A. Calls to Robust Neutrality

The first "thick" strategy is to concentrate on specific individual rights in order to emphasize the viability and significance of the public/private split in law and to insist that government remain maximally neutral regarding private individual choices. The relevant constitutional theories are freedom of speech, the right to privacy, freedom of association and freedom of religion.

1. Freedom of Speech

Free speech arguments hold considerable appeal to many advocates of gay and lesbian rights, because transporting expression that bespeaks same-sex orientation from the realm of the obscene to the realm of the political may be critical to developing positive public gay and lesbian identities. Moreover, protecting expression about homo-sexuality may pry open restrictions on gay conduct, insofar as the awkwardness of allowing a person to speak about being gay, but forbidding her to act on it, may eventually produce a wider appreciation of the incoherence and harmfulness of the restrictions on conduct.

Freedom of expression doctrine also effectively isolates the "offense-to-our-sensibilities" objection that underlies many anti-gay measures in a constitutional setting that flatly rejects "mere offense" as a reason for official censure. The Constitution requires that we "avert our eyes"¹ rather than regulate speech that offends us. Consequently, free speech vocabulary and its liberal assumptions about government’s obligation to remain neutral towards contested points of view is, in some respects, a quite good legal shelter for gay men and lesbians.

Moreover, free speech arguments ring libertarian bells. The arguments thus mesh nicely with theories of gay rights that are premised on privacy, on freedom of religion, and on freedom of association. All of these arguments downplay the role of the state in enforcing a particular set of morals. All underscore the right of the individual to dissent from community standards. All place a thumb on the Hart side of the Hart/Devlin constitutional scale. All breathe Millian life into the Bill of Rights.

The weighty First Amendment presumption against regulating even heretics’ and lunatics’ decisions to speak their minds also avoids problematic assumptions about a group of individuals with shared characteristics. The right is to be left alone to define and express oneself, thereby avoiding the essentialist morass of defining gay and lesbian identities.

Despite these attractions, however, freedom of expression arguments for gay rights suffer from serious limitations. Both the robust neutrality strategy in general, and the freedom of speech strategy in particular, imply that the differences between heterosexuals and nonheterosexuals are not legally significant, without confronting or explaining why they are not. Another significant problem is that the strongest free speech rights exist on the so-called street corner-the metaphoric remnant of a simpler speech era-but lose considerable force in the workplace, the school yard, the military, or other quasi-public or nonpublic grounds. Moreover, freedom of expression claims have often been unsuccessful when specifically applied to speech that discloses one’s self-described sexual identity.² As long as the conduct of which the speaker speaks remains unlawful somewhere, some courts treat the speech as evidence of a propensity to break the law. Freedom of sexual expression does not include freedom to engage in sexual conduct.

In any event, there is something unsatisfying, even distasteful, in recasting all same-sex conduct as political speech or expressive conduct in a First Amendment sense. Such a move ironically reinforces the pernicious ways in which society tends to treat openness about homosexuality as necessarily political or as an attention-getting antic. For some advocates, the point of pursuing gay rights is to undermine this popular tendency to treat out gay and lesbian people as spectacles or explicitly political actors.

Finally, and obviously, the free speech approach ignores a wide range of private conduct that has no plausible expressive qualities in any First Amendment sense, and that is considered an inextricable part of a fully lived life. As an all encompassing metaphor or a complete theory of constitutional rights for gays, lesbians, and bisexuals, freedom of expression falls far short.

2. Privacy

Privacy claims hold greater appeal to some advocates, but face the mammoth obstacle of Bowers v. Hardwick,³ which upheld the Georgia sodomy law and which has often been interpreted not only as the death knell of substantive due process for gay men and lesbians, but also as the final bullet in substantive due process for anyone seeking rights that lie beyond the Court’s (narrowly construed) existing precedents. Moreover, exclusive reliance on privacy as a basis for gay rights produces spatial issues that mirror those encountered under free speech theory. Privacy principles may prevent the state from intruding into the bedroom of gay and lesbian couples-a desirable outcome, to be sure-but they do little to protect the couples when they leave the bedroom to go shopping, to work, or to go out for dinner. "Privacy", as many commentators already have observed, does not capture the sense in which these couples wish to be "left alone" in public places, just as "free speech" does not capture the sense in which they might wish to express themselves in private places.

Nor does it help to insist that what privacy does, or should, protect, are "decisions about whether or not to enter into a particular familial relationship,"⁴ or the right to freedom from the standardizing force of government,⁵ or even the right to sexual freedom. None of these expansive "rights" has been held to be the authoritative interpretation of the amorphous privacy mandate. On the contrary, decisions about whether to enter a particular familial relationship clearly are not beyond all state regulatory power, as Mormons who wish to enter into bigamous marriages know. Likewise, there exists no settled right to avoid any and all standardizing forces of government.

A right to "sexual autonomy" likewise seems doomed. As Mary Anne Case recently stated, "the closer the issue gets to the gay couple copulating, the more problematic it is for courts and legislators."⁶ The wiser legal strategy would disaggregate sex and homosexuality instead of emphasizing their interdependence. Oddly, however, this means that gay advocates must argue for the "right to be left alone" to do unmentionables. To avoid mentioning the unmentionables may reinforce old constructions of homosexuality as taboo and sin, and subtly undermine the argument that the Constitution protects this sort of conduct.

Advocates who rephrase the issue as the right to love, versus a right of sexual freedom, may be closer to the mark. But these arguments stray from the privacy anchor and are more properly viewed as claims to a right of intimate association, perhaps under the First Amendment. In any event, an abstract "right to love" probably will not receive a more favorable reception than the proposed right to sexual privacy advanced in Hardwick. Indeed, any explicitly sexual rights-based argument likely will lose, as long as the Court views same-sex sexual conduct as "more like incest" than any other analogical contender.

3. Freedom of Association

Problems also exist with the right of association approach. In particular, a robust freedom of association principle might afford greater freedom to gay men and lesbians to choose their companions, but it also would mean greater freedom for others to choose not to associate with gay men and lesbians. Unless advocates aim for an asymmetrical version of freedom of association, or one that is zoned in a manner similar to that of freedom of expression, this strategy may be the riskiest one of all. The freedom to choose one’s companions typically works both ways.

4. Freedom of Religion

Some commentators argue that freedom of religion prevents government from imposing any particular viewpoint regarding homosexuality on all citizens. Bans on homosexual conduct, they argue, violate both antiestablishment and free exercise principles. This expansive reading of religious autonomy, however, is simply too open-ended for the current, judicially conservative Court. Although religion-based arguments against laws that prohibit homosexual sodomy or that otherwise condemn same-sex intimacy may tease out the sectarian nature of some objections to homosexuality, laws against homosexuality are not grounded solely in religious beliefs. Laws that merely coincide with sectarian beliefs-assuming courts can distinguish sectarian from secular beliefs or even isolate which beliefs animated a particular statute-are not, for that reason alone, unconstitutional. If homosexuality is treated like incest or other sexual taboos, then religious opposition to homosexuality merely offers further proof that it is offensive or harmful behavior; religion is not the only basis for such views.

B. Calls to Equality

Calls for equality are the second strand of the thick argument for gay rights, and demand that all groups receive the same treatment, where the differences among the groups are such that different treatment is unreasonable.

1. Suspect Class

Pursuing the equality theme, some advocates have argued that gays and lesbians, like African-Americans, suffer from past and present discrimination that makes it unlikely, perhaps impossible, to be heard in the political process. These advocates urge that gay men and lesbians thus should be treated as a "suspect class" under the Equal Protection Clause of the Fourteenth Amendment, which means that laws that exclude, neglect, or punish people on the basis of sexual orientation should trigger strict judicial scrutiny and must serve a compelling public purpose.

The central problem with this strategy, however, is that race discrimination and sexual orientation discrimination are not identical. To succeed, advocates thus must offer a very capacious interpretation of the Equal Protection Clause that embraces both race and sexual orientation claims. No strict constructionist or tightly historical approach to the Fourteenth Amendment will do.

Central to such calls to equality, moreover, are two highly problematic predicate claims: first, that the group members, however demarcated, are politically powerless; second, that these groups possess identifiable, distinctive, group-shared characteristics (no matter how many groups are posited). Both of these assumptions are controversial as applied to "nonheterosexuals," which contributes to the rather chilly judicial and political reception to arguments that gays constitute a "suspect class."

Knowing just what, if anything, to make of the distinctions between race and sexual orientation is difficult, given the Court’s refusal thus far to explain what determines "suspect class" status for equal protection purposes. One point, though, is quite clear: To the extent that any equal protection claim today invites the Court to read the Fourteenth Amendment expansively, the advocate must overcome the current Court’s strong resistance to such a reading, and the growing tendency to view any demand for equality as a demand for "special rights." Advocates who invoke suspect class status-the only available equal rights category with real bite-increasingly risk political and other backlash from being seen as selfishly pursuing "special rights" without regard for the common good, or as engaging in "identity politics," which many people criticize as a mostly self- indulgent preoccupation with personal identity.

An expansive interpretation of equal protection also presents a practical dilemma: How does the Court cabin the growing number of groups or identities claiming protection? The current Court is likely to simply deny legal protection to any and all new groups or identities on the theory that the politics of particularism may undermine doctrinal coherence and, more abstractly, subvert basic principles of liberalism, insofar as robust equal rights are thought to lead to invasion of the private sphere and individual autonomy.

2. Gender

The second equality-based argument against anti-gay policies is that such policies constitute gender discrimination. The doctrinal argument in support of this principle is deceptively simple: When one is barred from entering into a marriage with a same-sex partner who satisfies all other legal criteria of marriage eligibility, then one has been denied marriage license solely because of sex. This triggers intermediate scrutiny, under which the gender-specific rule must be substantially related to an important government purpose.

The theoretical arguments, however, are far more complex and problematic. Like the doctrinal approach, the theoretical view argues that formal rules against same-sex conduct and identity formation constitute facially gender- conscious rule-making that triggers elevated scrutiny. In addition, the theoretical view posits that bias against gay men and lesbians originates in society’s more general insistence that men and women inhabit separate gender-defined roles-roles that gay men and lesbians are perceived as defying. The importance of such defiance cannot be underestimated. As John Boswell has noted, "Deviance in sexual matters in cultures organized by sexually created relationships is much like heresy in theologically dominated societies or political dissent in politically organized communities."⁷ For these theorists, prevailing gender stereotypes are themselves suspect and harmful to all men and women, gay or heterosexual, who fail to comport with them.

Theorists account for this gender stereotyping phenomenon by pointing to a cultural bias in favor of males and, more broadly, heterosexuality. Thus, the cultural masculinization of lesbian women and the feminization of gay men drives the stigmatization of homosexuality. In other words, gay camp destabilizes gender by subverting traditional concepts of masculine and feminine, making many people uneasy, even violent in its presence. The legal backlash inspired by such discomfort is a form of sex discrimination.

Although it surely is hard to deny that "the stigmatization of the homosexual has something to do with the homosexual’s supposed deviance from traditional sex roles,"⁸ the claim that stigmatization has everything to do with such perceived deviance is less convincing. Indeed, if gender role deviance were the total explanation for homophobia, then there would be noticeably less discrimination against gay men and lesbians who do not deviate from traditional gender roles in their appearance or other visible respects. Yet it is not clear that two "masculine" men walking hand in hand will evoke no hostility, or even that they will evoke less hostility, than two "feminine" men doing so. Gender-based arguments also may boomerang on advocates in subtle ways, as Janet Halley has noted, "[T]o intimate that hetero/homosexual dynamics must originate in or ultimately produce, gender hierarchy gives analytic priority to heterosexuality, with its definitional dependence on the concept of male and female, of masculine and feminine, as matching opposites."⁹ Pursuit of the gender strategy thus has its own, potentially quite troublesome, double-bind.

The more convincing interpretation is that heterosexism is not a mere additive to, or byproduct of, gender discrim-ination. Rather, it is an independent concept that intersects in a complex, dynamic, and contextual manner with other social forces. Homosexuality threatens the current social organization not only as it is defined by sexually created relationships, but also as it is theologically constructed and perhaps to a lesser extent, as it is politically organized. Sexual deviance thus poses a triple threat to many widely accepted social norms. The homosexual is not merely a gender outlaw, but also a religious heretic and a political seditionist. Gender theory captures but one part of this complex construction of the sexual "deviant."

3. Political participation

The final group-centered argument in favor of gay rights is the political participation theory advanced before the Colorado Supreme Court in Evans v. Romer.¹⁰ The Colorado court concluded that any law that imposes special barriers to political participation by an identifiable group is subject to strict scrutiny because it infringes upon a fundamental right. Absent a compelling interest, such a law violates the Fourteenth Amendment.

Evans eventually reached the United States Supreme Court, which affirmed the Colorado Supreme Court but used a different rationale. The Court first rejected the state’s argument that the Amendment merely denied gay men and lesbians "special rights"; rather, it found that the Amendment "withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies."¹¹ To impose on gay men and lesbians the unique burden of securing a constitutional amendment as a precondition of restoring this protection, was to adopt an "overbroad and undifferentiated" measure that was "inexplicable by any reason but animus toward the class it affects" (Romer v. Evans, 1627). That is, the measure was irrational. In the Court’s words, "A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense."¹²

Romer suggests that one’s status as a citizen should not be imperiled by one’s status as a non-heterosexual, without more. It thus may create a logical fissure within American law that may threaten the most harmful heterosexist legal structures, including Hardwick: to declare homosexuals criminals because of conduct one equates with their identity on the one hand, but to award that identity certain legal protection on the other is contradictory. The position that gay people are per se proper subjects of criminal law and other discrimination therefore may become harder to maintain as a credible, public position, even though heterosexism may long remain a respected private position.

But Romer can also be read more narrowly, to invalidate only laws that sweep as widely and indiscriminately as did the Colorado proposed amendment. Where the state can link homosexual status or conduct to a specific, regulable harm, it may still condemn that status or conduct. This means that the next wave of decisions may force to the judicial light the following crucial issue:  "When does the status or conduct produce a specific, regulable harm?"

C. The Thin Doctrinal Case for Gay Rights

The thick response emphasizes the relevant rights on which some anti-gay legislation intrudes:  speech, privacy, association, religion, and equality. A "thin" approach to these doctrinal categories, would instead address head-on whether anti-gay discrimination is rational, à la Romer. The thick rights arguments would be an important backdrop to this thin attack insofar as they outline specific justifications that the government cannot invoke as a "rational basis" for anti-gay measures; but the primary doctrinal anchor would be rational basis alone.

This "thin" approach to gay rights thus may be a better strategy than the "thick" approach for two reasons:  it may avoid the definitional hurdle of defining homosexuality, and it would focus judicial attention directly on the most crucial issue, i.e., whether homosexuality in fact poses a sufficient peril to society that legislation against it is a rational exercise of government power.

The thin approach can invoke the growing body of scholarship that suggests that failures of reason give rise to most, perhaps all, discrimination against gay men and lesbians. For example, Judge Richard Posner castigates judges for their willful refusal to think critically and logically about sex.¹³ He argues in particular that courts have neglected the available social science data that shed light on these issues and that undermine many of the assumptions on which cases like Hardwick rest.

Judge Posner’s approach suggests that judges can be (and should be) persuaded to change their views on reg-ulation of sexuality if those views are not based on empirically sound assumptions. Specifically, anti-gay legislation may flunk the Court’s "rational basis" test, under which government acts may not be wholly arbitrary or irrational.

There are two limitations to the rational basis approach to gay rights, but both may be surmountable. The first is that the rational basis test has proved to be an extremely difficult one for government to fail. Case law places the considerable burden on the party attacking government action to prove there is no reasonable basis for the act, regardless of whether the reason concocted was the actual one relied upon by the government.

The second, more important limitation of the rational basis approach is that the bias against homosexuality is not easily reduced to the status of an irrational legislative reflex, given the long history of treating this prejudice as a sensible expression of cultural and religious values. To claim that this prejudice is irrational, one first must address or somehow evade the incredibly thorny issue of what, if anything, should count as a legitimate, rational public act independent of any express constitutional guidance. As Cass Sunstein has argued, to claim that discrimination on the basis of sexual orientation is irrational is "to make a moral argument about liberty and equality, one that opposes other moral arguments. The claim of irrationality seems modest, but it depends at bottom on relatively adventurous claims."¹⁴

Although these complexities are real, they do not doom the inquiry, or the rational basis strategy. Asserting baldly that the courts must defer to legislatures, given "widespread moral disapproval of same-sex relations" (Sunstein, 6), avoids the constitutional inquiry that judges have already made in numerous cases, and are obliged to undertake. Specifically, is the particular morality that the law happens to reflect constitutionally permissible, rational, and humane? As Andrew Koppelman has noted, "[T]he post-Civil War Southern Black Codes which, for example, made it a crime for a black to be insolent or disrespectful toward a white . . . undeniably rested on powerful moral convictions . . . The trouble was not with the fact that these laws legislated morality, but with the kind of morality that they legislated."¹⁵

The Court’s hands thus are not tied whenever morality is at stake; consequently, a claim of irrationality is justiciable, even if the Court’s most common response to it is deference to the democratic process. As such, a thin, rational basis argument, supplemented by the work of Judge Posner and others who attack the empirical bases of anti-gay legislation, may be an especially effective approach to advancing gay rights claims. These empirical arguments help to destabilize many of the dominant legal and moral theories about sex and sexuality. Although they do not necessarily assist in framing a new, authoritative account of sexuality to replace the old one, they do tend to show (and this is sufficient) that many of the arguments commonly advanced in support of official regulation against homosexuality are just too flimsy to support anti-gay regulation, much of which interferes with basic, essentially private, decisions such as whom to love and marry, with whom to have sexual relations, or which religious account of sexuality to embrace.

This approach would emphasize that our constitutional practices demonstrate that a Devlinesque assertion that the state may enforce the majority’s conception of morality, taken alone, does not justify any and all anti-gay legislation. Nor does the fact that homosexuals historically have been subject to discrimination and prejudice justify continued discrim-ination, because courts have acknowledged that "[n]ot all historical practices are good, and prejudices often persist."¹⁶

Courts therefore can and must analyze the claim that anti-gay laws have a rational, secular basis-the "it’s like incest" (and polygamy, and other disfavored conduct) argument reiterated-and must reconsider whether the Court in Hardwick was right not to second-guess the Georgia legislature’s judgment about criminalizing sodomy-the judicial restraint argument. Homosexuality may well be "like incest" to the extent that laws often reflect reigning moral intuitions that we do not tend to explore or seek to justify beyond bald assertions of disgust. But this analogy does not prove that the two subjects deserve identical legal treatment. Likewise, the abstract claims about neutrality, equality, or liberalism do not tell us what to do, ultimately or precisely, about homosexuality (or, for that matter, about any other question on the margins of what most people would regard as unreasonable official coercion of individual behavior). But the constitutional structure surely does tell us what questions are relevant to the rational basis inquiry. This structure betrays a powerful, uninterrupted tradition of respect for individual autonomy that compels courts to acknowledge empirical attacks on what has passed for public reason, even on issues of morality, and to be particularly skeptical of official coercion of behavior within the private sphere. Romer in particular offers recent and powerful evidence that the current Court continues to take seriously the tradition of monitoring the democratic process to protect against "irrational" or "biased" outcomes, despite principles of judicial restraint.

The liberal tradition that underlies the constitutional structure likewise requires that the judiciary consider carefully the work of Professor Janet Halley, who has teased out the subversive and irrational ways in which the Court has conflated sodomy and homosexuality, and confused "acts" and "identity." Halley has critiqued the Hardwick Court’s performance as historians by checking the primary sources to see if the Court’s historical account of the Georgia sodomy statute holds up. She proves that on its own terms, the Court’s "reasoning" fails.¹⁷

Halley likewise has scored the Court for giving as a "reason" for a facially neutral sodomy statute-one that could have been applied to heterosexual sodomites as well as homosexual ones-majority sentiments about the morality of homosexuality (Halley, 1769). In the following illustrative passage, Halley not only exposes a logical fallacy; she disrobes the Court deftly:

Heterosexual acts are prohibited by the Georgia sodomy statute and, notably, by virtually identical statutes in force when the Justices rendered their decision not only in Washington D.C., but also in Virginia and in Maryland, where presumably several of the majority Justices spent their most intimate hours. By reasoning that the Georgia statute plausibly supports an antihomosexual morality, the Justices engage in masking their own status as potential sodomites even if they never stray from the class of heterosexuals. Invisibility here is immunity (Halley, 1769-70).

Halley also has attacked the emerging scientific literature, on which many modern theorists rely in urging their various accounts of homosexuality. Hardwick was, says Halley, a "historiographical embarrassment" (Halley, 1752). She warns that the Court may now produce a scientific embarrassment should it draft an opinion that relies on the inconclusive studies regarding the biological roots of sexuality as a basis for granting or denying legal rights in this area. Indeed, Halley’s work also cautions advocates to avoid doctrinal arguments that require judges to define homo-sexuality, versus arguments that do not. For example, Halley’s work illustrates how the word "sodomy" has often been deployed as a misleading metonym for homosexuality (Halley, 1737). Sodomitical acts are performed by hetero-sexuals as well as homosexuals, and not at all by many people who fall under both categories. The definitional move in Hardwick (homosexuality = sodomy) thus was inaccurate as well as harmful.

These attacks on the definitional and empirical assumptions that drive the prohibition of same-sex relations, when advanced within a rational basis argument, best expose the relevant question: "What is wrong with homosexual conduct?" The thick constitutional framework demonstrates that if the judgment that homosexuality is "wrong" is a manifestation of mere hostility to a hated minority, or of a purely religious, theological, and sectarian belief, then the judgment cannot ground a constitutionally valid determination disadvantaging those who do not conform to it. The thick framework thus narrows the relevant legal question to an essentially factual one:  Does homosexual identity or conduct present a sufficient, verifiable, and not merely aesthetic (the "mere offense" insight of the First Amendment) peril to society, such that government can regulate against it, despite the harms such regulation obviously occasions for the citizens it affects? The thin approach then poses the factual question directly and forces the courts to answer it as objectively as possible.

The philosopher John Finnis has demonstrated un-common intellectual fortitude by tendering a response to this question, one that is far more thoughtful than most, including the Hardwick Court’s. In Finnis’ view, the basic flaw of homosexuality is that it bespeaks a view of our "sexual capacities, organs, and such acts as instruments for gratifying the individual >selves’ who have them. Such an acceptance is commonly . . . judged to be an active threat to the stability of existing and future marriages."¹⁸ He continues, however, that the state’s interest in preserving marriage may not justify laws that make "even secret and truly consensual adult acts of vice a punishable offense against the state’s laws." (Finnis, 1076) Rather, he would draw the line between public and private acts quite starkly, such that government could not regulate private consensual acts but could regulate or prohibit "the advertising or marketing of homosexual services, the maintenance of places of resort for homosexual activity, or the promotion of homosexual >lifestyles’ via education and public media of communication, or . . . homosexual >marriages’ or . . . the adoption of children by homosexually active people, and so forth" (Finnis, 1076).

Undraped, Finnis’ moral argument is empirical and thus can be countered by social science data. For example, the available empirical data should be examined to see if heterosexual institutions really would suffer if tolerance of homosexuality were widespread. Judge Posner has concluded, based on comparisons to countries that tolerate homosexuality far more than does the United States, that there is no evidence that decreasing social and legal opprobrium will increase the number of homosexuals (Posner, 298). As for its impact on heterosexual compan-ionate marriage, Judge Posner is less sure. He views the question as a difficult matter of balancing several costs and benefits, including the costs and benefits to gay men and women (Posner, 311-14), which Finnis simply ignores. Both Judge Posner and Finnis worry that the government’s issuance of marriage licenses to same-sex couples may send the "wrong message." But Judge Posner’s concern is not that this move "would cause heterosexuals to rethink their sexual preferences . . . [Rather,] [i]t is that permitting homosexual marriage would place government in the dishonest position of propagating a false picture of the reality of homosexuals’ lives, a reality he thinks will be grimmer than that of otherwise identical heterosexuals’, even in a tolerant society" (Posner, 307).

This exchange demonstrates the potential power of a reason-based approach to gay rights, and undermines the assumption that all moral questions are too complex to be handled by claims of irrationality. Judge Posner illustrates how a court might isolate and evaluate the implicit empirical claims on which the moral claims seem to depend. To be sure, it may be difficult for gay men, lesbians, and bisexuals to endure such clinical, cost/benefit arguments about whether their open, lawful presence in fact might undermine fundamental, widely respected social institutions. Yet these reason-based arguments, when combined with the social constructivist critiques of what passes for "reason," are the most promising ones currently available to gay advocates.

Of course, Finnis’ claim that nonprocreative sexual acts between homosexual people who are not in a committed relationship is "like masturbation," likely cannot be overcome by empirical evidence or reason alone. Reason may reveal that those who deploy this analogy must assume that "[h]omosexuals [cannot] have loving sex in a way that is open to goods beyond mere physical gratification";¹⁹ but it does not prescribe how to convince such people that comparable goods might be involved, or that homoeroticism goes beyond mere physical gratification. To prove this will also require narratives that illustrate both points in ways that engage both the reason and the emotions of judges.

Stephen Macedo has made this series of steps clear. He notes that "Finnis provides no evidence whatsoever to support his account of the nature of homosexual intimacy:  . . . Millions of homosexual lives and relationships are taken to be epitomized by a promiscuous, liberationist >gay lifestyle,’ which rejects all sexual restraints and value judgements. In the end, Finnis’ argument boils down to nothing more than this stereotype" (Macedo, 23). It therefore must be Finnis’ gut, some experiential knowledge, or the limbic part of his brain that has led him to his conclusions, for he has no other evidence to support this stereotypical, unromantic account of homosexual intimacy. To reveal and thus to begin to address this emotional reaction, however, one must first unravel the moral claims that cover the implicit empirical claims tucked away in Finnis’ theory.

If one uncovers an assumption of promiscuity that drives the Finnis stereotype of homosexual intimacy, and thus his argument for proscribing homosexual conduct, then one might counter with evidence showing that lesbians tend to have comparatively more stable relationships and have sex less frequently than heterosexual couples. Finnis then must decide whether he is willing to construct, as Macedo has pressed the point, a hierarchy of human relations, with lesbians at the top, followed by heterosexuals, and then gay men.

To pose this question likely is to answer it. We need not consult Finnis, nor attack the stereotype about gay men on which his argument is based, because such a hierarchy looks and feels ludicrous. In other words, the reason-based argument is more effective and emotionally compelling when it is complemented by a counter narrative that deploys parodic reversal and erects a sexual hierarchy in which lesbians would occupy the top berth.

Lawyers could profitably deploy a similar series of moves-reason-based attacks, enlivened by narratives that force judges to confront the illogic of and emotional attachment to their implicit narratives about sexual hierarchy and sexuality. Such moves may demonstrate to the modern Court both why and how Hardwick was wrong, and may be an especially effective approach to advancing gay constitutional rights.

Whatever doctrinal strategy they deploy, however, advocates confront, not elide, the nagging, critical issue- "What is wrong with homosexuality?" To respond to this question intelligently, advocates will need to muster the best social science data and social constructivist critiques of the existing rhetorical structures, as Judge Posner and Janet Halley, respectively have demonstrated. Finally, they must craft compelling counter narratives, parodies, and counter-metonyms, to help rescript judges’ emotional responses to homosexuality. The thin rights approach, offered against the backdrop of the thick constitutional account of what does not count as a rational basis, may be the cleanest, most direct means of accomplishing these ends.

Notes

1. Cohen v. California, 403 U.S. 15 (1971).

2. See, e.g., Steffan v. Perry, 41 F.3d 677, 690 (D.C. Cir. 1994) (noting that "the government’s presumption. . . is certainly rational given that the human sexual drive is enormously powerful and than an open declaration that one is a homosexual is a rather reliable indication as to the direction of one’s drive").

3. 478 U.S. 186 (1986).

4. William M. Hohengarten, "Note, Same-Sex Marriage and the Right of Privacy," Yale Law Journal 103 (1994), 1495, at 1525.

5. Jed Rubenfeld, "The Right of Privacy," Harvard Law Review 102 (1989), 737, at 739-40.

6. Mary Anne Case, "Couples and Coupling in the Public Sphere," Virginia Law Review 79 (1993), 1643, at 1682.

7. John Boswell, Christianity, Social Tolerance, and Homosexuality 33 (Chicago: University of Chicago Press, 1980).

8. Andrew Koppelman, "Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination," N.Y.U. Law Review 69 (1994), 197, at 234.

9. Janet E. Halley, "Reasoning About Sodomy," Virginia Law Review 79 (1993), 1721, at 1725.

10. Evans v. Romer, 854 P.2d 1270 (Colo. 1993). Hereafter >Evans’.

11. Romer v. Evans, 116 S.Ct. 1620, 1625 (1996). Hereafter >Romer’.

12. Id. at 1628 (emphasis added).

13. Richard A. Posner, Sex and Reason (Cambridge, MA: Harvard University Press, 1992).

14. Cass R. Sunstein, "Homosexuality and the Constitution," Indiana Law Journal 70 (1994), 5.

15. Koppelman, supra note 8, at 284 (emphasis added).

16. Stephen Macedo, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism (New York: Oxford University Press, 1990), 194.

17. Halley, supra note 9, at 1751-67.

18. John M. Finnis, "Law, Morality, and >Sexual Orientation’," Notre Dame Law Review 69 (1994), 1049, at 1070.

• From the Editor
• Introduction
  • Legal Aspects of Gay and Lesbian Rights, Richard Nunan
• Articles
  • Thick and Thin Arguments for Gay Constitutional Rights, Toni M. Massaro
  • Same-Sex Marriage and Sex Discrimination, David Benatar
  • Gays in the Military and the Excuse of Constitutional Deference, Richard Nunan
• Bibliography
• Recent Law Review Articles of Interest- Abstracts
• Symposia
• Recent Books of Interest