Gaylaw: Challenging the Apartheid of the Closet.

• Author: Massaro, Toni M.
• Position: Review

GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET. By William N. Eskridge, Jr. Cambridge: Harvard University Press. 1999. Pp. ix, 470. $45.

The last few decades have seen a torrent of legal commentary supporting gay equality and attacking the punishment, failure to protect, and refusal to affirm gay conduct and identity. William Eskridge,(1) a prominent voice in this fin-de-siecle literature, now draws together and expands on his previous work(2) in Gaylaw: Challenging the Apartheid of the Closet. Though far more successful in shaping the uses of the past than in showing the way to the future, the book instructs even where it fails. It augurs a century that could well witness the end of official discrimination against gay individuals, and the relegation of "gaylaw" to American legal history.

Eskridge builds his chapters around three discrete definitions of gaylaw:

* "Gaylaw is the ongoing history of state rules relating to gender and sexual non-conformity" (p. 1).

* "Gaylaw is, also, reconceiving law from a more gay-friendly or gay-neutral perspective" (p. 2; emphasis added).

* "Gaylaw is, finally, derived from insights of the gay experience in America and its theoretical sibling `queer theory'" (p. 2; emphasis added).

Under the first two definitions, he offers an excellent synthesis of the historical backdrop to modern laws and a cogent analysis of legal doctrine that addresses antigay policies. He makes a convincing case against these policies as well, given their frequently unpredictable, untoward consequences. Leaving behind the historical and pragmatic arguments, however, Eskridge plunges into a theoretical thicket in forging his third definition of gaylaw. He makes internally contradictory appeals to liberalism and to various postliberal models that undermine his doctrinal arguments, many of which depend heavily on liberal premises.

That the book works so well in its historical and doctrinal segments, but is less convincing in its final, theoretically thick segment, may suggest a technique for future gay equality appeals. Legal advocates might do well to underscore, as Eskridge does repeatedly and persuasively, how prohibitions of private, consensual sexual behavior often produce paradoxical, counterproductive results. Government regulation of private sexual behavior typically proves to be wasteful, senseless, and destructive, no matter what outcome one prefers regarding the behavior. Techniques that stress this practical insight may yield far more progress in overturning antigay regulations than would techniques that rely heavily on ornate political or legal theories about government power to regulate sexual behavior. There is much to support such a case against antigay laws in Eskridge's well-documented and well-wrought historical exposition.

I.

Eskridge's opening segment canvasses a full century of legal treatment of sexual nonconformity in the United States. This engaging, concise survey addresses government's historically variable attempts to regulate sexual conduct and identity in multiple settings, including the military, the family, social clubs and bars, and the streets. In each venue, American law in the 1900s sought to suppress homosexuality and gender transgression, with uneven, sometimes brutal, often ineffective and paradoxical results. Over the century's course, law's constructions of sexual deviance, and of the social perils of gender transgression, varied significantly.

Pre-1900, the law sought to police the "[w]omen and men who transgressed increasingly hardened gender lines" by arresting individuals whose public presentations disrupted conventional gender rules (p. 13). After World War I, however, the legal focus shifted away from this aesthetic preoccupation with public displays of transgressive gender behavior toward regulation of the "uncontrollable libido" of the homosexual (p. 14). The fear that animated the law was that "children's budding sexuality" (p. 14) would be exploited or corrupted if homosexuality were to go unchecked or unpunished; the prevalent legal image of the homosexual became that of sexual aggressor. During this period, "[t]he vampire lesbian and the predatory child-molesting (male) homosexual replaced the mannish lesbian and the female impersonator as the object of popular and legal concern and, starting in the 1930s, hysteria" (p. 14).

World War II arrested the mounting "hysteria," as the inevitable intensities and single-sex stratifications of military service relaxed customary social barriers, including those between same-sex colleagues. Greater tolerance of male bonding, and a shift in the national gaze toward foreign conflicts rather than domestic, intersocial ones, made American life--temporarily--less sexually fraught. Soon after the War, however, the federal government reasserted gender barriers with a vengeance, and launched an aggressive, anti-homosexual "Kulturkampf" that Eskridge parallels to Nazi Germany's antihomosexual Kulturkampf of 1933-1946 (p. 14). Federal officials drummed homosexuals out of public office, policed heavily known sites of gay congregation, expanded and enforced laws that criminalized sexual variation, and otherwise asked, told, and legally pursued gay men and lesbians.

Yet even a Kulturkampf could not eliminate homosexuality. Instead, it drove the behaviors underground, and in one of the many ironies that mark official attempts to criminalize sexual behavior, it "mold[ed] the context of the double life," and actually may have fostered the very behaviors it most strenuously sought to eradicate (p. 54). As Eskridge observes:

[B]y teaching thugs that they could have their way with fairies without accountability, the law encouraged their sadism; by teaching fairies that they were subhuman, the law inculcated in some of them a victim mentality of masochism. For most other homosexuals, the law was less brutal, but it still augmented the excitement of same-sex intimacy by rendering it an intrinsically outlaw form of love. [p. 54] The laws also inspired social organization and, eventually, resistance. Concerted action against the negative attitudes toward homosexuality, and against the most oppressive legal rules, emerged in the 1960s. In 1961, Franklin Kameny founded the Mattachine Society of Washington,(3) and, at the decade's close, the Stonewall riot erupted.(4) Gay rights leaders began to vocally and publicly reject the closeted lives the laws had produced, on the ground that "the closet" was "nothing more than an `apartheid' ... that intrinsically denies equal citizenship and human dignity" (p. 15). Lawyers began to challenge the aggressive police surveillance of gay meeting places and intrusions into private zones, as their clients sought control over public spaces, institutions, and communication methods crucial to gay association and culture, for example, bars and restaurants, social and educational organizations, and literature. They likewise demanded, with far less success, equal treatment in employment, military service, immigration status, and family rights (p. 15).

Building on Warren Court decisions that expanded concepts of substantive due process (pp. 83-86), procedural due process (pp. 86-92), freedom of association (pp. 93-95), freedom of speech and press (pp. 95-96), and equal protection (p. 97), these litigants slowly earned isolated, narrow victories that began to disentangle the law's conflation of gay status, speech, and conduct, as well as its unreflective punishment of all three. As Eskridge later explains, early victories required police and prosecutors to observe due process, and expanded speech rights of activists. This helped pave the way to the current, highly unstable doctrinal moment, in which official discrimination based solely on one's status as gay or lesbian is constitutionally suspect,(5) but criminalization of the underlying conduct that is most strongly associated with that status is arguably allowed.(6)

In setting forth this highly compressed synthesis of American law from 1881-1981, Eskridge ably compiles and deploys numerous accounts of these historical periods. He also offers fresh insight into these histories by focusing on the considerable evidence of nonenforcement of laws regulating sexual conduct. As Eskridge notes, the most repressive laws, passed during the most repressive eras, were "honored mostly in the breach" (p. 82). Even during the straitlaced, aggressively anti-homosexual 1950s, there were voices opposing these measures, as proven by the notable example of the prestigious American Law Institute's vote to decriminalize consensual sodomy in a tentative draft of its Proposed Penal Code (p. 84); deregulatory and nonenforcement impulses always coexisted alongside the strongest regulatory and enforcement impulses.

This leads to a relevant and intriguing question that often is underexplored in historical accounts of antigay regulation: Who wasn't prosecuted (and why)? Eskridge, significantly, addresses this puzzle and observes that race and class often influenced whose sexual nonconformance was (and still is) allowed to go unnoticed, and whose was (and still is) not. He notes that law does not always prosecute those who "flaunt" their sexuality; sometimes it does, and sometimes it does not. Homosexual men are, Eskridge scoffs, "ridiculously easy to catch" (pp. 65, 227). Yet "for every homosexual arrest there were tens of thousands of unarrested homosexual acts" CP. 82; emphasis added). Why?

Eskridge's simple and sensible answer is that full enforcement of the anti-homosexual measures "would have been grossly expensive to carry out properly, rested upon questionable and sometimes wacky ideas, and -- critically -- included middle-class white men in [their] dragnet" (pp. 82-83). Moreover, the enforcement of these laws often had ironic, boomerang results: "[These laws] generated [their own] opposition" by outing gay people, creating "shared identity" among them, and...