ARTICLE: THE POLITICS OF THE CLOSET: TOWARDS EQUAL PROTECTION FOR GAY, LESBIAN, AND BISEXUAL IDENTITY. Skip over navigation
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Copyright (c) The Regents of the University of California 1989.
UCLA Law Review

ARTICLE: THE POLITICS OF THE CLOSET: TOWARDS EQUAL PROTECTION FOR GAY, LESBIAN, AND BISEXUAL IDENTITY.

June, 1989

36 UCLA L. Rev. 915

Author

Janet E. Halley *

Excerpt

In the summer of 1986, the U.S. Supreme Court made it resoundingly clear that no fundamental privacy right attaches to consensual homosexual sodomy. 1 Bowers v. Hardwick forged an equally indubitable link between the question of homosexual rights under the Constitution and the proper scope of judicial review of legislative decisions. Invoking the specter of Lochner v. New York 2 and "the face-off between the Executive and the Court in the 1930's," Justice White's majority opinion argued that "the Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizible roots [sic] in the language or design of the Constitution." 3 Chief Justice Burger concluded in his concurring opinion, "this is essentially not a question of personal 'preferences' but rather of [sic] the legislative authority of the State." 4 By refusing to extend its substantive due process jurisprudence, the Court remanded gay men and lesbians 5 to the political arena to combat sodomy laws and their discriminatory enforcement through the majoritarian political process.

The history of the United States testifies eloquently to the fact that, when a despised minority must fend for itself in the tumult of electoral and legislative politics, the majority may deny it a fair chance. Ever since United States v. Carolene Products, 6 the Supreme Court has acknowledged the constitutional dimension of this fact by committing itself to ensuring that the political process is not unfairly rigged. Carolene Products announced a rejection of ...
 
 
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