The Case for Gay Rights
From Bowers to Lawrence and Beyond
Sales Date: September 1, 2005
264 Pages, 6.00 x 9.00 in
- Published: September 2005
- Published: April 2016
As Americans wrestle with red-versus-blue debates over traditional values, defense of marriage, and gay rights, reason often seems to take a back seat to emotion. In response, David Richards, a widely respected legal scholar and long-time champion of gay rights, reflects upon the constitutional and democratic principles—relating to privacy, intimate life, free speech, tolerance, and conscience-that underpin these often heated debates.
The distillation of Richards’s thirty-year advocacy for the rights of gays and lesbians, his book provides a reflective treatise on basic human rights that touch all of our lives. Drawing upon his own experiences as a gay man, Richards interweaves personal observations with philosophical, political, judicial, and psychological insights to make a compelling case that gays should be entitled to the same rights and protections that every American enjoys. Indeed, the call for gay rights can trace its lineage back to the powerful protest movements of the 1960s and 1970s, which demanded racial and sexual equality and ultimately overthrew the bigoted status quo.
Richards focuses particularly on two key Supreme Court cases: the 1986 decision in Bowers v. Hardwick upholding Georgia’s anti-sodomy laws and the 2003 decision in Lawrence v. Texas striking down Texas anti-sodomy laws and overturning Bowers. He shows how Bowers arose in a period of constitutional crisis over the right to privacy and examines the opinions in light of the Court’s division in Roe v. Wade. He then shows that Lawrence must be understood in the context of later cases, notably Casey and Romer, which required that Bowers be reconsidered and overruled. Along the way, he examines current debates over gays in the military and same-sex marriage, assesses the Massachusetts Supreme Court’s decision to permit gay marriage, and critiques the 1996 Defense of Marriage Act.
Eloquent and impassioned, Richards’s work crystallizes the essence of the argument for a much more expansive and tolerant view of gay rights in America. It also offers a touching account of one gay man’s very personal struggle to find the voice he needed to speak truth to the powerful forces of discrimination.
Richards walks through his own personal, intellectual, and professional journey across a period that parallels the most important years in the struggle for expansion of gay rights. Just as sexual minorities have gained their legal voice over the past two generations, Richards here maps his own ‘struggle for voice, as a gay man’ during that period. . . . The book soars in the initial and concluding chapters when the writing is most personal without being overly exhibitionistic."—Choice
“This book captivated me, gripped my attention. The interweaving of a personal quest for an ethical voice and open identity with the quest to affirm equal protection of gay rights is original and leads to astonishing insights. . . . A brilliant and incisive work.”—Carol Gilligan, author of In a Different Voice and The Birth of Pleasure
“This book offers a unique—and compelling—insight into the law’s treatment of lesbians and gay men. Richards combines psychology, philosophy, history and legal analysis to explain why so many Americans regard it as right to discriminate against lesbians and gay men, how the law has traditionally enforced this, why such discrimination is morally wrong, and why the law should move in a more humane direction. In doing so, Richards tells an intriguing and deeply moving personal story, as well as offering a powerful and rigorous defense of his interpretation of the Bill of Rights.”—Nicholas Bamforth, author of Sexuality, Morals and Justice
“David Richards offers us a compelling and moving account of why and how gay and lesbian rights should be protected as a matter of constitutional principle. This book is crucial reading for legal scholars and lawyers who are committed to the promotion of gay rights, but it is also an original contribution into the history of the gay and lesbian movement in the United States. Richards’s brilliant insight combined with his careful legal analysis points us toward the democratic dream of a non-patriarchal society.—Drucilla Cornell, author of Defending Ideals
“The first major figure in American constitutional law to argue that consensual sodomy laws are unconstitutional, Richards once again presses the constitutional envelope in this important, erudite, and intensely personal book.”—William N. Eskridge, Jr., author of The Case for Same-Sex Marriage
“A tour de force of legal analysis.”—Evan Gerstmann, author of Same-Sex Marriage and the Constitution
1. The Personal as Political
The Struggle for Voice
Part I: Philosophy
-Liberal Political Philosophy and -Constitutional Law
Part II: Law
3. Judicial Review in the United States After World War II: Free Speech and Gay Rights as a Protest Movement
-Resisting Voice in History
-Why So Late?
-The Emergence of Arguments for Gay Rights
4. Judicial Review in the United States After World War II: Religion, Race, and Gender
Antebellum Radical Abolitionist Protest
Constitutional Struggle, the Civil Rights Movement, and Abolitionist Antiracism
-The Feminist Movement and Constitional Development
5. The Constitutional Rights to Privacy
6. Bowers v. Hardwick
7. Lawrence v. Texas
8. Sexual Orientation as a Suspect Class
-The Religion Analogy
-The Gender Analogy
-Exclusion from the Military
9. Same-Sex Marriage
Part III: Psychology
-Voice, Resistance, Reaction, and Psychology
-Men, Honor, and Obligatory Violence
Index of Cases