“The First Amendment and LGBT Equality” by Carlos A. Ball— The Contentious History of Equal Rights

Ball, Carlos A. “The First Amendment and LGBT Equality”, Harvard University Press, 2017.

The Contentious History of Equal Rights

Amos Lassen

The conservative opponents of LGBT equality in the United States often base their opposition on the claims of free speech, free association, and religious liberty. Many LGBT supporters see the First Amendment arguments with resistance to their cause as an answer to this. Carlos Ball tells us another story in his “The First Amendment and LGBT Equality” focusing on the First Amendment’s crucial but often forgotten role in the first few decades of the gay rights movement.

Between the 1950s and 1980s, when many of our courts were still openly hostile to sexual minorities, they did recognize the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it the groundwork for major LGBT equality victories had been set down.

We see here the full trajectory of this legal and cultural history. Ball argues that while accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the ways in which American antidiscrimination law has decades, accommodated equality dissenters for decades. He also argues that as progressives fight the First Amendment claims of the religious conservatives and other LGBT opponents today, it is important to take care not to destroy the very safeguards of liberty that have allowed LGBT rights to exist in the first place

Ball examined the history in light of its theoretical implications. Realizing the growing hostility toward First Amendment claims by some elements of the LGBT movement, this is a very important book.

Ball contends that First Amendment law, which once worked to protect LGBT citizens, now protects dissenting religious traditionalists. Settlements that were attained in previous times of conflict between equality law and religious freedom should guide constitutional actors today. Below is the Table of Contents:

  • From the First Amendment to LGBT Equality
    • Moral Displacement and Obscenity Law
    • Coming Together and Free Expression
    • Coming Out and Free Expression
    • Activism in and out of the Courts
  • From LGBT Equality to the First Amendment
    • The Race and Gender Precedents
    • LGBT Equality and the Right to Exclude
    • Marriage Equality and Religious Liberty
  • Conclusion
  • Notes
  • Acknowledgments
  • Index


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