Gay Law and Social Change May 9, 2008

From William A. Percy
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by Wayne R. Dynes


During the course of the 1970s, the first ecstatic waves of gay liberation peaked and then began to subside. It became evident that the walls of oppression were not going magically to fall just because we were issuing, in the fashion of the day, some sort of “nonnegotiable demands.”

At that point I elected to join the National Committee for Sexual Civil Liberties, headed by the redoubtable Arthur Warner of Princeton. This group adopted an incremental approach to getting rid of the sodomy laws. This process of state-by-state decriminalization had begun with Illinois in 1961. After other, better financed organizations took over, the job was finally finished with a Supreme Court decision in the case of Lawrence v. Texas (2003).

Of course the job was not finished, because two big tasks remain: ending discrimination against gays and lesbians in the military, and securing same-sex-marriage as a national right.

With the additional hurdles noted still in prospect, this is basically a judges-only approach, based on the strategy of finding elite individuals who are highly placed in the legal system. Ultimately, these makers and shakers will strike down the bad laws, however reluctant public opinion at large may be.

In the last analysis, the approach rests upon a libertarian view of society as an alliance of autonomous citizens. In order to secure individual flourishing, what we must do, first and foremost, is to lift the burden of government intervention. Removing antigay laws does this.

Yet is this approach enough? Some while back, I came to realize that gays could not convert “virtually normal” (in Andrew Sullivan’s phrase) into “normal, period” without a great change in hearts and minds. Some of this advance could be achieved through reports, studies, and argumentation, following the example set by Alfred Kinsey in 1948. The other path was a grass-roots one, for as more and more gay and lesbian people come out to friends and relatives, the latter folks realize that this is a human situation, and not some set of statistics.

Still, there remains--even among some people who formally acquiesce in gay rights--a deep current of reservation. They are uneasy when it comes to the physical facts of gay and lesbian sex. They would just as soon that we didn’t hold hands or otherwise show affection in public. But why shouldn’t we? The answer lies in that word just used: acquiescence is not genuine acceptance.

Into this dialogue comes the powerful voice of William N. Eskridge, Jr. in his new book “Dishonorable Passions: Sodomy Laws in America, 1861-2003” (Viking). Eskridge is the John A. Garver Professor of Jurisprudence at Yale Law School. Openly gay, he has published a series of law journal articles that reveal a remarkable capacity for precise research on the social context of America’s nefarious sodomy laws. In his earlier published books, which sought a more general audience, Eskridge had seemed to ally himself with the radical gay faction. Now, it seems, he has morphed into something like a social conservative.

Eskridge believes that gays are being held back by formidable reserves of disgust and fear of social pollution. These stark terms, for which he offers little documentation, seem to me to go too far. Still a mass of reservations, all the more persistent for not being (often) avowed, linger among the general public. As Eskridge puts it, many have not been able to bring themselves to acknowledge that homosexuality is a b e n i g n variation. Legally speaking, we may dot every i and cross every t, but in the end the best we can hope for is a kind of cold peace. The reservations that most straights feel towards us will persist.

There is, Eskridge believes, some possibility of mitigating these sentiments. The poster people for his book are a gay professional couple, Steven Lofton and Roger Croteau. In a stable relationships for some twenty years now, Lofton and Croteau, who are white, have adopted three black HIV children, providing them with a secure and loving home. The couple had to leave Florida because that state regards gay people as unsuitable to serve as foster parents. Lofton and Croteau are admirable individuals, but not everyone can follow in their footsteps. Nonetheless, Eskridge believes that all gay and lesbian people must somehow “pay their dues,” so that we can deflect the disapproval that straights continue to harbor against us.

In a pivotal sentence (p. 382) Eskridge makes the following point. “Lawrence [the 2003 Supreme Court decision] should . . . be understood as a challenge for gay people. Recalling an old-fashioned conception of citizenship as entailing obligations as well as freedoms, Lawrence should stir LGBT people to commit themselves to families, communities, and institutions (including religious ones) from which they have been alienated because of sodomy laws, social stigma, and other disabilities.”

I readily confess that I am one of those who has been so alienated. I don’t see why I should now have to commit myself to a family or a religious institution in order to secure my full civil rights. Still, I would agree that it would help if substantial numbers of gay and lesbian people did so.

But how much would it help? The disgust that homosexuality evokes is a product of several layers of experience and ideology. Ultimately, it is religiously based, since the Bible presents toleration of homosexual behavior as a danger to the body politic. (Yes, I know that John Boswell and others have sought to erase the sting of these texts. For most religious people, however, the sting persists.) Then a wave of psychotherapy crested fifty years ago. Even though most psychiatrists have changed their tune, the notion persists that same-sex behavior is somehow abnormal. Finally, there was the AIDS crisis. Drugs are helping a great many HIV people to lead productive and rewarding lives. And yet, allowing for some monocausal exaggeration, gay people are centrally implicated in this disease, and they will continue to be so perceived.

In short the likely scenario is that in the long term gay and lesbian people will experience a kind quasipariah status. The laws that have been holding us back will finally be abrogated. Vicious name calling, of the sort that prevailed until recently, will be unfashionable. But still, for the foreseeable future, “virtually normal” will be the best we can claim.

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