Will LGBT Antidiscrimination Law Follow the Course of Race Antidiscrimination Law?

By Robert S. Chang. Full text here.

This Article examines several decades of race antidiscrimination law to conjecture about the course LGBT civil rights might take following Obergefell v. Hodges. It draws from Alan Freeman’s germinal Minnesota Law Review article, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, and asks whether Freeman’s thesis that race antidiscrimination law actually serves to legitimize the status quo of real-world racial inequality might apply with equal force in the context of LGBT civil rights and LGBT inequality. This Article suggests that the Court may develop, similar to its colorblind constitutionalism, a “sexuality-blind constitutionalism” in which formal equality is achieved but where distinctions drawn between public and private as well as the accommodation of religion might produce equality in name while leaving much inequality unredressed and legally unredressable. While not arguing for the abandonment of civil rights efforts in federal courts, this Article urges that these efforts be accompanied by efforts in state courts as well as in the political sphere at all levels. State level efforts may result in an unsatisfactory patchwork of equality and inequality based on geography, but state level advances in equality may inform changes that occur eventually at the federal level.