Sexual Justice

Democratic Citizenship and the Politics of Desire

Morris B. Kaplan

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136039102
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Sexual Justice defends a robust a robust conception of lesbian and gay rights, emphasizing protection against discrimination and recognition of queer relationships and families. Synthesizing materials from law, philosophy, psychoanalysis and literature, Kaplan argues that sexual desire is central to the pursuit of happiness: equal citizenship requires individual freedom to shape oneself through a variety of intimate associations.

PART ONE

PRINCIPLES

CHAPTER ONE

THEORIZING LESBIAN AND GAY RIGHTS

Liberty, Equality, and Community¹

Sexual Justice defends a robust conception of lesbian and gay rights that includes decriminalization of same-sex activities between adults, the protection of lesbian and gay citizens against discrimination, and the recognition of lesbian and gay relationships, queer families, and community institutions. In this chapter, I present an argument as to the principles at issue in the appeal to human rights. My immediate concern is to show how much is required by established democratic norms of liberty, equality, and moral pluralism and by constitutionally recognized rights of privacy. This discussion necessarily abstracts from the specificity of lesbian and gay forms of life to articulate claims in the universalizing languages of democratic theory and constitutional law. However, my purpose is to go beyond the thin conceptions of legal personality and negative freedom that inform liberal theory and to insist on the concrete social dimension of the assertion of equal citizenship by lesbians and gays. Democratic citizenship is embodied in a plurality of voluntary associations and community institutions that result from the exercise of situated freedoms by specific individuals and groups. Analysis of the principles underlying claims to lesbian and gay rights is politically salient because of the emergence of an increasingly visible political and social movement of queer citizens since the 1960s. That movement would have been inconceivable in the absence of the struggles for equality by African Americans, women, and other groups historically excluded from the American democracy. General norms of liberty and equality must be realized through social interaction that transcends the terms of legal entitlement and prohibition while at the same time requiring legal protection and support; continuing contestation of the limits and uses of state power must inform any exercise of active citizenship in modern democracies. Forms of erotic life especially are deeply imbricated in the cultural organization of family relations and individual self-formation. My effort to theorize lesbian and gay rights and liberation moves between abstract universal norms and historically situated forms of life. This chapter focuses on the general structure of normative arguments about equal citizenship for sexual minorities.

I analyze lesbian and gay rights in terms of three kinds of claims: for the decriminalization of private, consensual homosexual acts between adults; for protection against invidious discrimination; and, for the recognition of the ethical and social status of lesbian and gay relationships and associations. Each of these claims brings into play its own conceptualization of the right relations between the democratic state and its citizens, between legal norms and social forms of life. By emphasizing the second and third class of claims, I will formulate a more general ethical framework in which norms of liberty, equality, and community are mutually articulated in a conception of democratic citizenship that includes erotic self-formation as well as political association and contestation.

I. What Are “Lesbian and Gay Rights”?²

Claims of lesbian and gay rights encompass a range of arguments regarding the right relationships between gay people and the state. As the movement for these rights has developed in the United States since the 1960s, claims have come to include disparate demands on the political order, supported by diverse and potentially conflicting conceptions of the scope and limits of legitimate state action. This political situation has been exacerbated and made more urgent by the impact of the AIDS epidemic. However, it remains important to identify and clarify the divergent strands of a movement for lesbian and gay rights. It may be useful to indicate three primary categories for such claims: 1) decriminalization of homosexual activities between consenting adults; 2) the prohibition of discrimination against lesbians and gays in employment, housing, education, and public accommodations; and 3) the legal and social recognition of the ethical status of lesbian and gay relationships and community institutions.

Approximately one-half of the states continue to prohibit specified sexual activities (usually anal and oral intercourse) even when pursued in private between consenting adults; some jurisdictions proscribe such activities among “persons,” others specifically target “persons of the same sex.” Moral and political opposition to such criminalizing of intimate sexual behavior is generally articulated in terms derived from John Stuart Mill’s classic essay On Liberty. Legal strategies seeking to invalidate such legislation as an unconstitutional infringement of individual “rights of privacy” culminated in the Supreme Court’s five-to-four decision of Bowers v. Hardwick, when the Court refused to overturn Georgia’s laws banning consensual sodomy.³ Litigation in state courts premised on the provisions of state constitutions has met with some success.⁴ The claim underlying demands for decriminalization is an individual’s right “to be let alone.” At issue is the limitation of the state’s authority to regulate individual behavior between consenting adults in which no one is harmed. A number of important academic debates, to be considered below, have in recent decades used the example of consensual homosexual relations among adults in private as a lens through which to consider the limits on the coercive authority of the state. In political terms, libertarians of the right sometimes join with traditionally liberal civil libertarians in condemning state intrusion into the domain of private sexual behavior between consenting adults.⁵

A somewhat different range of concerns informs opposition to invidious discrimination against lesbians and gays. Here the movement for lesbian and gay rights joins African Americans, women, religious and ethnic minorities, and the disabled in seeking the protections provided to some of these groups by the United States Congress in the Civil Rights Acts of 1964 and 1965 and by subsequent similar enactments by states and localities. When couched in constitutional terms, these claims invoke the “Equal Protection Clause” of the Fourteenth Amendment, whereas privacy claims depend on the “Due Process Clause.” Currently fashionable libertarian advocacy of “minimal government” and some versions of liberalism that reject the criminalization of private homosexual behavior nonetheless oppose the extension of civil rights protections as an unjustifiable intrusion into private decision making by employers, landlords, and others.⁶ Only nine states include sexual orientation among the categories protected against discrimination in their civil rights laws.⁷ The federal civil rights laws do not include sexual orientation as a protected category (although the Clinton administration supported proposals to do so in a 1995 bill with virtually no chance for passage in the 104th United States Congress). Civil rights legislation in general prohibits discrimination against specified groups in employment, housing, education, and public accommodations and provides a range of remedies from injunctive relief through compensatory damages to punitive damages. Claims by lesbians and gays for such protection envision a more positive role of the state in assuring these rights. Indeed, libertarians and other defenders of a minimal state are correct in seeing that the demand for protection against discrimination asks the state to prohibit individuals from exercising their prejudices against queers when they occupy positions empowered to dispense jobs, housing, or other economic opportunities. However, their objection conflates individual freedom of association, the right to choose your friends, with the collective economic and social power of large-scale employers, financial institutions, real estate enterprises, and the like; it engages not only questions about private property, but also the legal fiction that corporations are persons. The philosopher Richard Mohr, no friend to state power, has effectively marshaled the arguments favoring the inclusion of lesbians and gays in civil rights legislation, emphasizing the crucial importance of such legislation as a guarantor of fundamental political rights.⁸ He describes the role of the state in this context as that of a “civil shield.” I shall return to the links between civil rights protections and democratic citizenship in the concluding section of this chapter.

The highly contested political character of this issue, in a period of widespread reaction against all civil rights legislation — and growing moral panic about homosexuality — is evidenced by efforts in Oregon, Colorado, and elsewhere to forbid by referendum the enactment of laws to protect homosexuals against discrimination. These campaigns have invidiously labeled as demands for “special rights” the efforts of lesbian and gay citizens to gain equal citizenship. These referenda themselves raise fundamental questions as to the authority of popular majorities to deny to some groups equal access to normal political processes. (In May 1996, the Supreme Court invalidated Proposition Two amending the Colorado Constitution as a violation of the U. S. Constitution’s guarantee of “equal protection of the laws” to lesbian and gay citizens.⁹ Romer v. Evans is discussed in the Introduction.)

A related but distinct class of claims emerge when we turn to the growing demand on states and the law for recognition of the status of lesbian and gay relationships, institutions, and communal needs. Among the practical issues addressed here are: the right of lesbians and gays to marry or otherwise establish domestic partnerships; the entitlement of lesbian and gay partners to the benefits of health insurance, lease or rent stabilization privileges provided spouses or family members, or the dignity of recognition within the institutions that provide care for the sick and dying; the recognition of lesbian mothers and gay fathers as fit custodians of their own children and of lesbians and gay men generally as potential foster or adoptive parents; the demands of lesbian and gay organizations for official status in public schools, universities, or professional associations; the rights of queers to gather at bars, bathhouses, and social clubs without police harassment; the status of lesbian and gay institutions in the politics and provision of healthcare during the AIDS crisis. These are among the most controversial claims, and some advocates of liberal tolerance see them as going too far. During the 1996 Presidential campaign, President Bill Clinton, who supported federal civil rights protections for lesbians and gay men, emphasized his opposition to same-sex marriage. Nonetheless, litigation challenging the denial of marital status to same-sex couples is proceeding in several jurisdictions; the Supreme Court of the State of Hawaii in Baehr v. Lewin held that this exclusion violates a state constitutional ban on discrimination based on sex and must survive “strict scrutiny” if it is to be upheld.¹⁰ Efforts to secure recognition of same-sex domestic partnerships have met with some success from local governments and in negotiating agreements with private employers. Moreover, throughout the country, lesbians and gay men in increasing numbers are sharing “commitment ceremonies” with their families and friends, bearing and adopting children, and establishing families of their own.¹¹ The ethical and social attitudes underlying these claims present a provocative and unstable juncture of conservative and radical impulses.

At issue is the demand for the recognition and respect of lesbian and gay relations and institutions within the broader legal, social, and ethical context. The state functions in this context not only as a civil shield protecting lesbians and gay men against invidious discrimination by private citizens, but also as a positive agency for actualizing the aspirations of queer citizens. Moreover, the rights in question are not simply those of individuals, but of couples, families, and voluntary associations. Ultimately what is at stake is the moral legitimacy and ethical validity of lesbian and gay ways of life. These claims reveal the political and philosophical heart of the movement for lesbian and gay rights. Far from being “icing on the cake,” such demands are the real “bread and butter” underlying more abstract and formal conceptualizations of lesbian and gay rights. These issues provide a focal point for comprehending the resistance to lesbian and gay rights as well as a perhaps surprising locus for potential reconciliation between lesbian and gay rights and traditionally formulated “family values” and community norms. Indeed, attention to the ethical and social status of lesbian/gay relationships and institutions requires us to probe and to clarify the problematic role of “community” in contemporary democratic theory and practice.

II. Uses and Limits of the Constituional Right of Privacy

In this section I consider the development of a constitutional right of privacy insofar as it bears on the question of lesbian and gay rights. A full blown conception of lesbian/gay rights requires that we go beyond a right of privacy narrowly construed as a negative “right to be left alone.” Such a limited conception of privacy rights at best grounds arguments against the criminalization of private consensual homosexual acts between adults; it has little bearing on the regulation of discrimination or on the recognition of lesbian and gay partnerships and institutions. Nonetheless, the recognition of a positive constitutional right of privacy with its implication of the equal enjoyment of such rights by all citizens is a necessary component in a full blown articulation of lesbian and gay rights. An account of liberty as personal autonomy inextricably linked to freedom of association explicates the right of privacy as encompassing basic principles concerning limited government, political neutrality, and democratic pluralism, and locates it within the context of political theory and constitutional morality. Unfortunately — although not decisive in philosophical terms — the constitutional right of privacy has become problematic in relation to the politics of the Supreme Court. Still, the jurisprudence developed in the privacy cases sheds important light on the relations between lesbian and gay rights and constitutional principles.

The great irony of the privacy jurisprudence is that it receives its most articulate and theoretically substantial formulation in Justice Harry Blackmun’s dissenting opinion in Bowers v. Hardwick.¹² In that case, the Court refused to invalidate Georgia’s consensual sodomy laws as a violation of constitutionally based privacy rights (at least insofar as the law applied to homosexuals). The constitutional right of privacy was first formulated in Griswold v. Connecticut, in which the Court invalidated a state ban on the possession and use of contraceptive devices and substances.¹³ Although the result was supported by a majority of seven-to-two, the Justices offered quite diverse statements of the Connecticut decision’s rationale. As a result, the constitutional right of privacy has been the subject of a vigorous and heated academic and political debate, most dramatically in the televised public hearings on President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court. There is little doubt that the U. S. Senate’s eventual rejection of the Bork nomination was influenced importantly by the nominee’s insistence that rights of privacy many citizens take for granted are the result of an illegitimate and indefensible extension of judicial power. Notwithstanding the criticisms of Bork and others, especially in the legal academy, the right of privacy has been applied since 1965 to invalidate state laws aimed at regulating a variety of activities: the enjoyment of “obscene” materials in the home, in Stanley v. Georgia;¹⁴ the availability of contraception to unmarried adults in Eisenstadt v. Baird¹⁵ and to minors; and, of course, the right of a woman to terminate her pregnancy by abortion in Roe v. Wade.¹⁶

The Griswold line of cases has been vehemently criticized as an instance of unprincipled judicial legislation with no support in the text or history of the Constitution. Full consideration of these arguments goes to the heart of contemporary constitutional theory and is beyond the scope of this book. However, it is important to recognize this background in evaluating the Court’s decision of Bowers v. Hardwick. Simply stated, to see the Court’s retreat here as an instance of homophobia may be the optimistic view of the matter: one cannot rule out the possibility that the right of privacy as such no longer commands the support of a majority of Justices of the Supreme Court. If so, the implications extend quite beyond lesbian and gay rights — the Court’s recent vacillations on a woman’s right to abortion are further evidence in this regard. Political preferences aside, what is to be said on behalf of the constitutional right of privacy? What place does it play in a sound scheme of constitutional rights? What are its possibilities and limitations as a basis for lesbian and gay rights?

In his classic dissenting opinion in Olmsteadv. United States, Justice Louis D. Brandeis identified the right of privacy as “the most comprehensive of rights and the right most valued by civilized men”; he defined it as “the right to be left alone.”¹⁷ We must distinguish between privacy rights as defined by common law or by particular state or federal legislation and a right of privacy guaranteed by the United States Constitution. The latter, as formulated in Griswold, comes into play when a litigant seeks to have federal courts invalidate state legislation as an infringement of t...