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https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1326&context=wmjowl from Sue Walters

  t is true that one significant marker in the march toward social justice has been irrevocably passed: silence and invisibility. The days of homosexuality as the unspeakable and unseeable, and as easy and acceptable targets for violence and denigration are forever past.35 There is no going back in that sense. But anti-Semitic and racist move- ments do not, for example, disappear simply because it is no longer publicly acceptable to utter racist and anti-Semitic remarks.36 Anti-gay animus does not simply retreat in the face of public “tolerance” of gays, as any quick glance at an evangelical website detailing the evils of homosexuality will tell you.

Indeed, what is even meant by “gay rights” is in question. The quest for equal treatment is often centered on a paradox. On the one hand, gays (and ethnic and racial minorities) argue that gayness doesn’t matter; in making laws, taking a job, raising a family, and serving in the military, it is irrelevant.37 At the same time, most groups have struggled mightily over this irrelevancy stance, and embraced and articulated difference with a vengeance.38 Gay pride, of course, was and is part of that history, demanding rights and recognition, identity and inclusion.

For most of its history, the gay movement has—like so many other social movements before it—focused on the simple, but curi- ously elusive, goal of equal citizenship.39 In a general sense, this quest for citizenship includes an insistence upon equal treatment in employment, housing, education, and law.40 Feeling fully included

leaders and organizations on same-sex marriage”); Michael Warner, Normal and Normaller: Beyond Gay Marriage, 5 GLQ: J. LESBIAN & GAY STUD. 119, 120–21 (1999) (commenting on the shift in the “language of gay politics” away from urgent issues such “as HIV and health care, AIDS prevention, the repeal of sodomy laws, antigay violence, job discrimination, immigration, media coverage, military antigay policy, sex inequality, and the saturation of everyday life with heterosexual privilege”). See also the writings of other left/queer academics such as Lauren Berlant and journalists such as Richard Goldstein.

35. See,e.g.,Rich,supranote26(discussingtheincreasedacceptanceofhomosexuality throughout mainstream American society and the political world).

36. See, e.g., About the Anti-Defamation League, ANTI-DEFAMATION LEAGUE, http:// www.adl.org/about.asp?s=topmenu (last visited Nov. 2, 2011) (exemplifying the continued efforts of organizations to fight anti-Semitism and racism).

37. See WALTERS, ALL THE RAGE, supra note 7, at 18 (stating that “gay identity is made legitimate only through assimilation into the dominant heterosexual gestalt”).

38. See id. at 19; Mission Statement, HUM. RTS. CAMPAIGN, http://www.hrc.org/the-hrc -story/mission-statement (last visited Nov. 2, 2011) (stating that the “HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all” rather than asking the LGBT community to assimilate as a means to acceptance).

39. Diane Richardson, Locating Sexualities: From Here to Normality, 7 SEXUALITIES 391, 391 (2004) (stating that “[l]esbian and gay movements are increasingly demanding equal rights of citizenship”).

40. Id. at 394 (discussing gains in “healthcare, rights associated with social and legal recognition of domestic partnerships, immigration rights, parenting rights and so on”).

 

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in the society in which you live, however, entails more than the formal acquisition of legal equality. For so many minority groups, legal or formal equality is but the starting point of a more thorough- going struggle for substantive inclusion.41 A truly robust citizenship signals a sense of belonging, a combination of shared responsibilities and shared rights. Throughout U.S. history, innumerable groups have struggled to acquire both formal equality and the often more intangible substantive equality offered through full citizenship and inclusion.42 Gays are no different in this regard,43 yet, the persistent fact of gay invisibility alters how these citizenship claims play out.

Americans are uniquely likely to assert a “post” right before we approach the finish line, effectively shutting off the real and sub- stantive public debate needed for that final push.44 We did it with women’s rights, declaring an era “post-feminist” while women still remained lower paid, sexually vulnerable adjuncts to a still male- dominant culture.45 We are doing it now with racial equality, depict- ing the election of our first black president as an indication that the long struggle for civil rights is essentially over, even as poverty and incarceration rates disproportionately climb in African-American communities.46 Americans tend to look at the road ahead and see not where it continues to branch off and divide, but rather where it ends and comes to a full stop.47 Like a mirage of shimmering water

41. See Duggan, supra note 34, at 157 (discussing how the right to marriage is a minor aspect of equal citizenship and that the emphasis needs to be broader to gain actual equality and justice).

42. E.g.,NationalAssociationfortheAdvancementofColoredPeoplePressKit,NAACP, http://naacp.3cdn.net/1746740dc694a593ba_u3m62w9bw.pdf (last visited Nov. 2, 2011) (describing the multifaceted mission of the NAACP as “ensur[ing] the political, educa- tional, social, and economic equality of rights of all persons and to eliminate race-based discrimination”).

43. E.g., Mission Statement, HUM. RTS. CAMPAIGN, supra note 38 (“HRC seeks to improve the lives of LGBT Americans by advocating for equal rights and benefits in the workplace, ensuring families are treated equally under the law and increasing public sup- port among all Americans.”).

44. See, Fahrenthold, supra note 28, at A6 (quoting the vice president of the Human Rights Campaign as saying that same-sex marriage rights will flow naturally from the repeal of DADT and that “[w]e won’t have to say a thing”); Scott James, Celebration of Gay Pride Masks Community in Transition, N.Y. TIMES, June 26, 2011, at 27A (stating that “[o]thers, however, believe recent gay rights victories and greater societal accep- tance have led to complacency”).

45. SeeSuzannaDanutaWalters,PrematurePostmortems:“Postfeminism”andPopular Culture, 3 NEW POL. 103, 112 (1991).

46. E.g.,PeterWallsten&DavidG.Savage,VotingRightsActOutofDate?,L.A.TIMES, Mar. 18, 2009, at A1 (“The election of Barack Obama as president has been hailed as a crowning achievement of America’s civil rights movement, the triumph of a black can- didate in a nation with a history of slavery and segregation.”).

47. See Fahrenthold, supra note 28 (noting how the repeal heralds the success of overcoming one of the last major obstacles because marriage equality will soon follow on the heels of the repeal).

 

2011] THE FEW, THE PROUD, THE GAYS 95

on a hot and barren desert, we imagine we have found the source that will quench our national thirst for justice, even as it continues to stand just beyond our reach. We get part of the way there and, instead of doing the hard work of pushing through to the end, we prematurely declare victory.48 When it comes to matters of homegrown injustice, we get to the shores of Normandy and turn around and go back, com- fortable in our conviction that we already know the outcome. By doing so, we pat ourselves on the back and avoid the deeper challenges.

We then set the stage to get angry with those who still claim dis- enfranchisement. We turn the tables and say we live in a “feminized” world in which boys and men are dealt a bad hand.49 We rail at “racial preferences” and claim minorities already have “too much” help from the government.50 We are doing this now with lesbians and gays, creating the fantasy that we have almost won, that gayness is not still an impediment to full participation and citizenship.51 We assert that gays already have too much political power and should back off.52 We claim gays want “special rights,” are pressing a “gay agenda,” and have been tolerated just about enough.53 By doing this, we prevent ourselves from crossing the finish line and achieving real integration and inclusion.54

The framework of “tolerance,” a framework that has come to dominate public discussion about gay and lesbian rights—including access to open military service—enables this fantasy of completion. At first glance, tolerance seems like a good thing. It seems to herald openness to difference and a generally broad-minded disposition. In- deed, one of the primary definitions of “tolerance” concerns sympathy

48. See id.

49. E.g.,Tom Digby, Male Trouble: Are Men Victims of Sexism?, 29 SOC. THEORY & PRAC. 247, 247 (2003) (“[A]ntifeminism is a common theme in angry man discourse: feminism has ‘gone far enough,’ women have already achieved equality, now it’s men who are suffering from inequality, so it’s time to tilt the balance back toward men a little.”).

50. E.g.,Terry Eastland, The Case Against Affirmative Action, 34 WM. & MARY L. REV. 33, 34 (1992) (“When examined in terms of both theory and practice, affirmative action deserves a negative judgment. Affirmative action cannot remain a way of life unless we wish to change for the worse the very essence of what it means to be an American.”).

51. See Fahrenthold, supra note 28.

52. Elyse Siegel, More Than Half of Tea Party Supporters Say Gays and Lesbians Have Too Much Political Power, HUFFINGTON POST (June 2, 2010, 3:08 PM), http://www .huffingtonpost.com/2010/06/02/tea-party-poll-more-than_n_597968.html (“Fifty-two per- cent of respondents also said that ‘compared to the size of their group, lesbians and gays have too much political power.’ ”).

53. Rich, supra note 26; see Joseph P. Shapiro, The True State of Gay America: Why the Backlash Is Only a Part of the Story, U.S. NEWS & WORLD REP. (Oct. 19, 1992), http:// www.usnews.com/usnews/news/articles/921019/archive_018511.htm (quoting Lon Mabon, the leader of Oregon’s anti-gay initiative, as saying “[t]he gay community ‘is probably, pound for pound, the strongest political lobby in the nation’ ”).

54. See Rich, supra note 26.

 

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or indulgence for beliefs or practices differing from, or conflicting with, one’s own.55 It is a word and a practice, however, with a more com- plicated history and with real limitations. The late Middle English origins of the word indicate the ability to bear pain and hardship.56 In more contemporary times, we speak of having a tolerance for some- thing as the capacity to endure continued subjection to it—a plant, a drug, a minority group—without adverse reactions.57 We speak of people who have a high tolerance for pain, or worry about a gener- ation developing a tolerance for a certain type of antibiotic because of overuse.58 In more scientific usages, it refers to the “allowable amount of variation of a specified quantity.” 59

Tolerance almost always implies or assumes something negative, or undesired, or even a variation contained and circumscribed. The crucial point is that it does not make sense to say that we tolerate something unless we think that it is wrong in some way. To say one “tolerates” homosexuality means that you deem homosexuality to be wrong (or bad or immoral or whatever), and at the same time that you are willing to put up with it.60 If there is nothing problematic about something—say, homosexuality—then there is really nothing to “tolerate.” This model of tolerance therefore skirts the issue of the “virtuousness” of homosexuality and can easily slip into a “love the sinner, hate the sin” obfuscation.61 It allows homosexuality to be desig- nated as “less than” heterosexuality, as a problem, a dilemma, a threat to the moral good.62 Tolerance allows bigotry to stay in place and shores up irrational hatred even as it tries to corral it.63 Tolerance, like acceptance, is transient, dependent on circumstances and whims. It can turn on a dime. Tolerance can become intolerance in the blink of an eye, just as acceptance can easily lead to “except us” as history shifts about.64 And “tolerance” is surely the backdrop to the gays-in- the-military debate, as it is, sadly, for gay rights more generally.

55. See 2 SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 3286 (6th ed. 2007).

56. MIDDLE ENGLISH DICTIONARY 856 (Robert E. Lewis et al. eds., 1995).

57. 2 SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES, supra note 55, at 3286.

58. Id.

59. Id.

60. See Romer v. Evans, 517 U.S. 620, 646 (1996) (discussing the difference between

“tolerance” and “acceptance”); Rajiv Malhotra, Tolerance Isn’t Good Enough: The Need for Mutual Respect in Interfaith Relations, HUFFINGTON POST (Dec. 9, 2010, 7:24 AM), http://www.huffingtonpost.com/rajiv-malhotra/hypocrisy-of-tolerance_b_792239.html (discussing how “tolerance” leaves room for moral disapproval).

61. See Malhotra, supra note 60. 62. See id.

63. See id.

64. See id.

 

2011] THE FEW, THE PROUD, THE GAYS 97 I. THE ETHICS OF ANALOGY

The trope of tolerance is most often tethered to historical compari- sons and analogies. Arguments for gay rights have—unsurprisingly— long been couched in analogical terms.65 With both the military and marriage debates, analogies have been hard to avoid, particularly given the history of both institutions in this country as rife with seg- regationist ideologies and mandates.66 No public or legislative dis- cussion around either can avoid analogies and historical comparisons, most potently—and perhaps most problematically—around race.67 Analogies, and even comparisons, are complicated rhetorical moves and even more fraught when used explicitly in legal and political contexts.68 I do not want to go into the merit of such analogies, but I am interested in how pliable and fluid they seem to be in the case of discussions around DADT. The analogical move itself becomes the playing field—with some, like Colin Powell, decrying the analogy in a move to displace the gay claim on historical struggle, and others argu- ing that the lessons of the analogy are central to overturning the ban.69

When making comparisons and analogies, we typically focus on the difference of visibility that marks out the gay experience as ana- logically dissonant from that of its most frequent comparators— women and blacks.70 There is good reason to do so, for having differ- ence marked on your body produces both specific discourses of the ab- ject and different attempts to constrain and control.71 Therefore, the place of visibility and recognition figure mightily here. For example, while “coming out” may have changed in this new era of media visibility, internet access, and tepid social embrace, it remains a pro- cess almost uniquely “gay” in its very essence.72 Entry into the public eye becomes itself the sign of gay inclusion precisely because gays can assimilate so well, and can hide with such ease. These declama- tory moments have unique resonance for gays: “I do” and “Don’t Ask,

65. RICHARDS, supra note 25, at 6–7.

66. DEP’TOFDEF.,REPORTOFTHECOMPREHENSIVEREVIEWOFTHEISSUESASSOCIATED WITH A REPEAL OF “DON’T ASK, DON’T TELL” 81–85 (2010).

67. Seeid.at85.Itisinterestingthattheracialanalogyhasbeenmoreofteninvoked than the ethnic/religious one. Analogies between Jews and gays seems to me much more intriguing, and more helpful in revealing the mechanisms of anti-gay sentiment. Like Jews, gays are pilloried as cosmopolitan dandies and intellectuals, mocked as rootless wan- derers drawn to urban centers, and feared as signs of social demise and contagion. And like Jews, but importantly not like many other groups (e.g., African Americans), gays can hide, can shield their identity, and can easily pass as that which they are not. Id.

68. RICHARDS, supra note 25, at 1–2.

69. Same Sex Marriage, 48 HAW. B. J. (1995) (quoting Colin Powell). 70. RICHARDS, supra note 25, at 7.

71. See id. at 9.

72. See id.

 

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Don’t Tell” reference a love that not only dare not speak its name, but that must traverse a metaphor of darkness to light, abject to normal, closet to community, in order even to utter itself into existence.

Because sexual difference is not typically marked on the body— unlike racial and gender categorization—it must be uttered, performed, or enacted to make it manifest to others (and sometimes to oneself).73 It must be made visible to be made legible.74 But also—and this is im- portant to remember—because heterosexuality is so assumed, so much the default, so not in need of explanation, gayness is always placed, not as the simple parallel to heterosexuality, but as its hidden other.75 While both masculinity and whiteness are equally dominant in re- lation to femininity and “color,” they are—by and large—visible.76 If you appear to be a woman, no one typically assumes you are a man, unless you declare otherwise. The same can be said for racial identifiers. Thus, the potential to “pass” and indeed assimilate is quite different along these axes.

In addition, the gay experience differs along another axis: kinship. For most minority populations, the bonds of kinship temper social exclusion and the project of integration.77 When faced with a hostile world, African Americans and Jews can look at their immediate fam- ily as “like them” and take comfort.78 Gays, on the other hand, are by and large born into a family that differs from them along the pro- found trajectory of sexual identity and desire.79 To put it simply, most gays are raised in families comprised largely of heterosexuals; they literally and figuratively live in the very house of difference.80 This is one reason why questions of kinship, family, and the legitimacy of such bonds are so deeply felt among gays across the political spectrum even when they differ as to the best way to challenge gay exclusion from those practices and institutions. It might also go a long way toward explaining the perhaps excessive focus on access to marriage and other familial rights and why this issue (over employment rights

73. See id.

74. See Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 WIS. L. REV. 187, 193–94. Clearly, the drafters of DADT somehow “got” this; the status/conduct (or even speech/status) distinction puts gays in unique knots and special double binds that are premised on the closet as a livable default zone of unknowability.

75. Id.

76. DEP’T OF DEF., supra note 66, at 85, 87.

77. See,e.g.,RICHARDS,supranote25,at13(describinghowAfrican-Americanfamilial

relationships nurture self-respect in light of racial prejudice). 78. See id.

79. KariE.Hong,ParensPatri[archy]:Adoption,Eugenics,andSame-SexCouples,40 CAL. W. L. REV. 1, 57 (2003).

80. Id.

 

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for example) has come to be understood (wrongly, in my view) as sine qua non of the success of the gay rights movement.81

For gay rights activists eager to locate military inclusion in the long trajectory of civil rights struggles now canonized as shining mo- ments of American tolerance, reference to the history of racial and gender integration of the military is necessary. It justifies gay inclu- sion and makes the contiguous argument that open service will—like the integration of blacks and (partial) integration of women—have generally positive effects on military readiness.82 Surely, these analo- gies have been useful and hold some merit. They have been embraced by many, African Americans included, who see the “basic equality” questions that open service raises as similar to those faced by other oppressed minorities and women.83 While segregation and exclusion are not exactly the same as closeted presence and formal rejection, they are close cousins, both in their structural motivations (to instan- tiate second-class status, to legally discriminate) and their experi- ential effects (resentment, fear, isolation, loss of employment).84 The arguments used in both instances retain striking similarities with opponents invoking stereotypes of gays in a manner similar to stereo- types of blacks and women used in earlier eras.85 Similar antagonistic sentiments were expressed around desegregating the army, including arguments about isolation, unit cohesion, morale, etc.86 Surely, part of the resistance to the integration of blacks into the armed services derived from a prejudicial belief in the legitimacy of those whites who did not want to have to associate in such “close quarters” with blacks.87 Similar objections to openly gay service members invoke this “close quarters” argument as well, creating a heady mix of contagion fears, infiltration anxiety, and the sullying of the purity of (male, hetero- sexual, white) military culture. Of course, in the sexual-orientation

81. See, e.g., JONATHAN RAUCH, GAY MARRIAGE: WHY IT IS GOOD FOR GAYS, GOOD FOR STRAIGHTS, AND GOOD FOR AMERICA 94–95 (2004) (describing the argument for gay marriage, without as strong of a focus on other rights, such as employment).

82. OnesuchpositiveeffectwillbetheretentionofArabicandFarsitranslators.Laura R. Kesler, Serving with Integrity: The Rationale for the Repeal of “Don’t Ask, Don’t Tell” and Its Ban on Acknowledged Homosexuals in the Armed Forces, 203 MIL. L. REV. 284, 291–92 (2010). This is particularly important today as the U.S. struggles with two wars and a stretched volunteer army. Open service and gay inclusion would stop the loss of translators necessary for the war effort.

83. Julie Kruse, “Don’t Ask, Don’t Tell” Repeal Urged at Congressional Black Caucus Conference, SERVICEMEMBERS LEGAL DEF. NETWORK (Oct. 18, 2007), http://www.sldn.org /blog/archives/don’t-ask-don’t-tell-repeal-urged-at-congressional-black-caucus -conference/.

84. Kesler, supra note 82, at 378–79 (justifying the exclusion of African Americans and women from military service because of the fundamental difference between the aforementioned groups and white men).

85. DEP’T OF DEF., supra note 66, at 81–82, 85–86. 86. Id.

87. Id. at 81–82.

 

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case, the fear of sexual desires (yours, mine, and ours) is added into the mix.88

What is striking, however, is how the military—now faced with a president who has insisted on the full inclusion of openly gay service members—manages to create a hierarchy of analogy in order to main- tain the legitimacy of anti-gay animus, while at the same time ac- knowledging the need for “tolerance.” In the DoD report that emerged from the recent congressional hearings, the military brings up the analogy of homosexual and racial integration only to make sure to differentiate the two:

In drawing parallels to racial integration in the 1940s and 1950s, there are similarities and differences between that expe- rience and repeal of Don’t Ask, Don’t Tell today that we must acknowledge.

First, skin color and sexual orientation are fundamentally different. That said, the concerns expressed in the 1940s about the effects of integration on unit cohesion and effectiveness sound much the same as those voiced in this debate.

Second, there is a religious component to the issue of homo- sexuality that generally does not exist on matters of race. Many hold a sincere religious and moral belief that homosexuality is a sin. Many military chaplains today express opposition in re- ligious terms to allowing gay men and lesbians to serve openly in the military. By contrast, there was no significant opposition to racial integration among military chaplains. In fact, the his- torical record of the period indicates that the military chaplain community, for the most part, encouraged followers along the path of racial integration.89

The analogy has weight, yet also does not hold water. The funda- mental flaw that these military analysts—and indeed many conser- vative and mainstream writers on gay rights—find in the analogy is that, at bottom, the analogy doesn’t logically “work.” The animus against blacks, and the stereotypes underlying the animus, were proven to be simply and undeniably false and based on prejudice, whereas the animus against gays has merit.90 Moreover, visibility enters directly into the debate because “race is an obvious identifier; sexual orientation is not. Even if the law is repealed, it is likely that gay men and lesbians will continue to be discreet and private about their sexual orientation, as in civilian society.” 9