LAWS7805 · Law

The Courts and the LGBT+ Movement: A Critical Assessment

Boston College Law School

For much of the twentieth century, courts, led by the Supreme Court, moved in the direction of construing the First and Fourteenth Amendments so as to remove some of the barriers impeding women, people of color, First Nation people, poor people, queer people, people with disablities, immigrants and other disfavored groups (including certain religious groups) from participating more fully in the common life of our country. The pace was halting and grudging often hypocritical and there were setbacks; but it can be argued that there was some kind of rights-based liberal consensus to which most courts paid at least lip service. Partly as a result of the work of courts and lawyers, the world in which I teach this seminar at two prestigious law schools is is not the world I experienced as I grew up in, as an agonized queer kid. When I was sixteen, the love that I felt for other boys most definitely dared not speak its name. However, that same year an unsigned one-sentence ruling of the Supreme Court, in One,Inc. v. Oleson, 355 U. S. 371 (1958), unexpectedly opened the door to an epoch of social and judicial advances that can perhaps be said to have culminated in Obergefell v. Hodges, 576 U.S.644 (2015) and Bostock v. Clayton County, 590 U.S. 644 (2020). In our seminar, my colleague Chris Erchull and I will examine that period of expansion. We will invite you to take a critical look at the role of the courts and of the queer movement(s) in bringing about change and at the dominant culture that largely resisted it, seeking to clarify and critique the various strategies employed and interests at play. We will also address the ferocious backlash against full equality for queer people that is now in progress. The roots of the fear and hatred and persecution of queer persons is as old as patriarchy and is deeply rooted in misogyny, and we will explore that connection and its more recent iterations. We will trace the decades old campaign to keep women, queers and other marginalized minoritied in their place in the name of religion, free speech and free association. Groups like the Alliance Defending Freedom, Liberty Counsel and the Becket Fund for Religious Freedom, with multi-million dollar budgets that dwarf the financial resources of queer advocacy groups, are increasingly successful in persuading an ever more receptive Supreme Court to rewrite the First and Fourteenth Amendments in a way that gives a free pass to groups that claim moral or religious objections to equal treatment for everyone, including the most vulnerable. Two politically powerless groups are particularly in the cross-hairs -- transgender individuals and school kids. Chris Erchull and GLAD LAW are front and center of the struggle to protect these folks against what can only be described as the wanton cruelty of the move to deny their right simply to exist and be acknowledged for who they are. Chris's role as an active litigator will bring us his wide and deep knowledge of the current challenges and opportunities facing advocates for equality and will significantly enrich our reading of the cases and materials. There is no textbook for this seminar. Our syllabus will consist of cases and law review articles as well as other materials relevant to our discussions, including some of the cases that Chris is currently working on. A prior course in the First Amendment would be helpful but is not required.