Brought to you by the Stanford Program in Law and Society

Brought to you by the Stanford Program in Law and Society

Who regulates sexuality in America? Given the high salience of federal laws and policies such as the Defense of Marriage Act (DOMA) and the military’s “Don’t Ask Don’t Tell” policy, and states’ legal activism regarding same-sex marriage, it would seem that sexuality is mostly a federal and a state matter, and that cities play a secondary, if not insignificant role. This Article argues that in fact the opposite is true: the regulation of sexuality has been decentralized, with cities being the main locus where the most important issues pertaining to the lives of gays and lesbians are decided. This phenomenon, that we term the “localization of sexuality,” happened as a result of a lack of comprehensive federal protection of gays and lesbians, the limited protection given to them by states, and the powers which cities regularly possess. These powers, which include zoning, business licensing, districting, education and other police powers, are used by cities in ways that either benefit or harm sexual minorities. The localization of sexuality, we further argue, explains the residential patterns of gays and lesbians, who continue to concentrate in a relatively small number of cities and within them in certain neighborhoods. This “territorialization of sexuality” we contend, is a result of the attempt made by gays and lesbians to overcome their status as a permanent minority in both the federal and state levels. While these processes have gone almost unnoticed by scholars and courts, they have far reaching consequences which we describe and evaluate: they enable the creation of safe havens for gays and lesbians, they allow these sexual minorities to “dissent by deciding,” and they promote a pluralism of governmental practices concerning sexuality. Despite the risks that they bear, such as fragmentation and radicalization, the localization of sexuality is a desirable legal structure. It should, however, be accompanied by more comprehensive federal protections of gays and lesbians that would counter the Madisonian risk of too powerful localities.

About Professor Issi Rosen-Zvi

Professor Issachar Rosen-Zvi teaches Environmental Law, Local Government Law, Administrative Law and Civil procedure at the Tel Aviv University Faculty of Law. He obtained his LL.B. (magna cum laude) from Bar-Ilan University, his LL.M. in law and sociology from Tel Aviv University (summa cum laude). He continued his studies at Stanford Law School, where he received his J.S.D. in 2002. Professor Rosen-Zvi clerked for the Honorable Chief Justice Aharon Barak of the Israeli Supreme Court and practiced law at Kirkland & Ellis, LLP in New York, before accepting his current appointment at TAU in 2005. His research areas include environmental law, local government law, law and geography and civil procedure. He published articles in prestigious law reviews including the Virginia Law Review, Cornell Law Review, North Carolina Law Review and the Journal of Legal Empirical Studies as well as a book titled Taking Space Seriously (Ashgate, 2004) that explores the different ways in which a multicultural state deals with various social groups through spatial mechanisms.

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