The Gay Rights Question in Contemporary American Law (Paperback)

~ (Author) "It used to be worse..." (more)
Key Phrases: sex discrimination argument, gay rights question, own domiciliaries, United States, Fourteenth Amendment, Equal Protection Clause (more...)

Editorial Reviews

Review

"The Gay Rights Question challenges American law to treat gay people the same as heterosexuals - and does so straight out of existing constitutional doctrine. Koppelman's arguments cannot be ignored by any official or person who must consider gay rights claims." - William N. Eskridge Jr., Yale Law School

Product Description

The gay rights question is whether the second-class legal status of gay people should be changed. In this book Andrew Koppelman shows the powerful legal and moral case for gay equality, but argues that courts cannot and should not impose it.

The Gay Rights Question in Contemporary American Law offers an unusually nuanced analysis of the most pressing gay rights issues. Does antigay discrimination violate the Constitution? Is there any sound moral objection to homosexual conduct? Are such objections the moral and constitutional equivalent of racism? Must state laws recognizing same-sex unions be given effect in other states? Should courts take account of popular resistance to gay equality? Koppelman sheds new light on all these questions. Sure to upset purists on either side of the debate, Koppelman's book criticizes the legal arguments advanced both for and against gay rights. Just as important, it places these arguments in broader moral and social contexts, offering original, pragmatic, and workable legal solutions.

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Product Details Paperback: 220 pages Publisher: University Of Chicago Press; 1 edition (July 1, 2002) Language: English ISBN-10: 0226451011 ISBN-13: 978-0226451015 Product Dimensions: 9 x 5.8 x 0.7 inches Shipping Weight: 11.8 ounces (View shipping rates and policies) Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review) Amazon.com Sales Rank: #1,429,375 in Books (See Bestsellers in Books)

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› Visit Amazon's Andrew Koppelman Page

Front Cover | Table of Contents | First Pages | Index | Back Cover | Surprise Me!

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Inside This Book (learn more)

First Sentence:
It used to be worse. Read the first page

Key Phrases - Statistically Improbable Phrases (SIPs): (learn more)
sex discrimination argument, gay rights question, own domiciliaries, reproductive kind, definitional provision, miscegenation cases, inherently heterosexual, invidious intent, new natural law theory, statutes rationale, public policy doctrine, impermissible motives, invidious purpose, impermissible purpose, public policy exception, privacy doctrine, homosexuality taboo, privacy argument, bare desire, homosexual conduct, minimal scrutiny, strong public policy, discrimination against lesbians, equal protection doctrine, forum state

Key Phrases - Capitalized Phrases (CAPs): (learn more)
United States, Fourteenth Amendment, Equal Protection Clause, New York, Board of Education, North Carolina, South Carolina, Defense of Marriage Act, Jim Crow, Justice Scalia, New Deal, District of Columbia, Civil War, Ninth Amendment, Planned Parenthood

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Front Cover | Table of Contents | First Pages | Index | Back Cover | Surprise Me!

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Citations (learn more)

This book cites 96 books:

• Gaylaw: Challenging the Apartheid of the Closet by William N. Eskridge Jr. on 5 pages
• The TEMPTING OF AMERICA by Robert H. Bork on 4 pages
• Natural Law (Vol. 1) (The International Library of Essays in Law & Legal Theory) by John Finnis on 4 pages
• American Constitutional Law (University Textbook Series) by Laurence H. Tribe on 4 pages
• Antidiscrimination Law and Social Equality by Professor Andrew Koppelman on 4 pages

See all 96 books this book cites

 

7 books cite this book:

• Marriage and Same-Sex Unions: A Debate by Lynn D. Wardle on page 217, page 243, and Back Matter
• The Future of Gay Rights in America by H.N. Hirsch on page 164, page 293, and Back Matter
• A Year at the Supreme Court (Constitutional Conflicts) by Jr. Stuart Taylor in Back Matter
• Hiding from Humanity: Disgust, Shame, and the Law by Martha C. Nussbaum in Back Matter
• The Ultimate Rule of Law by David M. Beatty on page 82

See all 7 books citing this book

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Books on Related Topics (learn more)

Constitutional Law by Mark V. Tushnet

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• impermissible motives
• impermissible purpose
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Constitutional Law by Jonathan Neville

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Same-Sex Marriage by Joseph Landau

Discusses:

• miscegenation cases
• inherently heterosexual
• public policy doctrine

Emanuel Law Outlines by D. Kelly Weisberg

Discusses:

• public policy exception
• privacy doctrine
• minimal scrutiny

A Companion to Philosophy of Law and Legal Theory by Dennis Patterson

Discusses:

• own domiciliaries
• privacy doctrine
• privacy argument

Constitutional Analysis by Jerre S. Williams

Discusses:

• invidious purpose
• impermissible purpose
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Constitutional Law by Mark V. Tushnet Discusses: impermissible motives impermissible purpose bare desire Constitutional Law by Jonathan Neville Discusses: impermissible motives minimal scrutiny Fourteenth Amendment Same-Sex Marriage by Joseph Landau Discusses: miscegenation cases inherently heterosexual public policy doctrine Emanuel Law Outlines by D. Kelly Weisberg Discusses: public policy exception privacy doctrine minimal scrutiny Loading...

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	57% buy the item featured on this page: The Gay Rights Question in Contemporary American Law 5.0 out of 5 stars (1) $22.00
	28% buy Same Sex, Different States: When Same-Sex Marriages Cross State Lines 4.0 out of 5 stars (1) $33.96
	9% buy Gaylaw: Challenging the Apartheid of the Closet $27.31
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Customer Reviews

1 Review 5 star:  (1) 4 star:    (0) 3 star:    (0) 2 star:    (0) 1 star:    (0)           Average Customer Review 5.0 out of 5 stars (1 customer review)		Share your thoughts with other customers:
Most Helpful Customer Reviews 2 of 2 people found the following review helpful: 5.0 out of 5 stars Fascinating legal review pre-Lawrence., November 7, 2004 By  Jesse Liberty "Silverlight Geek" (MA USA) - See all my reviews    This is a fascinating book, targeted at lawyers, but readable by the informed lay person. Koppelman begins with an overview of Romer, in which the Supreme Court held that a Colorado state constitutional amendment violated the United States Constitution by providing that "neither the state nor any of its subdivisions could prohibit discrimination on the basis of homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Justice Kennedy wrote that the Amendment "has the peculiar property of imposing a broad and undifferentiated disability on a single named group," and Koppelman summarizes the decision as saying "if a law targets a narrowly defined group and then imposes on it disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate government interest then the court will infer that the law's purpose is simply to harm that group, and so will invalidate that law." * He provides background on homophobia, quoting from a 1950 Senate committee investigation on the employment of homosexuals that "Even one sex pervert in Government tends to have a corrosive influence on his fellow employees... One homosexual can pollute a Government office." He also points out that a recent study by the US Department of Justice found that homosexuals are "the most frequent victims [of hate violence today]," and public opinion polls show that homosexuals are the least liked group in America, with 28.2% giving homosexuals a zero ranking (on a scale of 0 to 100) with only 9% doing so for illegal immigrants and 2 percent doing so for Blacks. Some of the book is spent trying to reconcile Romer with Bowers v. Hardwick (1986) in which the Supreme Court held that a law criminalizing homosexual sodomy did not violate the Due Process Clause. It is fascinating to see him struggle with Bowers when you know that his argument against this decision, which he characterizes as "a disastrously bad piece of judicial craftmanship," was to win the day only months after the book's publication in the Lawrence decision of 2003. The thrust of the book is to examine four arguments for gay rights in general and gay marriage in particular: The Equal Protection clause of the 14th amendment The Due Process clause of the 14th amendment The "Right to Privacy" arising out of Griswold and also Roe Sex discrimination In one fascinating section he shows how the Federal DOMA removes the full faith and credit assumption only from judgments in which the rendering court recognizes same-sex marriage but not in which the rendering court denies it. Thus, in a hypothetical wrongful death case, if the defendant "filed a counterclaim for declaratory judgment and relitigated in the liability in a new forum, and that court held that no wrongful death suit could lie because no marriage ever existed, that judgment would be entiteled to full faith and credit everywhere, even in the state that recognizes same-sex marriage....If on the other hand the new forum state refused to collude in this evasion and confirmed the judgemetn,t he second judgment, too, would under DOMA not be entitled to full faith and credit, because that second judgment too would have recognized the existence of a same-sex marriage. The defendant would then be free to relitigate the question anew in a third forum and a fourth and so on. When at last he found a court that would cooperate with his scheme, the judgment issued by that forum would then be entitled to full faith and credit throughout the United States!" Koppelman's conclusion is that not only is the Federal DOMA unconstitutional, but it is so clearly targeted at homosexuals as a class that it strengthens the argument in favor of treating homosexuals as a suspect class, and thus laws against homosexuals are more suspect and held to a harder-to-defend standard. Thus, in the long run, he argues, DOMA will strengthen gay rights.		Search Customer Reviews Only search this product's reviews

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Product Details

• Paperback: 220 pages
• Publisher: University Of Chicago Press; 1 edition (July 1, 2002)
• Language: English
• ISBN-10: 0226451011
• ISBN-13: 978-0226451015
• Product Dimensions: 9 x 5.8 x 0.7 inches
• Shipping Weight: 11.8 ounces (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon.com Sales Rank: #1,429,375 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

2 of 2 people found the following review helpful:

5.0 out of 5 stars Fascinating legal review pre-Lawrence., November 7, 2004

By	Jesse Liberty "Silverlight Geek" (MA USA) - See all my reviews

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

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

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

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

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

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


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



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