An Impressionable Court: The Influence of the Rhetoric and Growth of the Gay Rights Movement on America’s Legal System
by Scott Kall | Summer 2017
For centuries, our court system has been thought as independent and unbending to societal pressure, something our forefathers and many eminent scholars today claim is the greatest success of our judiciary. Using literary analysis to analyze the gay rights movement’s rhetoric and growth, and relevant legal decisions, I have found a clear connection between the language and methods of the movement and the case law surrounding it. In other words, as the approach of advocates and other players in the gay rights movement changed, those changes manifested themselves in the legal pertaining to the homosexual community. This case directly contrasts the notions and ideals at the foundation of our judicial set up, and upon further study of other cases, this contrast may appear more concrete. These findings feed into the debate on whether we truly want our court system to be independent, or perhaps more realistically, how great of an influence we want the public to hold.
1. United States Constitution. Article 3. Section 1. Clause 1.
2. The course of this paper begins with the AIDS epidemic of the 1980s and runs through the Obergefell v. Hodges decision in 2015. Although the gay rights movement truly began in the 1950s, I choose to start my paper with the AIDS epidemic because there are no major Court decisions addressing the gay rights issue prior to Bowers v. Hardwick in 1986. Since the point of my paper is to examine the influence of the movement on the relevant case law, I felt it unnecessary to stretch so far back into the movement.
7. Kristina Lindgren, 1985, "AIDS Screening has been in Force 2 Years, Red Cross Says," Los Angeles Times (1923-Current File), Aug 13, 1-oc_a4.
9. Andrew M. Jacobs, "The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991," Nebraska Law Review 72, no. 3 (1993).
13. Ibid. 731.
15. Bowers v. Hardwick, United States Supreme Court, No. 85-140, (June 30, 1986).
17. Bowers v. Hardwick, United States Supreme Court, No. 85-140, (June 30, 1986).
22. Ibid. 70.
25. Ibid. 736.
32. Romer v. Evans, United States Supreme Court, No. 94-1039, (May 20, 1996).
35. John Wilkens, "What's behind gay rights attitude shift?" The San Diego Tribune, April 4, 2015.
39. Jacobs, Law and the Gay Rights Story, 88.
41. Ibid. 89.
46. Lawrence v. Texas, United States Supreme Court, No. 02-102, (June 26, 2003).
54. Simon Hall, "Americanism, Un-Americanism, and the Gay Rights Movement," Journal of American Studies 47, no. 4 (November 2013).
55. Ibid. 1119.
56. Ibid. 1121.
Per design of the Constitution, the Supreme Court is the government body furthest removed from the people. Justices are not elected, but appointed by the President, with lifetime terms under “good Behaviour.” Highly insulated from societal and political pressures, the Supreme Court should be free to make independent decisions, but the court system is not independent at all—it responds to new developments in social activism and public opinion. A telling example of this argument is the history of gay rights advocacy in the United States.
In just over sixty years, the LGBTQ+ community has achieved an amazing feat: transforming their group from one that had been ostracized by all of public life into one that successfully lobbied for the right to marry. In tracing the history of the gay rights movement, I noted the development of the rhetoric and modes of advocacy to be the main factors in the movement’s relatively speedy success. Examining the major court cases that deal with gay rights, I have found the presence of “advocacy rhetoric,” and find that each case’s decision reflects the relative strength and essence of the movement at that time. I thus conclude that the rhetoric and growth of the gay rights movement have directly and significantly influenced relevant case law, perhaps proving that the legal system is, in fact, quite impressionable.*
A STRONG OPPOSITION: FEAR OF AIDS AND THE DEVELOPMENT OF SCOURGE RHETORIC
When AIDS struck the United States in the 1980s, it sent society into a frenzy of panic and fear. After recording the first case in 1981, the CDC recorded 593 cases in the following year, 243 of which resulted in death (a 41% fatality rate). In what seemed like no time at all, an extremely dangerous, unfamiliar disease had begun ravaging the United States, and health officials had no information on how to best the epidemic. The only certain piece of knowledge the CDC had was that homosexual men comprised approximately 75% of all cases. As the number of cases grew and the fatality rate continued to climb, that one statistic remained; homosexuals, by far and away, were at the highest risk of contracting and spreading the disease. And once health officials understood that AIDS could be spread through the blood supply—as in the case of the 20-month old infant—the panic surged.
When the public latched onto that panic, it resulted in ostracism of and discrimination toward homosexuals. In everyday contexts, for example, real estate agents were forced to disclose information about past residents who contracted AIDS, gay bartenders with AIDS were “demoted,” bank tellers were forced to work in a dark, back-room vault; there seemed to be no happy ending in sight for the homosexual population. On top of these day-to-day public affairs, some congressional officials were campaigning for a federal blood ban on gay men. Although this mission was outwardly to “‘protect the nation’s blood supply,’” these campaigns not only targeted gay men as “potential carriers of AIDS,” but also as child molesters. Seizing an opportunity, the gay rights opposition grabbed ahold of this panic and used it to reinforce the strength of their movement.
Anti-gay activists developed scourge rhetoric to advance the stereotypes and public fears about homosexuals, proving temporarily detrimental to the cause. Scourge rhetoric used “moral (Biblical), medical and other debasing images to assert the intrinsic evil of gays and lesbians.” This rhetoric is perhaps most clearly presented in activist Anita Bryant’s anti-gay surge in Miami, Florida. Asserting that such an “abomination” as homosexuality can only be explained as “Satan on the move,” her powerful religious appeal struck a moral cord with much of the local, and national, population. And what sent that moral tone into overdrive was its direction at gays’ relation to children. According to anti-gay activists like Bryant, gay men would “molest or ‘recruit’ children into the gay lifestyle,” thus depicting homosexuality as a “moral disease” that would plague the population if action was not taken to stop it from spreading. Bryant’s use of such a “powerful visceral weapon” coupled the gay “rights claim…with images of child molestation, jamming the cognitive message of antidiscrimination with an image that induces revulsion.” In attempting to counter this kind of rhetoric and such powerful anti-gay stereotypes, gay rights activists were forced to use an affirmational tone. Yet trying to establish homosexuality as a “good thing” polarized the discourse, with the opposition’s stance much easier to argue due to its support from most of the public. And soon enough, the moral rhetoric and harmful gay stereotypes made their way to the courtroom.
Bowers v. Hardwick, the first major Supreme Court case of this analysis, is an exemplary reflection of the scourge rhetoric used by the opposition. In this case, the court decided that the right to practice sodomy among homosexuals was not a fundamental right, and concurred that the Court would come close to “illegitimacy” if it enforced a new fundamental right that had no basis in the “language of the Constitution” or American society as a whole. In detailing his reasoning, Justice White noted that “proscriptions against [homosexual sodomy] have ancient roots,” and thus the notion that it should be protected under the Constitution is absurd. In addition, Justice White asserted that, in accordance with precedent, there is “no connection between family, marriage, or procreation…and homosexual sodomy.” Family, marriage, and procreation are three of the moral pillars that hold up American society, and are all viewed as essential components to a healthy lifestyle; since gay people are not associated, per ruling of this case, with any of those practices, homosexuality can be seen as fundamentally immoral. Perhaps an even clearer depiction of the moral and scourge rhetoric pursued by the gay rights opposition comes in Chief Justice Burger’s concurring opinion. Short and concise, the opinion presented a brief history of the proscriptions against homosexual sodomy. For example, Burger said that “homosexual conduct ha[s] been subject to state intervention throughout the history of Western civilization,” and that the “condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.” In conclusion, he claimed that establishing homosexual sodomy as a fundamental right “would be to cast aside millennia of moral teaching.” Directly tying the case to religious history and an established moral code makes clear that the decision of the Court in this case was truly rooted in the notion that homosexuality is, and ought to be, inherently immoral.
FIGHTING BACK: VICTIM RHETORIC AND THE IDEA OF TOLERANCE IN A POST-BOWERS AMERICA
Bowers spurred an impassioned and infuriated response from the gay community, facilitating the rise of homosexuals as victims. Several months following the decision saw the formation of new AIDS activist groups, leading protests across cities nationwide. After achieving almost immediate and substantial grassroots support, the AIDS Coalition to Unleash Power (ACT UP) helped raise substantial funds for AIDS research, and advanced the speed with which the FDA tested and implemented experimental drugs. The success of ACT UP and its peer organizations lay in their approach to advocac—constructing homosexuals as victims. ACT UP, for example, attempted to “force everyone to recognize the AIDS crisis for what it was, a holocaust…[or] genocide…and respond with the kind of urgency that a holocaust deserved.” Such a strong, forceful accusation brought to light the painful repercussions of government inaction on the homosexual community. Joining in with the AIDS activists, other gay rights groups coined the term “gay-bashing” to bring to light hate crimes and prevalent violence against the gay population in America. By putting pressure on the government, it forced officials to compile information about this “new” societal development; this information served to buttress the gay rights cause by giving it concrete, quantitative data to stand behind. Together, these examples of victim rhetoric in action served to shift the rhetorical polarization that developed prior to Bowers. It brought about the concept of negative rights: the idea that the government does not necessarily have to afford new rights to homosexuals, it simply has to protect them from violence and harm. Through the pursuit of negative rights, the “new opposition of protection/no protection would be characterized by more political and social policy appeals, and less overt moralizing and normative rhetoric.” In other words, gay rights activists were not trying to assert homosexuality as good during this period – they were simply saying that gay people should be protected, which was much easier to justify.
Baehr v. Lewin is a model for how this idea of protection/no protection culminated in a manner advantageous to the gay population. In Baehr, the Hawaiian Supreme Court concurred that the right of same-sex couples to marry was not fundamental. However, they did render that the couple bringing suit could and should press its claim that the action violated the equal protection clause. In reaching this conclusion, the Court accounted that the refusal of a marriage license “deprives [gay people] of the multiplicity of rights and benefits that are contingent upon that status.” Because marriage is a basic civil right, and the state had regulated the dispersion of marriage licenses based on sex, the court claimed that such an example of discrimination required heightened scrutiny. What bears recognition in this case is that the Hawaii Supreme Court did not try to afford homosexuals any rights; it made that clear in its assertion that the right to same-sex marriage is not fundamental. However, the court did take the approach of protecting same-sex couples from existing discrimination and harm. In other words, it pressed forward the idea of negative rights as established by the victim rhetoric of the post-Bowers gay rights activists, and this was not the only case to try that approach.
Romer v. Evans is another clear indicator of the successful penetration of victim rhetoric through American society. Romer concerned the adoption of Amendment 2 in Colorado, which, if implemented, would essentially prevent states from instituting anti-discrimination statutes to protect homosexuals. However, the Supreme Court declared the amendment unconstitutional under the Equal Protection Clause. According to the Court, Amendment 2 takes away “specific legal protection from the injuries caused by discrimination,” and thus “imposes a special disability upon [homosexuals] alone.” Such reasoning clearly illustrates the gay population as suffering under the hands of an oppressor. Placing a peculiar, unfair, and grueling burden on homosexuals is unfair and unjust, which is why the Court called for protection against such harm. Once again, negative rights and the rhetoric of gay people as victims inserts itself in United States legal doctrine.
A CHANGING TIDE: SOCIETAL DEVELOPMENTS AND THE EXPLOSION OF ADVOCACY GROUPS IN THE 1990s
Enveloping these two decisions were important changes in the public’s perception of the gay community; one important piece of this change was the media. Studies have shown that the media increasing its coverage of homosexuals allowed for many young gay people to feel comfortable outing themselves; as a result, the 1990s saw the number of people who knew a gay person double. With an increased visibility of the homosexual population in society comes an increase in “‘interpersonal contact,’” which is a vital part of the attitude trends. In addition, entertainment media has played a crucial role in shaping public attitudes. Some of the 1990s’ biggest television shows – like “Seinfeld” and “Roseanne” – featured gay characters, exposing millions of Americans to homosexuality that defied stereotypes of immorality. This trend in entertainment media’s acceptance of homosexuality continued through the later 1990s, most notably when Ellen DeGeneres coming out during an episode of her show. After that came the premiere of “Will & Grace,” by which point “most controversy was muted.” Developments in the media’s portrayal of gay people thus helped change public attitudes about them.
The 1990s also saw the creation and expansion of thousands of gay rights organizations that successfully infiltrated society on every level. The Lambda Legal Defense and Education Fund proved the most successful litigating force behind the movement, transforming the way in which litigants pursued justice in the courts. Specifically, Lambda spent significant money and resources educating the population about same-sex marriage in an attempt to shift public opinion. In New Jersey, it started its education campaign a year before it sued. In the political arena, organizations like the Human Rights Campaign and the Victory Fund have developed a strong presence in their attempts to lobby congressmen on various gay rights issues, like AIDS research and hate crimes. For example, the Gay and Lesbian Alliance against Defamation (GLAAD) check the media to prevent incorrect and stereotypical depictions of the gay community. The Gay, Lesbian, and Straight Education Network (GLSEN) lobbies schools to create gay support groups. Parents, Families, and Friends of Lesbians and Gays (PFLAG) gives resources to parents struggling with their child’s sexuality, and provide support to young gay people across the nation. Pride at Work fights for the rights of gay workers. All of these organizations work to expand the rights of the gay population and provide support to those in the community. However, of perhaps equal importance were the “countless community and professional organizations ranging from gay bowling and softball teams, to local HIV-AIDS support groups.” These groups gave heterosexuals greater exposure to the homosexuals in everyday society, helping further the interpersonal contact essential in shifting public opinion.
THE DEVELOPMENTS TAKE HOLD: LAWRENCE, GOODRIDGE, AND THE EMERGENCE OF GREATER EQUALITY
In 2003, Lawrence v. Texas overturned the Bowers decision, reflecting the success of the media and advocacy developments of the 1990s. The case concerned two men at home engaging in an act of private intimacy when policemen came, because of a noise complaint, and arrested them. In this groundbreaking decision, the Court ruled that criminalizing homosexual sodomy violated the Due Process Clause of the Constitution. The Court based this ruling on the right to privacy, labeling physical intimacy as the “most private human conduct,” and—being at the home—in “the most private of places.” In the decision, the Court articulates the right of homosexuals to choose whether or not they engage in such conduct, and they should not be punished for making that choice. An important piece of evidence the Court cites is that many states had repealed their anti-sodomy laws; people were beginning to realize that such private actions should be constituted as “a form of ‘liberty’ protected by due process.” In referring to the developing trend of decriminalizing homosexual sodomy, the Court touches on the changing public attitude toward homosexuals. Lawrence speaks to the increased integration of the gay population into everyday life, and through this act of normalizing homosexual conduct, it pushes forward the idea of equality that the media and advocacy in the 1990s helped to establish.
In the same year, Massachusetts became the first state to officially legalize gay marriage through Goodridge v. Department of Public Health, extending a greater level of protection to homosexuals than ever before. Goodridge establishes the case as involving a potential violation of the equal protection and due process clauses of the Massachusetts Constitution, both of which it decides are violated by the prohibition of marriage for same-sex couples. In the fashion of the Baehr case, Goodridge begins by explaining the importance of marriage in society, and the immense benefits civil marriages provide. It also does not necessarily claim that same-sex marriage is a fundamental right. It does, however, declare that the prohibition of same-sex marriage “works a deep and scarring hardship on a very real segment of the community for no rational reason;” according to the court, the ban is rooted instead in “persistent prejudices.” In the largest victory for the gay community at the time, this case approaches the lens of same-sex marriage through the victim rhetoric carried over from the 1990s. However, the case goes a step further and actively grants a right to same-sex couples that they did not have prior, transitioning the victimization to a motion for greater equality. With public opinion swaying and the increased recognition of homosexuals as not inherently immoral, gay rights activists continued their demand for equality.
ONWARD: THE RETURN OF APPEALS TO AMERICANISM AND THE LEGALIZATION OF GAY MARRIAGE
Throughout the 2000s, gay rights advocates made an avid push for marriage equality by making an appeal to Americanism. Activists have used popular slogans that stem directly from the foundational documents of the United States like “‘We The People – that means all of us’ and ‘Does it say: All men are created equal – except for homos?’” to advance the cause publicly. In testimonials before Congress, advocate Jane A. Leyland explained that “the ‘truly wonderful experience of being able to marry a person of one’s choice…is a basic human right which all people should have and which is certainly on par with the unalienable Rights…[to] Life, Liberty, and the Pursuit of Happiness’…for which governments are instituted to secure.” In seeking to make known the injustices of the American government, gay rights activists used the founding words of America as evidence of the government’s wrongdoing—an appeal rather difficult to counter with public opinion swinging in the favor of the gay rights. After claiming that denying homosexuals the right to marry violates basic American principles, activists went one step further; they extended the argument to say that those who oppose same-sex marriage are un-American. After Maine voted to overturn its gay marriage law, GLAAD president vocalized his opposition in saying, “it’s wrong to take basic rights and protections away…from [those] who just want the same opportunity to care for their loved ones and families. It’s wrong, unfair, and frankly, un-American.” Even a conservative advocate in favor of gay rights wrote a letter to Congress explaining that “‘people may always have a difference of opinion…[but] championing a position that wants to treat people unequally isn’t just un-Republican. At its fundamental core, it’s un-American.” By dragging those who opposed gay marriage under the spotlight of un-Americanism, activists branded the opposition with the worst label anyone in this country could have—especially politicians. And in just a few short years, the Court would see the merit to these claims of Americanism and un-Americanism.
In 2015, Obergefell v. Hodges marked a stunning achievement for the gay community and the culmination of their appeals to fundamental America: the legalization of same-sex marriage. In Obergefell, a group of same-sex couples from across the nation came together to sue for marriage equality on the grounds of the Fourteenth Amendment, and succeeded; the Court declared same-sex marriage a fundamental right. In discussing the Due Process Clause of the Fourteenth Amendment, the Court stated that the “liberties” the language refers to “extend to certain personal choices central to individual dignity and autonomy.” They extend this further to articulate that “the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” In conclusion, the Court claims that not only do the restrictions burden the homosexual population, but “they abridge central precepts of equality” fundamental to American society and culture. In granting homosexuals a new fundamental right, the Court appeals to the notion of unalienable rights this country was founded upon. The Obergefell decision roots itself in the protection of liberty, perhaps the most fundamental concept to American society. Echoing the gay rights activists of the decade, to deny this form of equality to a specific group is, by definition, inherently unjust in direct opposition to what being an American truly means. Gay rights advocates have achieved the unimaginable, and will undoubtedly continue to change the American landscape in years to come.
In thoroughly examining the language of the major gay rights cases in context of the overarching gay rights movement, I have come across the blatant connection between society and the legal system. This particular case study adds to the ongoing discussion about how law should operate, and provides an example of how society can positively influence legal doctrine. Indeed, it seems logical that law should be responsive to public opinion and desire; a Supreme Court certainly should not hold society back decades in social time. Nevertheless, not everyone agrees with this notion that the Constitution should act as a “living” document. Inherently, the idea of an actively interpreted Constitution would fall under the camp of those who support the societal influence on the legal system, and vice versa. If this case study proves anything, it is that a so-called “dead” Constitution may be a thing of the past. Society has the capacity to affect great change in the legal system, and once people become more cognizant of that, their influence will only continue to grow.
 United States Constitution. Article 3. Section 1. Clause 1.
 The course of this paper begins with the AIDS epidemic of the 1980s and runs through the Obergefell v. Hodges decision in 2015. Although the gay rights movement truly began in the 1950s, I choose to start my paper with the AIDS epidemic because there are no major Court decisions addressing the gay rights issue prior to Bowers v. Hardwick in 1986. Since the point of my paper is to examine the influence of the movement on the relevant case law, I felt it unnecessary to stretch so far back into the movement.
 United States of America. Centers for Disease Control & Prevention. Morbidity and Mortality Weekly Report. “Current Trends Update on Acquired Immune Deficiency Syndrome (AIDS) – United States.” September 24, 1982.
 Stephanie Saul Newsday Health, Policy Writer. 1985. "San Francisco: A City Obsessed.” Newsday (1940-1988), Aug 04, 27.
 Kristina Lindgren, 1985, "AIDS Screening has been in Force 2 Years, Red Cross Says," Los Angeles Times (1923-Current File), Aug 13, 1-oc_a4.
 Andrew M. Jacobs, "The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991," Nebraska Law Review 72, no. 3 (1993).
 Jacobs, “The Rhetorical Construction of Rights,” 730.
 Ibid. 731.
 Bowers v. Hardwick, United States Supreme Court, No. 85-140, (June 30, 1986).
 Walter Frank, Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy, New Brunswick, NJ: Rutgers University Press.
 Ibid. 71.
 Ibid. 70.
 Jacobs, “The Rhetorical Construction of Rights,” 735.
 Ibid. 736.
 Baehr v. Lewin, Hawai’i Supreme Court, (May 5, 1993).
 Romer v. Evans, United States Supreme Court, No. 94-1039, (May 20, 1996).
 John Wilkens, "What's behind gay rights attitude shift?" The San Diego Tribune, April 4, 2015.
 Jacobs, Law and the Gay Rights Story, 88.
 Ibid. 89.
 Lawrence v. Texas, United States Supreme Court, No. 02-102, (June 26, 2003).
 Goodridge v. Department of Public Health, Supreme Judicial Court of Massachusetts, (November 18, 2003).
 Simon Hall, "Americanism, Un-Americanism, and the Gay Rights Movement," Journal of American Studies 47, no. 4 (November 2013).
 Ibid. 1119.
 Ibid. 1121.
 Obergefell v. Hodges, United States Supreme Court, No. 14-556, (June 26, 2015).
3. United States of America. Centers for Disease Control & Prevention. Morbidity and Mortality Weekly Report. “Current Trends Update on Acquired Immune Deficiency Syndrome (AIDS) – United States.” September 24, 1982.
6. Stephanie Saul Newsday Health, Policy Writer. 1985. "San Francisco: A City Obsessed.” Newsday (1940-1988), Aug 04, 27.
10. Jacobs, “The Rhetorical Construction of Rights,” 730.
20. Walter Frank, Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy, New Brunswick, NJ: Rutgers University Press.
21. Ibid. 71.
23. Jacobs, “The Rhetorical Construction of Rights,” 735.
28. Baehr v. Lewin, Hawai’i Supreme Court, (May 5, 1993).
51. Goodridge v. Department of Public Health, Supreme Judicial Court of Massachusetts, (November 18, 2003).
58. Obergefell v. Hodges, United States Supreme Court, No. 14-556, (June 26, 2015).