Assimilation or Liberation in LGBT Rights Cases at the Supreme Court

• In Event: Strategies for Advancing and Hindering LGBTQ Rights in the Law and Courts

Abstract

A tension persists between liberationist and assimilationist strategies in the LGBT movement. In the 1950s, Harry Hay and the Mattachine Society advocated for a more liberationist approach. After Hay and the other founders of Mattachine were ousted, the organization’s new leadership shifted the focus to assimilation (D’Emilio 1992). This view was dominant until New York City’s Stonewall Riots in 1969. After Stonewall, the movement’s focus again shifted. Liberationist organizations, most notably the Gay Liberation Front, gained membership as Mattachine and other assimilationist organizations waned in influence (Kissack 1995). This was followed by another period of more assimilationist, identity based organizing (Armstrong 2002). Movement goals included decriminalization of sodomy, freedom from oppressive societal discrimination, and, ultimately, entry to the institutions central to citizenship: marriage and the military.

Activists utilized the court system to advance these goals (Barclay et al 2009). This article evaluates the use of assimilationist or liberationist frames by lawyers arguing gay rights cases in the Supreme Court. To do this, we examine the merits briefs filed in LGBT rights cases from several different time periods in history. We start with the first LGBT rights victory, One Inc. v. Olsen, and end with Obergefell v. Hodges. Recent scholarship (e.g. Adler 2018; Duberman 2018) has called into question the extent to which activists have relied traditional LGBT equal rights framework, to the exclusion of other potential discourses and frameworks. We seek to contribute to that conversation by assessing the ways that attorneys frame LGBT rights claims in individual cases.

Author

• Edward F. Kammerer, Idaho State University