real people; they
afford a special emphasis to personal details, to nuanced characterizations,
to the richness of human experience."'1 96 But we need to tell stories about all
of the members of our community. As Sam Marcosson says, "We're not
going to win an ultimate stable victory if it is based on a false picture of the
community.

' 197

Stories acknowledge that knowledge is incomplete, partial, and
uncertain. Stories alone may not be rights-claiming, but they are a central
tool of persuasion when used in litigation, particularly if supported by
broader evidence from the sciences and social sciences. Law has limits; it
cannot grant or require societal acceptance. These litigation strategies are
part of the broader project about changing the ways straight people think
about gays, lesbians, bisexuals, and the transgendered. It is difficult to fight
against power and entrenched ignorance, but Martha Nussbaum offers hope
that reason will ultimately triumph over injustice: "[I]f we face the issue
with good moral arguments, appropriately illuminated by historical and
cross-cultural understanding, there is reason to believe that we can prevail
over prejudice, both in the courts and in the larger society of which they are
a part."

'1 98

196 Hayman & Levit, supra note 80, at 399.

197 Telephone interview with Sam Marcosson, Professor of Law, University of

Louisville, Louis D. Brandeis School of Law (Nov. 10, 2008).

'9 8 NUSSBAUM, HIDING FROM HUMANITY, supra note 2, at 331.