GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET by William N. Eskridge, jr. Cambridge: Harvard University Press, 1999. 470 pp.
Reviewed by Evan Gerstmann, Department of Political Science, Loyola Marymount University.
William N. Eskridge has written a formidable, informative and important book. It should be of interest to all legal and political scholars, even those who do not think of themselves as interested in "gaylaw" -- that is laws "relating to gender and sexual non-conformity" (p. 1). This book is far broader in scope than other books of comparable quality. Further, it is a clearly written and an exceptionally courageous book that stakes out daring positions on law, politics and sexuality without seeking the cover of obsfucating academic jargon.
GAYLAW is divided into three parts, which can be roughly characterized as discussions of the legal regulation of gender and sexuality in the past, present and future. Part I takes the reader from the 1800's to 1981. This broad historic scope yields many insights. Although the gay rights movement has often been compared to the African American civil rights movement, we see that both anti-gay oppression and the gay resistance have followed a very different trajectory from that of the struggle for racial equality. African- Americans were still plagued by slavery and then by the Reconstruction era battles in the 1800s. But for gays, the nineteenth century was far from the worst era of oppression. "Although society gave same-sex intimacy no sanction, neither did it impose legal penalties" (p. 19). Although sodomy was illegal in many states, the relevant laws typically mentioned this practice as part of a laundry list of sundry immoral practices including abortion and "keeping a disorderly house" (p. 19). Indeed, a primary concern of this period was not sodomy but cross-dressing.
This situation changed dramatically in the twentieth century as increased urbanization and the two World Wars altered the sociological landscape. During the World War I period, "the law began seriously to focus on homosexuals as a regulatory class apart from other gender-benders" (p. 54). During the post-World War II, Red Scare persecution of gays became widespread and shockingly vicious. Under laws declaring homosexuals to be "sexual psychopaths," gay men were institutionalized and subjected to practices more often associated with the Third Reich than with America:
Almost half of the first one hundred sexual psychopaths adjudicated in New Jersey were convicted of lewdness (homosexual overtures), sodomy, and fellatio. Few of the jurisdictions had the facilities to treat people committed as sexual psychopaths, and where they did the experience could be hellish. The most famous institution was California Atascadero State Hospital, opened in 1954 and since known as 'Dachau for
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Queers.' There and elsewhere, people convicted of consensual sodomy as well as child molestation were subjected to lobotomies, electrical and pharmacological shock therapy and 'asexualization,' or castration, authorized by a 1941 law (p. 62).
One of the interesting aspects of Eskridge's history is that the legal community often comes across as a bastion of sanity and moderation as compared to the police and the political system. "[T]he prestigious American Law Institute narrowly voted in May 1955 to decriminalize consensual sodomy in a tentative draft of its proposed Model Penal Code" (p. 84). Appellate courts also resisted prosecutions of homosexuals that were based on vague statutes such as those prohibiting "solicitation" and "disorderly conduct."
However, GAYLAW also illustrates how little protection the law can provide for those who are most despised by society. During the 1940s and 1950s, procedural legal protections were of little use to prosecuted homosexuals because "out of fear of further exposure, almost everybody pleaded guilty to charges of lewd vagrancy, degeneracy, and sodomy, and they pleaded guilty at higher rates than defendants did for similar crimes such as vagrancy, disorderly conduct and rape" (p. 87).
Eskridge's section on the beginnings on gay resistance should be of great interest to those scholars who follow the "Hollow Hope" debate over the power of the courts to bring about genuine social change. This section, and later ones, describes the synergy between gay political resistance and the limited but real legal protections that emerged in the 1950s and 1960s:
Just as gay people were becoming politically mobilized, the Warren Court was giving the first amendment teeth, protecting the rights of Communists and African Americans to associate and criticize state policies. The Court was building a first amendment tradition defined by its willingness to protect unpopular groups. As one judge put it, 'Even homosexuals and reprobates who prey upon their hapless condition are entitled to find refuge in [constitutional] dictates. Freedom of association is one of them. Freedom of expression is another.' This statement, by the way, came in a dissenting opinion. The first amendment was not THAT empowering to homosexuals, but it did assure them some breathing room to socialize and organize (p. 93).
Another interesting aspect of Eskridge's history, one that has been addressed by Richard Posner in another review of the book, is how much of gay legal progress is not the result of legal decisions regarding "gay rights." Rather, gay and lesbian legal victories came as a result of the expansion of constitutionally based civil liberties such as freedom of speech and association and due process. This is a point worth emphasizing in this modern era, where in the context of debates over women and pornography and hate speech and hate crime laws, it has been increasingly common to assert that there is a conflict between civil liberties and civil rights. Eskridge's history reminds us that when constitutional principles of free speech or due process are diluted in the name of the social good, it is often marginalized persons who suffer most.
In Part II, "Remnants of the Closet (Don't Ask, Don't Tell)", Eskridge turns our
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attention to what he views as the most important gay rights issues currently on the table. He discusses the military ban on openly gay and lesbian and service members, family issues such as marriage and adoption, the continued criminalization of sodomy in many states, and issues of job discrimination. Although of these issues is interesting and important in and of itself, Eskridge's broader argument makes Part II especially worth reading. He argues that changes in public law are driven, although not predetermined, by changes in social and political power and attitudes. However, he avers that public law can also be an independent variable affecting the national discourse about same-sex intimacy and the real-world social experiences of minority groups.
Probably no modern scholar would claim that law is the "unmoved mover" that drives social change while being driven only by internal legal reasoning. Yet, the social science pendulum has probably swung too far, with so much scholarship emphasizing law's inability to bring about social change, the public's ignorance of what the courts do, and the role of judge's political attitudes in creating legal doctrine. The area of gay rights shows how complex the interaction between law and sociopolitical attitudes really is. My own research, for example, has shown that legally based rhetoric profoundly altered the political discourse over gay rights in Colorado during the 1992 elections. Eskridge convincingly argues that the Warren Court laid the legal foundation, particularly with respect to the first amendment, for post-Stonewall activism. "Without the Warren Court rights in place, gay people would have been much more fearful about coming out, and the police and the censors would have been a lot more bold about suppressing gay groups" (p. 145).
Because gay rights is a cutting edge legal area, it offers particularly rich insights in the power, limits, and complexity of the law and its relationship to society. Regrettably, the mainstream social science and legal communities are squandering much of this opportunity. Because of an unfortunate ghettoization of the gay and lesbian subfield, little attention is being paid to gay rights scholarship by the mainstream academy, even when that scholarship makes important contributions to broader debates in law and social science. For example, papers delivered at political science conferences that analyze gay rights issues, are most likely to be assigned to panels that deal exclusively with gay rights. This is often true even when the various papers on the panel have little in common in terms of methodology or in terms of the broader questions implicated by the papers. The creation of an infrastructure for gay and lesbian issues within most social science conferences and associations was an important step in making certain that gay and lesbian issues were not ignored. However, today they have the unfortunate effect of dampening the dialogue between scholars interested in gay rights and those scholars who have no specific interest in the subject, but who are the best audience for a paper on, for example, the questions Eskridge raises about the law's impact on minority social movements.
Similarly, books related to gay rights are usually marketed in the "Lesbian and Gay Studies" section of bookstores, keeping them from the view of scholars who are interested in their broader themes. This is not to say, of course, that conference panels and bookstore sections on gay and lesbian issues are no longer useful, but we must pay attention to fact that they may be preventing books such as GAYLAW from reaching all
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of the audience that would benefit from its history, arguments and insights. Certainly, if this book reaches the fuller audience of general readers and scholars interested in the role of law in shaping social discourse, political movements and social change - the kind of audience interested in the issues raised by Gerald Rosenberg's THE HOLLOW HOPE (1991) for example - this would be an important step in the right direction.
Part III of GAYLAW, "After the Closet: Queer Theory and the Sexual State," will no doubt generate explosive issues. In this part, Eskridge seeks to apply the insights of gay experience and queer theory to the jurisprudence of sexual regulation. He defines "queer theory" as follows: "Queer theory starts with the assumption that gender, sexuality, and perhaps even sex are social constructions and not natural givens" (p. 444).
Eskridge forthrightly takes on many issues of sexual regulation that are often avoided such as consensual sadomasochism. He decries the judicial unwillingness, both here and in Britain, to give legal recognition to the consent given by the parties to this practice. Part III addresses a broad gamut of gaylaw issues including same-sex marriage and the right of gay and lesbian parents to retain custody of their children.
Even more boldly, he questions the wisdom of laws against sexuality between adults and children. "The law's deepest closet involves the sex lives of children and the ways in which adults interact with their budding sexuality" (p. 264). Since this issue is so explosive, the remainder of this review will concentrate on it, in order to give a reasonably full and fair description of Eskridge's arguments. Whatever one thinks of the issue, Eskridge deserves great credit for addressing such a deeply taboo subject in a straightforward and scholarly manner. He argues that current law is premised on empirical assumptions that are probably not accurate, such as "long-held notions that prepubescent children are not sexual, that masturbation is either unnatural or unhealthy for children, and that children do not have orgasms" (p. 265).
He also attempts to shed a different light on "the well-reported phenomenon that a child is typically troubled and often traumatized by sexual experience with an adult" (p. 265.). He acknowledges the existence of this harm but argues that it may actually be a result of societal reaction to this contact rather than the contact itself. He cites developmental psychologists who believe that the greatest harms come to children when they are forced to serve as a witnesses to prosecute the adult or when parents of the child emotionally protect themselves by insisting that the child in no way consented to the sexual contact, and was purely the victim of a predator.
Eskridge is not arguing for the complete repeal of laws barring sexual contact with children. Rather, he argues that the legal reaction should be more sensitive to context such as the age of the child and the relationship between the adult and the child. Although his arguments will certainly arouse ire, they are really nothing more than a demand that society take the same hard look at the empirical assumptions underlying this area of law that it does to other areas. If there is substantial evidence that forcing a child to testify against an adult with whom he or she has had sexual contact is actually more likely to cause harm than is the sexual contact itself, then the wisdom of the law should be open to discussion.
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In fact, although this part of the book is quite daring, there is nothing particularly radical or "queer" about it. Eskridge repeatedly contrasts queer theory with liberalism. Yet, it is not clear why his arguments are anything but liberal. His arguments are based on classic liberal values of individual autonomy and consent. He argues that liberalism fails to capture the law of sexuality in America where the law continues to regulate a good deal of consensual activity, even between adults. However, his ensuing argument really amounts to a demand that liberal values be applied even to those areas of life that make us most uneasy.
In sum, this is a book that deserves a wide audience. It is well researched, clearly written. Its analysis is rigorous and it stakes out highly controversial positions with clarity and level-headedness. Hopefully it will gain the readership it deserves.
REFERENCE:
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Copyright 2000 by the author.