Gay Gentrification: Whitewashed Fictions of LGBT Privilege and the New Interest-Convergence Dilemma

Publication Title

Law & Inequality

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Publication Date

Winter 2012


In 1986, in the midst of a rapidly spreading HIV/AIDS epidemic, the United States Supreme Court narrowly held there was no constitutional right to engage in same-sex sodomy. A mere ten years later, the Court made a sharp departure from its earlier posture towards sexual minorities. In Romer v. Evans, the Court struck down a state constitutional amendment that established a wholesale prohibition of pro-sexual minority rights *118 legislation on the state and local level. The Romer Court effectively ruled that a class of citizens distinguishable by their constitutionally unprotected and often criminalized conduct had a right to be free of invidious government discrimination. For lawyers, whose very entrance into the profession relies on a test of logic, such inconsistencies are surely confounding. There were also significant favorable shifts in demeanor towards sexual minorities on the individual level. Justice O'Connor voted with the Bowers majority that the criminalization of same-sex sexual conduct met constitutional muster, yet voted *119 with the Romer majority. O'Connor again somewhat dodged her 1986 vote in Lawrence v. Texas. There, she opined that while there is no fundamental constitutional right to sodomy, a law banning only same-sex sodomy could not survive Equal Protection scrutiny. Justice Lewis Powell, uneasy with his majority vote in Bowers from the very beginning, publicly voiced regret over it in 1990. The pro-gay rights trajectory of the 1990s was not limited to federal courts. Between 1986 and 1998, numerous state courts invalidated anti-sodomy laws under their respective constitutions and rejected Bowers. In 1992, the Kentucky Supreme Court was the first court of last resort to invalidate a state sodomy statute under state constitutional grounds after Bowers. Between 1992 and 2002, five additional state high courts followed Kentucky's lead. Notably, these courts declined to extend Bowers notwithstanding widespread public opposition to homosexuality. *120 The development of sexual minority rights jurisprudence on the state and federal level suggests that something significant helped usher in a watershed era of unparalleled success for sexual minority litigants in the early 1990s. While these post-Bowers decisions were undoubtedly correct in their outcome, there is little explanation in academic literature for the timing and manner in which they came about. There is, however, a framework of analysis originally proffered by the civil rights academic and critical race theory pioneer, Professor Derrick Bell, which can help explain the logical inconsistencies between Bowers and Romer. Professor Bell tackled the great unanswered question about the timing and substance of Brown v. Board of Education: what caused the Court in 1954 to profoundly depart from the “separate but equal” doctrine at a time when desegregation was widely opposed by the public?


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Recommended Citation

Anthony M. Kreis, Gay Gentrification: Whitewashed Fictions of LGBT Privilege and the New Interest-Convergence Dilemma, 31 Law & Ineq. 117 (2012).





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