In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become incidental allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This Article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in scientific developments that influenced the decisions of social workers and other bureaucrats working in the administrative state. This phenomenon continues today, with educators resisting laws that limit transgender students’ bathroom access.
By uncovering this bureaucratic resistance, this Article demonstrates the administrative state’s dynamism and that bureaucracy can be an important site of legal change. Because bureaucrats are charged with enforcing legislation, their actions also have significant normative implications, raising separation of powers and democratic legitimacy concerns. However, the very structure of administrative bureaucracies creates conflict between the branches, as civil servants are hired for their professional knowledge and abilities, yet are also responsible for complying with legislative mandates that may contradict that expertise. This Article argues that bureaucratic resistance is inevitable, can be legitimate, and may be desirable.
Berger-Howe Fellow in Legal History, Harvard Law School; Ph.D. Candidate, Department of History, Yale University; J.D. Columbia Law School. I am indebted to Ian Ayers, Richard Briffault, Jessica Bulman-Pozen, Deborah Dinner, Elizabeth Emens, Cary Franklin, Suzanne Goldberg, Clare Huntington, Michael Heller, Olati Johnson, Jeremy Kessler, Jim Liebman, Anna Lvovsky, Serena Mayeri, Joanne Meyerowitz, Gillian Metzger, Henry Monaghan, Kim Mutcherson, Doug NeJaime, Luke Norris, Dave Pozen, Carol Sanger, Elizabeth Scott, Reva Siegel, Allison Tait, David Tanenhaus, and John Witt for their invaluable feedback on drafts. I am also grateful to participants in the Columbia Law School Fellows and Associates Workshop, attendees at the 2016 Family Law Scholars and Teachers Conference, and audience members at the 2016 American Society for Legal History annual conference, as well as the faculties at Richmond, Rutgers, UGA, and Vanderbilt law schools, for their thoughtful comments and suggestions. Finally, I would like to thank the editors of the Yale Law & Policy Review, particularly Saúl Ramírez, Katie Choi, Mark Doré, and Matteo Godi, for their excellent editorial assistance. This project was made possible through the generous support of the Yale Fund for Lesbian and Gay Studies and the Cornell University Phil Zwickler Memorial Research Grant.
Volume 36, Issue 1