Gays, Federalism, and Minority Rights:

The brouhaha over the latest iteration of the Federal Marriage Amendment has stimulated interest in the relationship between federalism and gay rights. Strikingly, gays seem to be an unpopular minority that benefits more from decentralized federalism than from the concentration of power in Washington. Historically, most scholars and commentators have tended to believe that the federal government is a better protector of unpopular minorities than are state and local governments. Obviously, this view owes much to the history of African-Americans, who were twice (in the 1860s and 1960s) rescued from vicious state oppresssion by the feds. I think that this view is an oversimplification of the African-American experience (for some reasons why, see here and here), but there can be no denying the lessons of the Reconstruction and Civil Rights Movement eras.

The gay experience, however, cuts against the traditional view of the relationship between federalism and minority rights. Gays have fared far better in the statehouses and city halls than in Congress and the White House. This trend has persisted under both Democratic and Republican presidents and congresses, and so cannot all be blamed on George W. Bush. Over the last several decades, numerous states and localities have enacted laws protecting gays against discrimination, several states (including Connecticut and California) have enacted civil union laws through their democratic processes, and one (Massachusetts) has adopted gay marriage, though by judicial decision.

By contrast, the few federal interventions in this field have mostly cut against gay interests rather than for them (e.g. - "Don't ask, Don't tell," the Defense of Marriage Act, etc.). To be sure, many state and local governments have historically had antigay policies of various types (most notoriously, antisodomy laws), but the feds did little or nothing to curb such excesses and there is little doubt that if policy towards gays had been under federal control at the time these laws were enacted, gays would not have been treated any more favorably than they were by the states. As Yale Law Professor William Eskridge documents in his book Gaylaw (1999), the federal government in fact has a long history of antigay discrimination as bad or worse as that of the states. Even the belated invalidation of antisodomy laws by the Supreme Court in Lawrence v. Texas came at a time when only 13 states still had such laws and most of them no longer actively enforced them.

Why have gays, contrary to the conventional wisdom, benefited from federalism? Perhaps it is simply random chance or contingent factors. However, in my view there is a deeper logic at work. At an estimated 2 or 3 percent of the population, gays lack the numbers and resources to have a major impact on national politics, especially in comparison to the much greater numbers and resources of their main adversaries, the religious right. As Bruce Ackerman pointed out in a classic Harvard Law Review article (unfortunately unavailable online), gay political influence at the national level is also reduced by the fact that many of them are "in the closet" and are therefore unlikely to engage in pro-gay political activity so long as that is the case.

However, the gay population (at least the openly gay portion thereof) is highly concentrated in major urban areas, such as New York, DC, and San Francisco. In these places, gays are numerous enough to have some clout. This power is accentuated by the fact that gays tend to "vote with their feet" for cities where there is greater tolerance for them on the part of the general population. Thus, gays can succeed politically at the local and state level because 1) they tend to be concentrated in a few specific areas, magnifying their influence, 2) those areas will likely be places where antigay political forces are comparatively weak, and 3) in such relatively tolerant locations, a higher percentage of the already large gay population will be out of the closet and able to participate in pro-gay political action. Moreover, given the important contributions of gays to local economies, local governments seeking to increase tax revenue have at least some incentive to adopt progay policies in order to get a leg up on their competitors.

Although I can't cover them all in this post, there are important lessons here for both the gay rights movement (which should be more wary of the growth of federal power than many of its members seem to be), and for our broader understanding of the relationship between federalism and minority rights.

Mark F. (mail):
Good comments, Ilya. I would also point out that no openly gay non-incumbant man has ever been elected to Congress.
6.9.2006 1:25am
A. Zarkov (mail):
"most notoriously, antisodomy laws"

Ineffective yes, but why notorious? If we had less sodomy wouldn't we reduce the transmission of the AIDS virus? The probability of becoming HIV positive from a single instance of unprotected heterosexual intercourse is about 1/1,000 based on a study of cohabiting heterosexuals with one partner infected (See JASA circa 1992). So it's no surprise that AIDS is not terribly prevalent among heterosexuals, at least in America. I don't know why AIDS is so widespread in Africa, but that is another topic. Why should the community not try to suppress a disease vector?
6.9.2006 2:54am
Kinney (mail):
Because we would have even less AIDS if they also legislated hetrosexual sex.
6.9.2006 3:07am
Cornellian (mail):
Why should the community not try to suppress a disease vector?

You mean you want them to outlaw heterosexual sex and sex between men, leaving only lesbian sex as legally permissible?
6.9.2006 3:42am
A. Zarkov (mail):
"Because we would have even less AIDS if they also legislated hetrosexual (sic) sex."

When we legislate we must consider cost versus benefit. While there is of course a much higher frequency of heterosexual contact than homosexual contact because the number of heterosexuals is greater, the transmission of disease is greater because of the relative risks involved. That's why I brought up the study reported in JASA. As to benefits: heterosexual sex does sometimes produce children, which is a benefit to the community. As far as I know, sodomy begets zero children. If there is some benefit to the community from sodomy, I'd like to know it.
6.9.2006 4:09am
A. Zarkov (mail):
"You mean you want them to outlaw heterosexual sex and sex between men, leaving only lesbian sex as legally permissible?"

Actually I think it futile to outlaw any kind of sex, because by nature it occurs in private. My objection is labeling anti-sodomy laws as "notorious." Similarly laws against fornication would also be futile, but not notorious. Less fornication would also mean less disease of both the conventional STD as well as AIDS. It would cost the community nothing if there were no sodomy. We can't say the same for heterosexual sex.
6.9.2006 4:21am
Gabor (mail):

"Strikingly, gays seem to be an unpopular minority that benefits more from decentralized federalism than from the concentration of power in Washington.


This is because we are still in the era before gay rights have achieved anything approaching a nation-wide and universal recognition. By the same terms, we could say that before emancipation, African-Americans did "benefit from decentralized federalism" in those parts of the country that did not allow slavery. To push the analogy further, like gay Americans today, freed and escaped African-American did tend to cluster in liberal, urban environments. I hope that you are not suggesting that such locally-limted recognitions of human rights were or are sufficient.
6.9.2006 4:57am
Paul S (mail):
I think it's a very thoughtful piece. I thought "notorious" was simply a way of referring to something that is famous for being bad. From the point of view of those who oppose anti-gay laws, which is the perspective the post is exploring if not endorsing, and those who think that the law treated gay people unfairly, they are the most "notorious" example. I guess if you favour such laws, "famous" would be better.

BTW, the disease argument, if it worked at all (which I doubt), would hardly save the anti-sodomy laws as they were actually enacted and enforced. In particular there would be no reason to distinguish between straight and gay anal sex, whereas some laws explicitly and others in terms of their sporadic enforcement did. And there would be no reason to prohibit homosexual practices which carry a low risk of HIV infection: mutual masturbation, oral sex etc. Especially since those practices or variants of them are also commonly enjoyed by straight people too.
6.9.2006 5:21am
Paul S (mail):
At risk of drifting off topic:

If there is some benefit to the community from sodomy, I'd like to know it.

The direct benefit to the community is the pleasure experienced by those of us who wish to sodomize each other and are able to do so. This is not qualitatively different from the "benefit to the community" which flows in general terms from permitting people to do what they want to do: watch baseball, play bagpipes, eat oysters etc. It may be more significant, in so far as sexual fulfilment probably has a greater effect on people's happiness than more peripheral activities.

The indirect benefit to the community from decriminalising sodomy may include:

(1) The greater sense of community solidarity which prevails when a group of people are not being ostracized. Gays are happier and may well be "better citizens" if we know that what we are doing is legal.

(2) A reduction in crime associated with the criminalization of sex, including prostitution and blackmail in particular.

(3) An improvement in the quality and stability of gay relationships caused by the ability to live openly, and possibly in some cases a reduction in promiscuity (though the net effect of that is probably hard to gauge).

(4) Better use of police and criminal justice system resources, by devoting them to combating activities which cause more harm to the community interest than consensual sodomy does.

Of course, this is not to say that permitting sodomy comes at no cost to the community. There is room for argument, maybe, about the net cost/benefit (it seems pretty clear to me, but it would, of course). But I don't think it's fair to say that there are no benefits from permitting sodomy.
6.9.2006 5:54am
logicnazi (mail) (www):
I simply don't understand this attitude that keeps popping up in posts like this as well as the nicotine posts and several others that somehow the only things which count as benefits or goods are increased lifespan and increased economic productivity.

Every day we (as individuals) make deciscions that diminish our expected lifespans or reduce our economic output to increase our enjoyment of life. Any time you get in the car to go somewhere for fun or to run a non-essential errand you are not only increasing your chance of death but also that of other drivers and pedestrians. Many times old people have sex (depending on their exact medical conditions) they risk heart attacks and spreading disease for no economic benefit. Everyone could earn more money and increase world productivity by taking a second job once their children leave the house or they could donate all their free time to AIDS education but we don't excoriate them for enjoying their lives at some economic and lifespan cost.

If the argument to illegalize gay sex on disease transmision grounds was valid then we should also ban sex involving post menopausal women. Heck, we could do way better at increasing lifespan and saving money by banning fast food.

This argument is just so ridiculous that I'm half convinced I'm being taken in by a troll. I mean obviously the benefits that society should ultimately consider in a cost benefits analysis is something like (or at the very least includes) the total quality or enjoyability of life. Sure living longer is better because we get to have more of a good thing but if we have to give up major pleasures in life just to increase our expected lifespan a bit that isn't a good trade.

Clearly the benefit that gay sex brings is that gay people find it fun and enjoyable and it improves their relationships, the same thing it does for straight people too old to have kids.

Besides, it is always a bad idea to assume that banning an activity with negative public health consequences you will actually reduce those bad effects. Often the net result is just to drive the activity further underground making it more difficult to convey harm reduction information (use condoms) and ultimately increasing the number of unsafe instances.
6.9.2006 6:04am
Jon Rowe (mail) (www):

Historically sodomy laws, which are quite old, have absolutely nothing to do with AIDS, which is relatively new in the world scene.
6.9.2006 11:18am
Steve Lubet (mail):
Before 1860, African-Americans were better protected by (some) states than by the federal government. The federal Constitution protected slavery, and after the Dred Scott decision virtually enshrined it.

On the other hand, northern states enacted "personal liberty laws" that attempted to defend fugitive slaves. Those laws, however, were virtually preempted by the federal Fugitive Slave Act of 1850, whereby the federal government was committed to assist masters in recapturing their slaves.

During the period 1850-61, federal troops were repeatedly used to drag fugitives back to the south, over the objections of free state governments.
6.9.2006 11:27am
You Know Who:

I agree with your and the other commenters about the wisdom concerning legislating against anal sex. But, as a matter of risk of contracting AIDs (or other STDs), Zarkov's main point is relevant: unprotected anal sex between an STD carrier and a non-carrier (whether the sex is between homosexuals or between heterosexuals) is far more risky than other forms of unprotected sex (viz., heterosexual vaginal intercourse) between a carrier and a non-carrier.

The main reason is quite simple: vessels in the rectum and surrounding area are likely to tear during anal sex, which increases in the likelihood of disease transmission.
6.9.2006 11:28am
AAE (mail):
At the risk of moving the topic thread away from the utility and mechanics of sodomy...

Prof. Somin is quite correct that his post raises interesting questions about the relationship between federalism and minority rights. But history contradicts the theory that the federal gov't has been the traditional means of "raising up" minority groups.

Over the last forty years, the feds have taken the lead in protecting rights of ethnic and racial minorities, women, etc. But looking back at the experience of immigrant groups like the Irish, Italians, and Polish reveals a different trend, one in which use of state and local gov't played a greater part than the fed. gov't.

These and other European minority groups joined up with and coopted the big city political machines. They then used state and local gov't to get a fairer shake for their groups. True, this wasn't done so much through civil rights laws as it was through use of patronage, taking advantage of gov't employment, and other, less polite methods. But the long run effect was the same: it brought these groups the greater protection of gov't. Involvement of the federal gov't in this was, at best, secondary.

In looking to state and local gov't, gays aren't doing anything terribly new. Instead, they're going back to an older tradition. But they're using the more modern means (legislation v. patronage, gov't employment, etc.) to protect their group.
6.9.2006 3:22pm
A. Zarkov (mail):
The cost to the community of sodomy is not trivial. Let's look at some statistics. Over all, at the end of 2004, the CDC reports 319,699 adult American men and male adolescents diagnosed with AIDS, and 66% of these became infected by male-on-male sexual contact (MSM). A total of 11% became infected by heterosexual contact. A total of 21% became infected by injection drug use (IDU). There is a category call MSM plus IDU, which is 8%. I combined with the MSM to get the 66%, or 211,000 men. Some might quibble with this, so use 58% for MSM if you like. Of the 95,494 adult American women and female adolescents diagnosed with AIDS, 64% became infected by heterosexual contact and 34% by IDU.

Now we have to connect these figures with the practice of sodomy, defined as anal penetration. I'm going to assume 100% of the MSM infections were caused by anal penetration. This might be a small over estimate, but I think it's a reasonable assumption.

I don't know how frequently male-on-female sex involves sodomy, but I'm using the .001 per event infection probability for heterosexual intercourse and a few assumptions to say 75% of the women infected through heterosexual contact became infected by anal sex. It really isn't going to matter much because AID is most a male disease. This gives a total of 45,837 women who became infected with AIDS from sodomy.

We arrive at a total of 256,838 AIDS (62% of all AIDS) cases caused by sodomy. Conclusion: the practice of sodomy is a non-trivial cost to the community. If somehow we could magically have eliminated this practice, we would many fewer AIDS cases—less than half. Note that IDU which is illegal, is less of a problem.
6.9.2006 3:41pm
Steve Herman (mail) (www):
Don't disagree. Yet we have to recognize that Federalism is the last refuge of a soundrel. It's easier to lambast Republicans or other "conservatives" for being hypocritical because they are the ones who are much more apt to trumpet "States Rights" when it suits them. Nevertheless, virtually everyone rides both sides of this fence. Virtually every Federalism debate is nothing more than Forum Shopping. - For more on the No Gay Marriage Amendment check out "You Want to Amend the Constitution for That?" posted on
6.9.2006 3:56pm
BobN (mail):
Has anyone else noticed the stories about the HPV vaccine and how it will prevent hundreds of thousands of deaths?

I wonder why it is that the stories blame the disease itself for those deaths and not the real culprit: heterosexuality.

6.9.2006 5:14pm
Slaveowners regarded themselves as an oppressed minority. And they definitely benefitted from federalism. And by doing so, they gave federalism a bad name for more than a century -- one it is only just beginning to recover from.

Slaveholders characterized themselves as apostles of tolerance and diversity -- Calhoun invented much of our current political vocabulary on the subject -- and they characterized their abolitionist opponents as fundamentalist moralmongers motivated by hate and dangerous to society -- rhetoric familiar to anyone today.

The moralmongers are sometimes wrong, sometimes right. Slavery is one thing they were right on, and hence their contribution to the game is worth something, even if some of their later at-bats turn out to be strikes.

It's also worth remembering that courts sometimes get it wrong too. Judges don't seem any better at moral decisions, in the long run, than bible-readers, or tea-leaf readers, or anyone else among the rest of us. Humility can be a source of wisdom. We can't tell the outcome of social experiments we begin for generations, and we can always be wrong. At least a multiplicity of legislatures can experiment and try different things. And if legislators get it wrong they can be voted out of office, something impossible to do with judges.
6.9.2006 8:41pm
Paul Stanley (mail):
A Zarkov:

I don't think anyone doubts that if it were possible to eliminate anal sex entirely then HIV infection would fall. But that misses a raft of issues, including:

(1) Sodomy laws are not effective for that purpose, because it is well-nigh impossible to enforce them effectively. They are probably counter-productive, because by criminalising anal sex they stand in the way of education and risk-reduction strategies which are quite effective.

(2) Sodomy laws as drafted and applied were not properly tailored to that purpose because they criminalised low-risk sex. That was overbroad.

(3) Sodomy laws as drafted and applied were not appropriate to that purpose because they tended to criminalise gay anal sex not straight anal sex. That was too narrow, if the purpose was as you would have it.

(4) As a matter of historical fact, sodomy laws were not designed to address HIV infection, but to "protect public morals".

(5) Even if it were possible to eliminate several hundred thousand cases of disease, it is still highly doubtful that the price you propose would be worth paying. There would be lots of unhappy would-be and ex-sodomites who would (as our behaviour shows) much rather take the (fairly small) risk than not. It's nice to know you care, but--thankyou--we would rather carry on as before.

A public-health case for sodomy laws seems to me to have about as much chance of flying as an elephant. Even if you tie on some statistical wings.
6.9.2006 9:03pm
A. Zarkov (mail):
Paul Stanley:

Most everything you write also applies to illegal injection drug use, yet that remains prohibited, and though it's frequently done in private, hard to enforce, and largely ineffective. Actually I thought I was clear in my posts that I considered anti-sodomy laws ineffective. My objection was calling them "notorious" because there is a rational basis for such laws from the standpoint of public health. While it's true that many, but not all, anti-sodomy laws pre-date the AIDS epidemic, sodomy was always a vector for STDs. Remember not so long ago, we couldn't treat other STDs either. So I would not be so bold as to try and get inside the heads of legislators and say the sole reason they enacted anti-sodomy laws was from religion-based morals.

The defects you point out in anti-sodomy laws (ignoring whether they really are defects) could be cured by redrafting them. The narrow focus on gay anal sex is not that irrational because that's where the problem lies, as the CDC statistics demonstrate.

When you write:

"... it is still highly doubtful that the price you propose would be worth paying. There would be lots of unhappy would-be and ex-sodomites .."

I have to say that's a weak argument. If not for the promiscuous gay anal sex that started in the 1970s, we might never have had the AIDS epidemic, which initially contaminated the blood supply and led to sickness and death throughout the population. The virus responsible for AIDS has been around at since the 1940s waiting for the vector to make it the cause of an epidemic. While it's true we have always had people engaging in sodomy, the libertine subculture that led to the epidemic came to the US about 1970.
6.9.2006 10:41pm
To answer the question about HIV in africa vs the u.s. there are several strains of the virus (I think of them as subspecies, but someone more knowlageable will probibly shoot this analogy down)some of the strains are more virulent (easier to catch) than others. We have lucked out and have for the most part harder to catch strains. Always remeber a sexualy transmited desease is one it is so hard to catch you have to fuck someone to get it.
6.10.2006 1:54am
Paul Stanley (mail):
A Zarkov:

Most everything you write also applies to illegal injection drug use, yet that remains prohibited, and though it's frequently done in private, hard to enforce, and largely ineffective.

Yes, I agree. I think the criminalisation of the use of narcotics is (nearly) as irrational as an attempt to criminalise sodomy. There are, of course, distinctions including: (1) The relative ease of enforcing drug laws because the drugs trade produces more "evidence" than consensual sex and (2) a risk/benefit balance for drugs use that is pretty clearly less favorable for drug use than gay sex is for gay men. It may be worse, in the sense that it may well be more counterproductive (compared to its stated aim) than the criminalisation of sodomy, and undoubtedly consumes greater resources. Nevertheless, I cannot myself accept that one can build a strong argument on the foundation that the "war on drugs" is a rational policy therefore anything that resembles it is a rational policy. The "war on drugs" is, as it seems to me, a shibboleth based on taboo not reason.

In short, I think it is hard to avoid the conclusion that what truly lies behind anti-sodomy laws is an illiberal (using liberal in the classical J.S. Mill sense) desire to impose "morality" on others. The cat's whiskers, if not its tail and forepaws, peek out of the bag in your account of the HIV epidemic, not as a tragedy for hundreds of thousands of gay men, but as the consequence of behavior described in opprobrious terms with unfortunate consequences for the non-gay. Gay men were not merely vectors, they were victims: from the US perspective as your statistics show, numerically the majority of victims of this terrible misfortune. But, be that as it may, it remains the case that the sodomy laws were not designed to prevent HIV, nor could have been.
6.10.2006 9:32am
Public_Defender (mail):
Why are sodomy laws "notorious"? A gay couple just bought the house across the street from me. I would much rather have the police worry about burglary than buggery.

And for my neighborhood's sake, I'd rather have the couple have the stability that marriage laws provide.

And who has done more damage to heterosexual marriage? If the monogamous gay couple who bought a house together? Or the divorced woman next door and her now ex-husband who broke up when their kid was about 12 months old?

The risk of AIDS comes from multiple partners, not from the sex of those multiple partners. A person in a faithful gay relationship (which marriage encourages) is much safer than a promiscuous heterosexual.

Back to the question, when a hard-core right-winger like Clarence Thomas thinks sodomy laws are "silly," it's perfectly fair to call them "notorious."
6.10.2006 12:47pm
A, Zarkov (mail):
"The risk of AIDS comes from multiple partners, not from the sex of those multiple partners. A person in a faithful gay relationship (which marriage encourages) is much safer than a promiscuous heterosexual."

Not really true. It's what those multiple do that counts. While it's true that promiscuous sexual behavior provides a vector for the AIDS virus and other STDs; it's the practice of sodomy that really amplifies virus transmission. A lot. It's pretty difficult to get infected with the AIDS virus with normal heterosexual intercourse, not so with sodomy. So a small number of multiple partners with sodomy are overwhelmingly more dangerous than a large number of multiple partners with heterosexual intercourse. Male homosexuals are far more promiscuous than male heterosexuals, and for a good reason: women. Women tend act as a brake on male sexuality because they have a greater desire for monogamous relationships. Do you really think it's as easy to go into a bar and pick up a woman (who is not a prostitute) for sex as it is for a gay guy to do likewise at a gay bar? If you know such a non-gay bar give us the address.

If we had a public campaign against sodomy the way we have against tobacco, it's likely (but not certain) that transmission of the AIDS virus would drop. But no, we can't even attempt such a thing because we are allowing a tiny fraction of the population to determine public policy, the health of everyone be damned.
6.10.2006 4:16pm
Paul Stanley (mail):
I would love to see such a campaign. Perhaps one could start by prohibiting sodomy in bars and restaurants. One could, by court order, tattoo messages from the surgeon-general on the buttocks of promiscuous gays. An advertising campaign along the lines of "Don't be an a**h***: stay safe" sounds promisingly camp. Sodomites who just couldn't kick the habit could be exiled to tiny back rooms to feed their vile addiction. O hell, it's starting to sound like a certain sort of club ...

I suppose it's faintly possible that encouraging gay men to form stable relationships in which social approval depends on being faithful and promiscuity is stigmatised could be part of the equation. There's a thing called "marriage" which is alleged to have that function. But that's reserved for straight people who (thanks to women) don't need it. Pity.
6.10.2006 5:30pm
A, Zarkov (mail):
We could have a campaign that teaches that safe sex means avoiding sodomy. Right now the official position of many institutions is that sodomy is perfectly ok, it's just another form of human sexuality that should not be discouraged. Calling anti-sodomy laws "notorious" is a good example of how much this attitude has permeated society. Now that position is even backed up by SCOTUS. BTW not all male homosexuals engage in sodomy. I know some who think the practice is repulsive.
6.10.2006 8:09pm
John Noble (mail):
Prof. Lubet suggests an interesting point. Government authority can be applied to the oppression or liberation of a class. The signal difference between the gay rights movement and the civil rights movement is that the federal agenda of the gay rights movement is laissez-faire, while the federal agenda of the civil rights movement required federal intervention.

Reconstruciton and the Civil Rights movement eviscerated the State's constitutional authority to oppress (revealed in context by Romer, Lawrence), but preserved its constitutional authority to liberate (civil unions, gay marriage). So pro-gay political action at the state and local level doesn't have a downside, unless it provokes political action at the federal level (the marriage amendment).

Political action at the federal level has both an upside (military service), and a downside (don't-ask-don't-tell); but its political authority is held in check by competing political forces (the marriage amendment fails).

Gays may be a political minority, but so are the opponents of gay rights for whom the issue is politically salient. The difference between the two is that the cohesive religious right exercises its influence as a reliable voting bloc, while gays exercise political influence in both parties, at all levels of government, and only become a cohesive voting bloc when they're incited to vote against the incitement. Incitement is always counter-productive.

The bottom line is that gay political activists can look to local government for liberation; count on the politically insulated Supreme Court to cabin local government's constitutional authority to oppress; and settle for neutralizing the federal government's political authority to oppress.
6.11.2006 5:48pm