ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 575-579.

RAINBOW RIGHTS: THE ROLE OF LAWYERS AND COURTS IN THE LESBIAN AND GAY CIVIL RIGHTS MOVEMENT by Patricia A. Cain. Boulder, Colorado: Westview Press, 2000. 316 pp. Cloth $30.00. ISBN: 0-8133-2618-4. Paper $24.00. ISBN: 0-8133-2617-6.

Reviewed by Rebecca Mae Salokar, Department of Political Science, Florida International University.

Ten years ago I decided to include a component on lesbian and gay rights law in an undergraduate course and the only workable text I could find was the Harvard Law Review's SEXUAL ORIENTATION AND THE LAW (1990). What a difference a decade makes. RAINBOW RIGHTS joins the growing list of recent
works that describe and analyze the role of law in advancing the rights of lesbian, gay, bisexual and transgendered peoples in the United States. This study is a valuable addition to the libraries of scholars interested in the evolution of lesbian and gay rights litigation as well as those doing research and teaching in the areas of civil rights and constitutional law, judicial federalism, privacy issues, and litigation as a mechanism for social change.

RAINBOW RIGHTS is a historical exploration of federal and state court decisions affecting gay rights in the United States from 1950 to 2000, written by Patricia A. Cain, professor of law at the University of Iowa. Recognizing that courts alone cannot effect full social change, Cain posits that litigation and legal activism are important both as tools in civil rights movements and for individuals who are affected by judicial outcomes whether those decisions are made by trial or appellate courts at the state or federal level. The author's membership on the board of directors for Lambda Legal Defense and Education Fund, the national organization that has sought justice for gays and lesbians, suggests that she knows well the limits and the potential of a national litigation strategy for rights and that she has sat at the table where decisions over when, where, and how to litigate for social justice have been made.

RAINBOW RIGHTS is ordered chronologically, but its several themes provide overlays to the book's organizational structure with the Supreme Court's decision in BOWERS v. HARDWICK (1986) serving as a referential midpoint. One theme that provides structure is the role of public versus private rights, a distinction that while not unique to the gay rights movement is certainly central to gay and lesbian issues in a significant way. Another theme involves comparing and contrasting gay rights litigation with the rights movements for racial and sexual equality. This comparative analysis is particularly rich early in the first chapter where Cain discusses
litigation by the earlier movements, and in her concluding thoughts with respect to the success of the sameness/difference arguments (like persons should be treated similarly by the law/the law ought to respect the uniqueness of individuals or groups). Finally, Cain also weaves into the text her analysis of legal principles that impact the rights of lesbians and gays like equal protection, due process, and fundamental freedoms.

Page 576 begins here

Chapter One provides an overview of the legal history for racial equality and women's rights. Because these earlier movements confronted decisions over making sameness/differences arguments and navigated between public and private rights, Cain argues that their experiences are instructive to subsequent movements. More important, however, court decisions spawned by the earlier movements have shaped the way in which rights arguments are made today in both positive as well as less promising ways. She looks closely at the doctrines of state action, suspect classifications, associational rights, and privacy and sexual intimacy issues as areas of law that have already been influenced by the women's and racial equality movements.

In Chapter Two, Cain engages in a cursory discussion of public interest lawyering and describes the organizations that crafted much of the legal strategy for the earlier movements, the Legal Defense Fund of the NAACP and the Women's Rights Project of the American Civil Liberties Union. The focal point of the chapter, however, is on the history of the organizations that have sponsored much of the litigation for gay rights, Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights and the ACLU. Despite a chapter title that includes "litigation strategies," Cain provides little insight to the lawyer's craft of deciding which cases will merit direct sponsorship or an amicus brief, the struggles that surely must occur between organizations working on similar agendas, the intellectual
brainstorming necessary to think through the next three litigation steps, or the organizational reaction when a case is filed with less-than-optimal fact patterns or prematurely by an "outside" party.

Gay rights and related claims litigated between 1950 and 1985 are the focus of the next three chapters. Using the private/public distinction to organize the various areas of litigation, Cain devotes a chapter each to public rights, private rights, and to cases that span the "public/private divide." The public rights chapter is a comprehensive review of some of the earliest gay rights cases. It includes a discussion of cases that are often overlooked by those who study gay law-cases that stemmed from incidents involving gay bars. Cain's parallels between the battle for racial equality and gay rights might unsettle some, but her appraisal that bars provided the political space for the lesbian and gay community much like the black churches did for the first rights movement is a fair assessment. And theconnections between the lunch counter sit-ins and the "sip-ins" in New York City during the mid-1960s suggest that rights movements learn from each other in all sorts of way. The public rights chapter is extensive and also includes cases on gay rights at universities and high schools, as well as an analysis of litigation in the area of employment rights.

The early private rights cases examined include those that involved sodomy, solicitation, lewd and lascivious conduct charges, and claims to family rights that have regularly been recognized by courts as privacy issues (child custody, parental termination and parental rights). Cain's focus on the importance of sodomy laws to the lesbian and gay community is enriched by her use of the private rights lens and it pushes the scholarly discussion beyond the difficult quagmires of morality and sex. The final chapter of this trilogy examines the intersection of private and public rights with respect to the gay relationship. Cases involving marriage laws, the public
policy implications that result when government fails to recognize

Page 577 begins here

the gay relationship, and the strategy of adult adoptions (used by gay couples to circumvent unfavorable inheritance laws) are the fodder of early private matters that found their way into the public realm.

A short chapter on the BOWERS case includes a discussion of the factual background and legal issues germane to the case. There is little new information here but the chapter is a segue to more contemporary gay rights cases and yet another sub-text to the study, Cain's assessment of the impact of the BOWERS decision on subsequent rulings. In parallel with the first half of the book, the next three chapters contain an analysis of public and private rights, and the intersection of private and public on relationship issues in BOWERS' shadow. Of special interest in the public rights chapter is Cain's discussion of the conduct versus status distinction and her
analysis of the Supreme Court's decision in ROMER v. EVANS (1996). The private rights chapter includes a comprehensive update on state sodomy statutes and the continuing battles in state courts over child custody disputes. Marriage and domestic partnership laws, especially the Hawaii and Vermont cases, are at the heart of the final substantive chapter that examines the intersection of private and public rights.

The conclusion to RAINBOW RIGHTS is valuable for its analysis of the future of the gay rights litigation agenda. Cain carefully dissects the successes and failures to achieve change through legal action, and maps out four obstacles that confront the movement. First, Cain argues that unlike their predecessors, the gay rights movement has not yet earned the basic respect of the American legal system. Consider that not even the "separate but equal" argument of PLESSY v. FERGUSON (1896) has been adopted as a minimum standard by the nation's courts for the treatment of gay persons in America. A second obstacle is the Supreme Court's resistance to enlarging the umbrella of suspect classifications using the equal protection clause. Cain suggests that activists should instead invoke arguments rooted in
fundamental rights, an area of law more likely to be successful with the current Court. Third, the unwillingness of the current Court to expand equal protection combined with its increasing recognition of state sovereignty in national-state disputes means that rights arguments may have to be made in state courts for the foreseeable future. Finally, Cain takes up the current anthem of the gay rights movement: the closet door must be opened even wider. Gay men and lesbians must "make the private more public" (p. 286) by sharing their humanity, their feelings and their relationships broadly because in the end the law and legal decisions find their way into the public space. Positive social change cannot take place in courts alone; the court of public opinion must also be persuaded.

RAINBOW RIGHTS is like a hearty stew served at the end of a winter day--a pot full of meat and vegetables that produce a rich flavor together, but with nuggets that you can pull out and chew on for a time. The book is clearly the result of many years of data collection, scholarly discussion and endless hours of organizational torment. How does one tell the story of gay rights litigation in a way that makes sense thematically and yet reaches beyond the legal audience? Cain's efforts are commendable. RAINBOW RIGHTS is a robust and comprehensive text. Its value, even for those versed in gay rights litigation, is the orderly lens that Cain brings to the cases, the legal arguments and the public-private intersections of law in gay rights. The narrative style enlivens the cases and

Page 578 begins here

makes it accessible to an educated and interested audience beyond the legal profession. It would easily work in an advanced undergraduate constitutional law course or a class that focuses on gay and lesbian politics.

RAINBOW RIGHTS does leave the law and politics scholar wishing for more-and for less. First, Professor Cain's desire to reach that broader audience, her comprehensive review of gay rights cases and the several substantive themes that course the text dilutes the impact of this work. Is this a book about the history of gay rights litigation or a book about the effect of BOWERS on gay rights? Or should RAINBOW RIGHTS be seen as a comparative analysis of interest group litigation, tactics and strategies? Alternatively, one might also pick the book up for its focus on public and private rights or for its analysis of civil rights law or judicial
federalism. By attempting to weave in so many themes, the book loses some of the force it might have had as a more focused work. That is not to say that these themes are unworthy of exploration; each is important to our understanding of gay rights litigation but for somewhat different reasons. I suspect that the author's engagement with the subject is so rich that it was difficult to leave any stone unturned. Ultimately, there is material for two or three hard-hitting works imbedded between the covers of RAINBOW RIGHTS. It was an art of scholarship to weave them together in one text.

The effort to produce a comprehensive work on gay rights litigation means, however, that some themes are not fully developed. As noted earlier, the most significant disappointment is with the chapter on public interest lawyering and interest group litigation. The comparison between the movement for racial equality and gay rights also begs for attention. Gay rights activists readily use the comparison and it is one that has merited public attention and in some cases, public scorn. But few have examined the assumptions underlying this enterprise-how is sexual orientation alike and different from race when it comes to legal, political or social matters. Cain makes some efforts to move in this direction in her conclusion, but the assumption of sameness-similar movements seeking similar rights-has already been made. We need to think more deeply about the comparison with the race and gender movements, the political and legal value of the comparison, and the limits such a framework unwittingly imposes on our opportunities for the advancement of social justice.

RAINBOW RIGHTS is a substantial piece of scholarship that belongs in the libraries of those who are interested in civil rights. Cain's professional and personal investment in rights-work brings a valuable perspective to the text. As she explains, "I am looking for legal arguments that are transformative, that can bring us to that place over the rainbow where even bluebirds fly, and I am not the least bit interested in legal arguments that are not capable, in the end, of bringing us all there-black,
white, brown, every color, male, female, able-bodied or not, rich or poor, English-speaking or not, gay, nongay, bisexual, and transgendered" (p. 3). While the end of that rainbow has not yet been found in the courtrooms or legislatures of the states or national government, RAINBOW RIGHTS might just spark the scholarly imagination of someone who can move us, as a nation, just a bit further along to the pot of gold (read "equality and justice for all") promised by the U. S. Constitution.

Page 579 begins here

REFERENCES:

BOWERS v. HARDWICK 478 U.S. 186 (1986).

Harvard Law Review. 1990. SEXUAL ORIENTATION AND THE LAW. Cambridge, MA.: Harvard University Press.

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

ROMER v. EVANS, 517 U.S. 620 (1996).

****************************************************************

Copyright 2001 by the author, Rebecca Mae Salokar.