Author (or Editor): Eskridge, William, Ph. D.
Title: Gaylaw: Challenging the Apartheid of the Closet
ISBN: ISBN 0-674-34161-9 470 pp, hardbound
Physical description: hardbound
Relevance to DOASKDOTELL: Legal issues for gays
William Eskridge (
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
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
"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
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
"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
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:
Equality Practice: Civil Unions
and the Future of Gay Rights.
one of great importance being Gay
Marriage: For Better or Worse? What We’ve Learned from the Evidence
William N. Eskridge, Jr. Dishonorable Passions: Sodomy Laws in
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