Gaylaw: Challenging the Apartheid of the Closet.

• Author: Carpenter, Dale
• Position: Review

GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET. William N. Eskridge, Jr.(1) Harvard University Press. 1999. Pp. 512. $45.00.

The world into which Gaylaw arrives is one whose poles are very far apart. At one pole, a man fatally fractures his dog's skull by beating him with a plastic vacuum cleaner accessory and then throwing the dog against a tree trunk.(3) Why? The man concluded the dog was homosexual after he saw the poodle-Yorkshire terrier mix repeatedly attempt sexual activity with another male terrier.(4) At the man's subsequent trial for animal cruelty, a veterinarian testified that such behavior in dogs is a common way for them to assert dominance, rather than necessarily a sexual act, much less evidence of a homosexual orientation. It's a measure of how deeply rooted shame and hostility about homosexuality are that, in the eyes of some, even a mutt's behavior is imbued with negative sexual significance in need of a corrective.(5)

At the other pole, five days after the Associated Press reported the gay dog-killing, a "civil unions" law took effect in Vermont. Pressured by the state supreme court to equalize benefits for gay couples,(6) Vermont's governor signed a bill guaranteeing to registered same-sex couples all of the rights, privileges, and responsibilities available to married couples under state (though not federal) law.(7) What separates gay couples from straight couples in the eyes of the state of Vermont is a word--"marriage"--and nothing more. It's a measure of how far the law has come in its disposition toward homosexuality that an American jurisdiction now has the most nearly equal legal regime for gay couples that has ever existed.(8)

Between these poles lie large continents of ignorance and understanding, of fear and acceptance, of shouted insults in high school hallways, of soldiers beaten while they sleep, of couples together for decades yet still strangers to the law, of religious people who love and irreligious people who hate, of law that forces separation and law that forces togetherness, and of everything in between. It is a varied terrain, hard to map and harder to mold, yet the tectonic plates underneath it are unmistakably shifting.

Part of Professor William Eskridge's mission in Gaylaw is to describe the historical development of the complex legal and, to some extent the cultural, landscape for gays. (pp. 17-137) His presentation makes it clear that it's very much a modern world, meaning that its features are young. Given Eskridge's analysis, the poles described above could not have existed a little more than a century ago. It is unlikely that a man of 1865 would have beaten his dog for being "homosexual," since the word and perhaps the concept did not exist at the time.(9) It is more unlikely that a state in that year would have fully sanctioned an intimate relationship between two people of the same sex. Though not much of Eskridge's presentation of the history of American law's treatment of gays draws from original research, its synthesis of the available secondary sources is a useful contribution and will likely become a staple of classes treating the subject.

The larger part of Gaylaw is an argument for moving the continents, or perhaps for reshaping them. This is the book's greatest challenge and the place where Gaylaw will draw the most fire. Eskridge offers some fairly standard but nonetheless powerfully-reasoned arguments that the right of privacy should be applied to protect individuals from criminal sanction for consensual sodomy. (pp. 152-73) He makes an intriguing but incomplete case that state criminal prohibitions on sodomy run afoul of the First Amendment. (pp. 176-202) On Eskridge's view, the Equal Protection Clause should invalidate a wide range of laws discriminating against homosexuals. (pp. 207-31) Finally, he urges that the similarities between religion and homosexuality should lead to greater constitutional solicitude for the latter. (pp. 296-302)

In the process, Gaylaw leads readers on a tour of the familiar battlefields of the culture war: rape, employment discrimination, obscenity, adultery, prostitution, pornography, sadomasochism, intergenerational sex (pedophilia and pederasty), polygamy, maternal surrogacy contracts, and public sex. It's all there.

The theoretical goal for Eskridge is to craft an approach to constitutional and policy issues that borrows heavily from feminism but is marginally distinct from it in outcomes and rationale. This approach, which Eskridge calls "gaylaw," differs from what Eskridge calls "regulatory feminism" chiefly in its deep, across-the-board distrust of state sexual regulation. Thus, gaylaw criticizes prohibitions on prostitution, sado-masochism, pornography, and some intergenerational sex that regulatory feminism supports. It is, with a slightly libertarian twist, the dominant approach in gay-sympathetic legal scholarship. Gaylaw is pro-sex feminism.

At the same time, gaylaw sees state regulation of sexuality, including the resultant creation of a closet into which gays retreat, through the feminist prism of gender. Eskridge undoubtedly believes that approach is amply justified by, among other things, the history he recites. He views anti-gay prejudice as indistinguishable from sex discrimination both doctrinally and theoretically because the two prejudices are linked. He conceptualizes sexual nonconformity as a species of gender nonconformity.

There are clear doctrinal advantages to the sexual-nonconformity-is-gender-nonconformity model. If discrimination by government, as in the marriage laws and in laws forbidding same-sex sodomy, is sex discrimination then it is subject to heightened scrutiny and probable invalidation across a broad range. Further, statutes prohibiting private sex discrimination (in employment, for example) should be interpreted to prohibit sexual orientation discrimination as well. (pp. 231-33)

The model also has undeniable factual and historical resonance. Traditional views about the place of men and women in society have certainly fed anti-gay sentiment. Scratch a sexist and you almost always find a homophobe, and vice versa.

But the model proves too much and accomplishes too little. It overemphasizes the undeniable overlap between sexual rebellion and gender rebellion, including the state's past attempts to suppress them both. That overemphasis misunderstands gay life because it reduces it to one part. It misses the constitutive role law plays in gender rebellion. It allows the opponents of gay equality to set the terms of the debate. And it fails fully to account for and to engage the many non-sexist arguments now advanced against gay equality. The gain--allowing gays to share with feminists an identity of gender oppression--may not be worth the pain.

Gaylaw is an admirable attempt to liberate us--gay and straight--from what Eskridge calls in the book's subtitle, "The Apartheid of the Closet." Yet it turns out that in subtle and unintentional ways Gaylaw manages to liberate from a closet what it then confines to a prison. It is an "identity prison", to borrow Eskridge's useful phrase, (p. 7) one that has the virtue of being roomier than the old closet but the vice of being another confinement.

Nevertheless, Gaylaw is a clear and soberly written(10) argument, a powerful accomplishment that both reflects and reinforces what have become some of the principal approaches to legal scholarship in the area.(11) It manages to connect contemporary discrimination against gays with the extensive historical record of such discrimination. And it envisions a moral dimension to gay equality that is both provocative and refreshing. For those reasons alone, it cannot be ignored.

1. GAYLAW'S HISTORY

   "The modern regulatory state cut its teeth on gay people," Eskridge writes. (p. 43) Gaylaw chronicles, in detailed fashion, the often cruel ways in which it did so. More than just a tale of woe, however, Gaylaw also shows how the decentralized structure of American government and the country's libertarian leanings undermined the campaign to repress homosexuals.

   1. MUNICIPAL, STATE, AND FEDERAL REGULATION: 1880-1946

      Eskridge begins his history of the legal regulation of same-sex intimacy in America with the period after 1880. On the one hand, this seems an odd starting point since many states had laws prohibiting "crimes against nature," "sodomy," and "buggery" well before that time, as Gaylaw's useful Appendix A1 demonstrates. (pp. 328-37) (listing dates of first sodomy laws for each state, starting in 1610) There is a history of the pre-Civil War interaction of law and "sodomitical sin,"(12) but only brief references to it can be found in Gaylaw.

      On the other hand, the pre-Civil War laws were vague and there seems to have been little public concern about them, much less a concerted effort to enforce them. New York City, for example, prosecuted a mere twenty-two sodomy cases between 1796 and 1873. By 1900, the city prosecuted more than twice that number every year. (p. 25) Even accounting for population increases, that's a dramatic rise.

      Moreover, prior to the Civil War, the law concentrated on prohibiting acts without conceiving the people who committed them as a type of person. An analogue today might be handedness. We know people who are left-handed, deviating from the mathematical norm of right-handedness, but we do not have a word for "left-handed people,"(13) do not see them as having a separate identity based on handedness, and do not attach any legal, social, or moral significance to their deviant dexterity.

      After the Civil War, the country became increasingly industrialized and, with that, urbanized. Large numbers of people moved to cities from small towns and rural areas. Cities, in turn, offered relative anonymity and separation from extended families. At the same time, large cities at once brought together people with varying sexual desires and offered more opportunity to satisfy them...