Center for Gender & Sexuality Law
We are living in an extraordinary period of gay and lesbian history. As lesbian and gay civil rights gain increasing recognition throughout the country – through small but growing numbers of laws prohibiting sexual orientation discrimination, court rulings protecting lesbian and gay parents' custody of their children, and a historically unprecedented level of positive media coverage – our struggles also have escalated enormously. Not only must we litigate and negotiate for equal opportunity in employment, housing, and parenting rights as always, but also we face a nationally organized and terrifically well-funded assault on our fundamental rights as citizens.
This nationwide anti-gay assault takes many forms – from hate-mongering talk shows, to anti-gay electoral campaigns, to citizen-sponsored initiatives aimed at repealing civil rights protections and domestic partner benefits programs, and ultimately to those measures which are the subject of this conference – measures that would prohibit future passage of antidiscrimination protections specifically for lesbians, gay men, and bisexuals and repeal any such existing protections.
Although I focus these remarks on the latter measures, which have come to be known popularly as "anti-gay initiatives," we must bear in mind that these initiatives represent the tip of the iceberg in terms of the total organized opposition to lesbian and gay civil rights. Other orchestrated efforts, including programs such as "Project Spotlight," which seeks to make support for civil rights protections for lesbians and gay men the death knell of any candidate's campaign for elected office, will continue to grow in size and influence even as anti-gay legislation is declared unconstitutional around the country. Without a well-organized and well-informed response to these measures, the efforts to restrict the basic civic participation of lesbians and gay men will only grow stronger.
Also, as we can see by the persistence of these initiatives despite their defeats in court, the radical right's purpose in promoting the measures is not simply to win at the ballot box or even in court. Rather, the promoters enjoy a victory each time an anti-gay measure is placed on the ballot for popular vote. The initiative process provides them with a "legitimate" forum in which to hold public debate about whether lesbians and gay men are entitled to full citizenship rights and even about whether lesbians and gay men should be free to live in peace. Material that would otherwise receive no attention or at most be buried in the media, such as falsified information about the lives and health of gay people, suddenly holds the public's interest because it bears on citizens' decisions about a proposed piece of legislation or a constitutional amendment. Under the guise of "information for the electorate," materials are circulated which do nothing more than appeal to popular prejudices against gay people.
As I discuss in greater detail below, the danger of these initiatives goes far beyond their effect on lesbians, gay men, and bisexuals. This all-out assault on the structure of government and the basic framework of civil rights protections suggests that rather than being labeled ant-gay initiatives, these measures should really be known as antidemocracy initiatives – and I will sometimes call them just that.
Suzanne B. Goldberg,
Facing the Challenge: A Lawyer's Response to Anti-Gay Initiatives,
Ohio St. L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/971