Consider Colin Powell's indignant reaction to the suggestion that the exclusion of gays from the military is analogous to the exclusion of African Americans from the military. Powell angrily insists that there is no analogy here that gays simply do not have the rights claimed by blacks. As soon as the issue is phrased in rights talk, those who agree with Powell and oppose what they like to call "special rights for homosexuals" start citing the Supreme Court's decision in Bowers v. Hardwick. The Court looked into the matter and solemnly found that there is no constitutional protection for sodomy. So people arguing against Powell have to contend that Bowers was wrongly decided. This leads to an argumentative impasse, one that suggests that rights talk is the wrong approach.
The Brown v. Board of Education decision was not a discovery of a hitherto unnoticed constitutional right, or of the hitherto unnoticed intentions of the authors of constitutional amendments. Rather, it was the result of our society's long