Part I of this essay will introduce the queer theories underlying my critique and will outline the discrete positioning of lesbian and gay identity and community which labels these cases “victories.” The intersectionality of queer identity is the key blind spot in the litigation model. The queer continuum, a re-conceptualization of Adrienne Rich's lesbian continuum, delineates the spectrum of queer identity. Part II will explore the facts, issues and holdings of these four cases. My examination of these cases will reveal how they grant some rights to “but-for” queers, who, “but-for” their being lesbian or gay, would be “perfect citizens.” I will discuss how the rules and applications of these cases either exclude some queer communities or address issues irrelevant to other communities. The communities whose interest I specifically address are poor queers, queers of color, sexual subversives, and gender subversive queers. These limitations should figure prominently in the consideration of litigation's role in queer activism. In Part III, I conclude by outlining the implications of this critique for the relationship between queer communities and litigation.
Darren Rosenblum, Queer Intersectionality and the Failure of Recent Lesbian and Gay "Victories", 4 Law & Sexuality 83 (1994), available at http://digitalcommons.pace.edu/lawfaculty/210/.