DOASKDOTELL BOOK REVIEW of William Eskridge’sGaylaw” and some of his other books


Author (or Editor): Eskridge, William, Ph. D. 

Title: Gaylaw: Challenging the Apartheid of the Closet

Fiction? Anthology?  

Publisher:  Harvard University Press

Date: 1999

ISBN:  ISBN 0-674-34161-9  470 pp, hardbound

Series Name:

Physical description: hardbound

Relevance to DOASKDOTELL: Legal issues for gays

William Eskridge (Yale Law School ) is already well known for his 1996 book, The Case for Same-Sex Marriage (Free Press).  Here he presents a monumental opus, in which he traces the gradual, if irregular path, to individual rights for gays and lesbians in American society, particularly as expressed in American laws and jurisprudence.


The book is chronological, and it is organized into three Parts: (1) "The Apartheid of the Closet"; (2) "Remnants of the Closet (Don't Ask, Don't Tell)"; (3) "After the Closet: Queer Theory and the Sexual State."  These Parts each divide into three chapters, comprising a "nine movement symphony."  About 130 pages are dedicated to tables showing state and municipal laws and various statistics, as well as end-notes (which unfortunately are not printed on the pages where they are referenced).  Besides my DADT book, Tafel's, and to some extent David Mixner's Stranger Among Friends, this is one of the few books that provides a narrative, complete chronological history of what we colloquially call "gay rights" up to present day, and Eskridge reaches way back into the 19th Century.   However, Eskridge's is an academic work, from the university world.  It obviously appeals to researchers, but loses some of the dramatic effect that books can have when authors don't leave themselves out of the narrative. Indeed, getting Eskridge's basic message down to a statable paradigm will be difficult.  (And a note on his title: "Gaylaw" is also the name of an organization in Washington, D.C. advocating equal rights for gays in the legal profession; I had attended many of its functions before moving to Minnesota.)


Eskridge (who I thought was politically a pretty mainstream Democrat¾nothing wrong with that!), however, shares my rather "libertarian" interpretation of "gay rights."  Indeed, in a few places, he refers to the ideological foundation of our national documents and legal system as "libertarian," and he sees the state, a long with the capacity of the "powers that me" to capture the state for their own purposes, as the main instrument of gay oppression.  The inference is that a truly free people, left on its own, has little reason to isolate and stigmatize gays (as he pointed out when discussing Native Americans in his same-sex marriage book).  


The use of the state to denigrate those who are sexually or emotionally different developed and intensified late in the 19th Century and for about the first 2/3 of the 20th, through the Industrial Revolution, two World Wars, and the start of the Cold War. And just what were people afraid of, with their "homophobia"? It can be hard to pin down. Eskridge points out that the increasing economic independence of women may have been a major catalyst, spawning male fears.  I've talked about the "moral" paradigm in my own book (social obligations, male fungibility and initiative, family values, and the like), but this is more a "how" than (as a historian like Crane Brinton would say), a "why." I suspect that the "establishment" (most of all, organized religion) sensed that homophobia could be a very effective political tool with which to keep the "masses," particularly relatively uneducated and intellectually simpleminded young men in their labor forces, in line.  After all, for a young man who doesn't have much else to live for, anything that devalues penetration and sexual initiative brings up the fantasy of eventual emasculation and death; a culture of "obligatory heterosexuality" for men provides the perfect sweet lemons (or sour grapes, perhaps).  Eskridge's version of the "How" is provided, perhaps, when he discusses the "relational self" and the way society tries to channel or mold that into socially "useful" and stable pursuits; yet, he maintains, sexual orientation is so fundamental a trait that it operates independently of a person's relationality, as long as society permits the person to make commitments to others (as in the family, marriage, parenting, service). Eskridge, curiously, calls homophobic thought, rather than homosexuality itself, "narcissistic." 


And there is the matter of the Closet, a kind of Pivot for Eskridge's organization of his material. For in earlier times (say the Truman-Eisenhower 50's), your "private life" very much mattered.  The closet was not to be tolerated; people were to be hunted down and exposed. (as during the purges of federal employees and the publications of those arrested in police raids of gay bars).  I remember that my father warned me as I commuted evenings to New York City to visit the Ninth Street Center, away from by suburban, market-sensitive job with a computer manufacturer, "they'll have you followed!"  They never did. Later, the Closet would seem to upper-class gays almost like a refuge that allowed them their "privacy."  Hence, the temptation for a Bill Clinton of a "Don't Ask, Don't Tell" for gays in the military. Ultimately, though, the "privacy" shield ("I don't want to know about it") would be perceived as antithetical to expressive free speech and the spirit of what Eskridge calls, as the title to one chapter, "the Sexualized First Amendment." Eskridge provides a section, "Libertarian and Autonomy values" which starts with saying:


"The first amendment protects the individual's freedom to explore and develop her or his identity. In this way, the Constitution assures that the state may not seek to control a person's thoughts or beliefs, those intellectual characteristics that are essential to our evolving personhood." 


One could argue (and I don't recall that Eskridge explicitly says this) that, to the extent that a "don't ask, don't tell" closet is viewed as an acceptable social compromise, gays will feel morally justified in rejecting commitments and the penumbra of "family values" as just a symptom of heterosexism; openness about sexual values and personal values can actually rebuild a culture of commitment to others.


Eskridge makes an enormous number of interesting historical points and poses a large number of Socratic legal problems.  I'll mention some of them, ad hoc.


Cross-dressing (trans-gendered "behavior," if that is a misnomer) was at one time considered to be a form of "gender fraud"; men were trying to get out of their "responsibilities," and women would be perceived as trying to usurp the "privileges" of maleness.


For example, the idea of the "mutually protective closet" started to come into question as early as around 1961 (my William and May debacle) with Frankin Kameny's founding of the Mattachine Society of Washington.


The draft was actually reinstituted in 1940, before WWII. Many people have the impression that it had gone on continuously since WWI.


Most state sodomy laws were actually passed after WWII, between 1947 and 1961. The Miller Act in 1948 created the first sodomy law for the Washington, D.C. (under the jurisdiction of Congress -- remember the "home rule" controversy!)  The 50's saw a tremendous wave of entrapment to arrest gays for adult consensual "crimes." Eskridge provides a painstaking analysis of the due process ("fundamental right to privacy"), free speech, originalism, status v. conduct, and equal protection arguments that may be applied to sodomy laws. He even goes far enough to rebut the idea that HIV can provide the state a rational basis (or more) for such laws (AIDS is never mentioned in Bowers v. Hardwick).


"The primary deterrent effect of sodomy laws is to keep sex in the closet, hidden and underground, precisely the terrain that bred and spread HIV in the late 1970's and 1980's."


As for free speech, gay publications, because of the example set by "Comstock" laws in the 19th Century, came under censorship and US Postal Service inderdiction, a prelude to modern day attempts to regulate Internet content.


The state has tried to prevent gays from congregating, with its harassment of gay bars in several states, particularly between 1959 and 1962. (I'll add, that during my 1970's association with GAANJ, the suburban Gay Activists' Alliance of New Jersey, I heard the story, perhaps an urban legend, that a kid had been attacked in a restroom at the 1964 World's Fair, and thereafter for a few years, ever gay bar that opened in New York was closed down once it was discovered, until the police were paid off -- hence the origin of the "Mafia Bar."  Eskridge spends some space on the facility of pretending to "protect children" in the law.)  The IRS has in the past tried to deny tax-exempt status to gay organizations for promoting "immorality."


Eskridge does provide discussion of the "right to marry," perhaps to follow up on his earlier book and to build upon similar ideas by Andrew Sullivan.  We could say that marriage confers privileges which may arduously be given to gay couples through "domestic partnership" without (for political reasons) using the "word. Eskridge develops a concept that he calls "families of choice," to be compared with earlier generations' ideas of concepts of inter-generational families based upon blood with unchosen obligations to care for non-self-sufficient older family members as well as to raise children.


Eskridge has an interesting take on anti-discrimination bills like ENDA. He maintains that the state (particularly with its outing of gay people in earlier decades and denying them government employment, security clearances, and, still, military service) has contributed to private discrimination against gays and, to right its complicity, would have "a moral and perhaps political justification for ENDA."  On the other hand, he recognizes that ENDA can compromise legitimate "nomic" free speech, expressive of the values of a socially or culturally cohesive group.  


There is a parallel between statist persecution of gays and the persecution of Mormons in the 19th Century, and between the "moral" disapproval of gay social values and of the values of "fundamentalist Mormons" who in earlier decades had openly promoted polygamy.  Both problems can be analyzed in different ways even in "liberal" and in "feminist" perspectives.  It is possible to regard gay communities (and also trans-gendered communities) as "nomic" communities, just as one can so view religious communities.  Free speech for these communities takes upon a "group" aspect which is a very important component for political and social effectiveness (as Kenneth Sherrill had argued in Steffan v. Aspin, as in Marc Wolinsky's legal anthology on the Steffan case, Gays in the Military).  Several court cases have tested the constitutional precepts of balancing free speech against preventing discrimination, such as Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) and Robert v. U.S. Jaycees (1984).  Apparently, Eskridge went to press before having a chance to analyze James Dale v. Boy Scouts of America, especially with respect to the "Roberts" v. "Oconnor" rules, which Queersoup analyzes.


Mr. Eskridge has authored many other books about the law and civil liberties, including others about same-sex unions.

The best known are

The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment. New York: Simon & Shuster, 1996. ISBN: 0684824043 This book emphasized the social value of same sex commitments, much as does Rauch, and it was important during the debates in Hawaii and Vermont in the mid to late 1990s.

Equality Practice: Civil Unions and the Future of Gay Rights. New York: Taylor & Francis, 2002. ISBN: 0415930731

 a recent one of great importance being Gay Marriage: For Better or Worse? What We’ve Learned from the Evidence (London: Oxford University Press, 2006) ISBN: 0195187512  This book is discussed in a CATO forum on this file:    The book certainly challenges the claim that in Europe gay marriage and gay civil unions have discouraged heterosexual marriage.

William N. Eskridge, Jr. Dishonorable Passions: Sodomy Laws in America: 1861-2003. New York: Viking Adult, 2008 ISBN 978-0-670-01862-8, 514 pages, hardcover, extensive notes and index and appendix. Introduction, twelve chapters, appendix with details by state. Actually, Eskridge starts his history in colonial times, but the legal questions around sodomy laws and liberty interests gradually developed after the 14th Amendment. Eskridge believes that the historical “moral” roots of sodomy laws, however religious or puritan, tend to be abstract, with notions like “disgust”, “pollution”, and “destabilization”, sometimes venturing into concerns about narcissism and the deviation away the social use of sexuality for marriage and procreation, with some lack of faith in the individual left on the loose. The ideas of Freud came into play. Toward the end of the book he discusses Bowers v. Hardwick (1986) and Lawrence v. Texas (2003).  

Blogger discussion.

Related: Jonathan Rauch: Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America


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