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55 Ohio St. L.J. 563 (1994)
Equal Protection and the Anti-Civil-Rights Initiatives: Protecting the Ability of Lesbians and Gay Men to Bargain in the Pluralist Bazaar

handle is hein.journals/ohslj55 and id is 577 raw text is: Opening Address

Equal Protection and the Anti-Civil-Rights
Initiatives: Protecting the Ability of Lesbians and
Gay Men to Bargain in the Pluralist Bazaar
MATrHiW COLES*
Rhonda got to do the fun part. A keynote speech is something you charge
people up with, and Rhonda just did that.1 I plan to talk about the basic legal
attacks that one can make on anti-civil-rights initiatives. At the end I hope to
have a little fun, but we're going to have to slog through a lot of constitutional
law on the way.
When you think about these initiatives and the way they single out lesbians
and gay men for totally different treatment in the political process, you think,
These initiatives are an equality problem, right? It's a natural. Indeed, it is a
natural. The best way to think constitutionally about these initiatives is in terms
of the Equal Protection Clause. First, I propose to talk about an important
feature of these initiatives that makes it particularly appropriate to think about
them in terms of equality. Second, I want to go through a little basic equal
protection law just to make sure we're all on the same wavelength. For many
of you this review will be a tiresome review of things you already know, so I'll
try to be terse. Third, I want to quickly review different kinds of equal
protection challenges one could raise to these initiatives, all of which have been
tried in cases. I'll go over how they tend to work out and their strengths and
weaknesses. Fourth, I'll talk briefly about one other way of looking at
initiatives that I think is worth exploring. Finally, I'll say a few words to try to
put the whole thing in a somewhat larger perspective-and I'll do it all in just a
few minutes.
In the 1970s and the early 1980s, there was a slew of repeals of lesbian and
gay civil rights laws.2 It is hard to think about how to successfully challenge a
repeal in court. Courts almost never require the passage of legislation, and they
* Staff Attorney, American Civil Liberties Union; Lecturer, Boalt Hall School of Law
and Hastings College of the Law, University of California; B.A., Yale University, 1973;
J.D., Hastings College of the Law, University of California, 1977.
1 See Rhonda R. Rivera, WMere Are We? And-Gay-Lesbian-Bisexual Ballot Attacks
Today, 55 Omo ST. L. 555 (1994).
2 In the late 1970s, lesbian and gay civil rights laws were repealed by voters in Dade
County, Florida, Wichita, Kansas, St. Paul, Minnesota, and Eugene, Oregon. See Rhonda
R. Rivera, Our Straight-Laced Judges: The Legal Postion of Homosexual Persons in the
United States, 30 HASTINGs L.. 799, 810 n.61 (1979).

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