Critical Queer Studies

Law, Film, and Fiction in Contemporary American Culture

Casey Charles

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781409444060
• eBook ISBN:
  9781317157083
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

Critical Queer Studies examines contemporary films and documentaries that dramatize the intersection of law and queer life, analyzing the effects of legal doctrines-jury selection, unwanted sexual advance, negligence, hate crimes, and gay marriage-on the production and reception of queer film and fiction. Exploring the interaction of these discourses by discussing internationally-known American films, the book demonstrates how the law maintains its hold over the queer subject through promoting certain ideological fictions and conversely how film and literature draw upon the material realities of queer legal status to dramatize conflicts between law and the marginalized subject. Critical Queer Studies synthesizes queer studies, law and literature, and film studies, engaging these fields to show how the struggle for gay and lesbian rights has influenced the production of film and fiction.

Chapter 1
A Jury of One’s Queers: Revisiting the Dan White Trial¹

The field of critical queer studies examines the discursive formations through which sexual minorities have continued to suffer, in the words of the late Justice Brennan, such a “pernicious and sustained hostility”—such an “immediate and severe opprobrium”—that their only counterparts in the United States are racial groups (Rowland v. Mad River Local School District, 470 U.S. 1009, 1014, 105 S.Ct. 1373 [1985] [opinion of Brennan, J., dissenting from a denial of certiorari]). As legal scholar Mari Matsuda has declared, the “criminal justice system is a primary location of racist, sexist, homophobic, and class based oppression in this county.”² This chapter explores the methodology behind these trenchant assessments by revisiting perhaps the most notorious anti-gay crime in United States history, the assassination of Harvey Milk by ex-policeman and San Francisco supervisor Dan White, who served after his manslaughter conviction a little over five years for the killings of Milk and Mayor George Moscone. Two dramatic re-enactments of this famous trial—one an award winning film, The Times of Harvey Milk, and the other a stage play entitled The Execution of Justice—provide the data and framework for my exploration of the way the criminal justice system perpetuates queer bias by sanctioning strategies of exclusion and erasure in almost all phases of trial—from jury selection to closing arguments, from expert testimony to pleas of diminished capacity.

The literature on the Dan White trial also dramatizes the larger social impact of this famous criminal proceeding, documenting the shock waves and riots the trial produced in a town that had become in the matter of a decade the hub of a national gay rights movement, a mecca where by 1979 one out of seven residents were gay or lesbian.³ Taking place on the cusp of an incipient backlash that would soon usher Ronald Reagan into national office, the trial of Dan White continues to resonate as what Armstrong and Crage call a “commemorable event” in large part because it symbolizes a turning point in the history of a gay rights movement that would soon turn its attention from liberation to survival in the face of political conservatism and the AIDS epidemic.⁴ While the White Night Riots in San Francisco’s City Hall, which followed the verdict, attest on one level to a dramatic disjunction between legal process and social advancement, the trial also continues to resonate in queer collective memory as a reminder of the deep-rooted homophobia within the criminal justice system—a prejudice evidenced by the long road to the defeat of sodomy laws, the continued use of the homosexual panic defense in some courts, and ongoing debates over adding sexual orientation to hate-crimes legislation in many states.

The story of the rise and fall of the slain Harvey Milk achieved its commemorative status through a discursive explosion that started with the famous footage of now Senator Dianne Feinstein announcing the murders on the morning of November 28, 1978, just days after 900 people from the People’s Church had drunk lethal Kool Aid in Guyana: “As president of the Board of Supervisors,” her shaky voice spoke into the microphones, “it is my duty to make this announcement: Mayor George Moscone and Supervisor Harvey Milk have been shot and killed. The suspect is Supervisor Dan White” (Mann 151—152).⁵ This television footage—a close-up of Feinstein’s aghast countenance before a host of microphones—became the opening sequence of Epstein’s famous film, a documentary that reproduces the paradigmatic narrative of the fated queer by beginning with Milk’s murder before relating Harvey’s biography. Almost immediately after the shots rang out in City Hall that November morning, accounts of the homicides began to reverberate through channels of television coverage, newspapers, a recorded confession, courtroom sketches, trial transcripts, an opera, two major book-length accounts, a collection of poems, and some five years later, two important documentaries that used these sources for their dramatic re-creations—Emily Mann’s Execution of Justice published in 1983, and the 1984 Academy-Award winning documentary film The Times of Harvey Milk.⁶

These productions—one a film, the other a docudrama—not only cite trial transcripts, interviews, and newspapers; they also cite one another. Both have become part of a cultural commemoration that has incited the building of schools, centers, the creation of scholarships, and the repeal of laws.⁷ These two key documentaries also illustrate how the “difficult art” of the drama of the real, as Tony Kushner describes the documentary, undertakes cultural and historical critique as part of its generic structure.⁸ In this chapter, I explore first how jury selection in the Dan White case, as dramatized by Mann’s docudrama, evidenced a form of homo-exclusion and erasure that led to a jury purged of queers, an audience already sympathetic to the defendant’s tragic role before the trial started. Secondly, I examine the way Epstein’s film transforms the trial’s tragic narrative from the story of the heroic Dan White, who cracked under pressure, into a narration of the martyrdom of Harvey Milk. Both works use the tools of theater and film to critique even as they dramatize the defendant’s audiotaped confession and famous plea of diminished capacity, the so-called Twinkie defense, which alleged that the defendant’s temporary mental illness resulted from an ingestion of large amounts of junk food.

Throughout my analysis, I rely on Victor Turner’s notion that social conflict finds redress through a set of rituals that include the analogous forums of courtroom, stage, and screen (12).⁹ For Turner the trial acts as a form of social theater, a dramatic re-enactment that replays original acts of violence through performances of confession, judgment, and punishment; it functions as a dramatic enactment that seeks to repair a rupture in the social fabric and return a community to a form of civil order (10). From the more specific perspective of Turner’s analogy between social conflict and Aristotelian tragedy, the choral jury of Dan White’s peers—removed chronologically and socially from the scene of the crime, sequestered, and cautioned—witnessed a legal re-enactment of the 1978 killings, determining varying claims to truth, deciding the mode of redress they felt warranted, parceling out a remedy meant to return San Francisco to its status quo ante, an environment where Aristotelian justice might again prevail, where the laws made by those in power might again be obeyed (Turner 11; Boal 22–24).¹⁰ The commemorable resonance of the Dan White case, I will argue, arises in part because the elements of its narrative fit easily within the “existing genre” expectations of tragedy, replete with a protagonist who suffers from a mistake made in the face of misfortune (Armstrong and Crage 726). In many ways, the archive of the Dan White trial itself represents the first in a long line of dramatic retellings of this segment of gay history, though the defense in the Dan White trial uses the heteronormative criminal justice system to shift the focus from victim to defendant, to make White—not Harvey Milk—this tragedy’s protagonist. In what follows, I first provide a historical context for the trial and then explore how subsequent dramatizations by Epstein and Mann re-try the Dan White case even as they critique its discriminatory underpinnings. My final section brings critical queer studies to bear on the ideological strategies of these artistic commemorations, asking hard questions about how we can undertake a critique of this homophobic legal history without replicating the very demonization that these docudramas sometimes portray.

Of course, neither the social ritual of Dan White’s trial nor the production of these documentaries took place in a historical vacuum. Both arose within a context of an increasing visible and vocal lesbian and gay presence in San Francisco; both narratives, moreover, still continue to function as forms of what Stuart Hall calls articulation and rearticulation—discursive events that transmit and produce power through a complex set of historical practices.¹¹ These commemorative documentaries have become part of a collective consciousness that continues to influence social practice, as evidenced in the opening of schools, archives, and centers in Harvey Milk’s name as well as the continued push at local and national levels for legislation to protect the queer community. About the same time Dan White was released on parole from Soledad prison in 1984, after serving a sentence of about five years, Epstein’s Oscar-winning film was released, reliving and re-trying these events for thousands of viewers, celebrating Milk’s life and martyrdom, casting Dan White as homophobic antagonist. Was it pure coincidence that White was found dead in his car a year later, his lungs filled with carbon monoxide, a suicide note left for his estranged wife? Whether or not he ever watched Epstein’s film is not known, but this uncanny intersection of culture and event at the very least had the “queer” effect of abrading the boundaries that some critics often draw between artistic representation and what has traditionally been called history.¹² In the early 1980s, White received a “new trial” in the unofficial courts of culture—in Epstein’s film and Mann’s docudrama, nonfiction accounts that sentenced this “gayslayer” to death by his own hand.

The Historical Context: A Policeman and his Target

This tape should be played only in the event of my death by assassination ... I fully realize that a person who stands for what I stand for—a gay activist—becomes a target for a person who is insecure, terrified, afraid or very disturbed themselves ... If a bullet should enter my brain, let that bullet destroy every closet door. (Harvey Milk’s Political Will, made on November 18, 1977)¹³

Harvey Milk taped his prophetic will after he was elected to the Board of Supervisors, the governing body of San Francisco, in November 1977. The tenacious 48-year-old owner of a camera shop on Castro Street had finally prevailed after three unsuccessful attempts to get elected, his victory attributable in part to a proposition passed the previous year that mandated district rather than citywide elections for supervisors. As a result, the first Afro-American, the first Asian American, the first single mother (Carol Ruth Silver) and the first “avowed homosexual” came to govern the city, along with Daniel James White, the 30-year-old Irish Catholic ex-policeman from Visitation Valley, a working-class neighborhood in the southwest part of town.¹⁴ White, a Democrat, had run a law-and-order campaign, framing his appearance with the theme from Rocky and big American flags, proclaiming “I am not going to be forced out of San Francisco by splinter groups of radicals, social deviates and incorrigibles” (Mann 164).¹⁵ As part of his law-and-order platform, White opposed building a home for “troubled” youth in his district, but as one of its first orders of business, the board voted in favor of it, Milk casting the deciding vote in favor after considerable deliberation. White never forgave Harvey for his vote. Though he opposed the Briggs Initiative (a failed 1978 proposition which would have mandated the firing of lesbian and gay teachers in the state), White found himself the lone dissenting vote against Milk’s gay rights municipal law and street closings on Polk Street for the gay Halloween parade.

The simultaneous rise to political power of both Harvey Milk and Dan White pointed to a set of social contradictions that lay behind a remarkable decade of gay liberation in San Francisco. When 350,000 marchers participated in the Gay Freedom Day Parade on June 25, 1978, Harvey Milk addressing a rally at City Hall Plaza with the opening “I want to recruit you,” the “new society” of the Castro had reached what one historian calls “the high point of its development” (Stryker and Van Buskirk 70; FitzGerald 48). In the course of a decade, a plethora of gay bars, bathhouses, theaters, film festivals, newspapers, and political organizations had accompanied one of the most “miraculous” flourishings of culture in queer history (D’Emilio 187; Armstrong 113, 115). But the unprecedented turnout for the 1978 parade also reflected a reaction to a growing anti-gay political campaign, as evidenced by a California ballot measure that sought to keep lesbians and gay men out of public schools. Spawned by Anita Bryant’s successful campaign to defeat Dade County’s gay rights law a year earlier, the Briggs Initiative was defeated only after an arduous campaign led by Milk. Its viability pointed to an incipient backlash that would become a significant weapon in the Dan White trial.

What Stryker and Van Buskirk call the “cultural visibility” of the gay liberation movement had also made queers ready targets of an escalating incidence of violence in the San Francisco (73). While police raids on lesbian and gay bars were commonplace in the 1950s and 1960s, that antagonism did not disappear in the 1970s, even with the political clout of the tavern owners. Gay murders, bombings of gay business, and arson continued in the 1970s, and the police were sometimes the perpetrators (77). Although Dan White was not openly homophobic, his campaign rhetoric employed terms like “malignancies of society” and social “blight” to code his distaste for public displays of affection and nudity in the queer community. White’s disaffection with deviates and liberals, coupled with his allegiance to the police force, tapped into a growing frustration with the openness on Castro Street, a frustration backed by a long history of institutional erasure and in many cases impunity for violent attack. The simultaneous political success of both Milk and White reflects a dialectic that still accompanies the struggle for queer civil rights; its detractors often growing more virulent in response to success, some like Dan White well aware of the law’s history of unchecked oppression of sexual minorities.

On Friday, November 10, 1978, after 10 months in office as a supervisor, Dan White resigned from the board, citing economic and family concerns. Pressured by his friends, he changed his mind a few days later and asked the progressive mayor for his seat back on Tuesday, November 14. At first, Moscone said he would consider the resignation rescinded, but he later discovered the law required him to re-appoint White formally. Milk lobbied against the re-appointment, and when Moscone met with White, he received no assurances that White would vote for any of Moscone’s plans, including the settlement of an affirmative action lawsuit against the police department. On November 25, the mayor offered the job of supervisor to Don Horazney without informing White, who heard the news from a reporter on Sunday, November 26.

The next morning White was driven to City Hall by his aide, carrying his loaded .38 in his suit’s coat pocket along with a handful of extra shells in a handkerchief. Dropped off at the entrance, he noticed the new metal detectors in place as a result of the recent Jim Jones massacre. He decided to go around the corner and jump through an open window on the side of the building, running up to the mayor’s office and asking the secretary if he could see the mayor. When he eventually gained entrance, White shot George Moscone five times, twice in the base of his skull (two so-called coup de grace shots). He then proceeded to his old office, reloaded his gun, and asked Harvey to talk to him, shooting Milk four times, twice in the head. White fled to St. Mary’s Cathedral, called his wife, and turned himself in at Northern Station, where his close friend, Lieutenant Frank Falzon, allowed Dan to narrate his confession.

White was tried in San Francisco in May of 1979, on two counts of first-degree murder. Lawyers impaneled an all-white jury with no gays and lesbians, and the defense built its case on the doctrine of diminished capacity, a form of temporary insanity allegedly brought on by White’s depression and junk-food binges. The jury found White lacked the mental capacity to act with malice, convicted White of voluntary manslaughter, and sentenced him to seven years in prison. On May 21, 1979, the White Night Riots left 150 injured and millions of dollars in damage to cars and buildings near City Hall. Later the same night, police raids on Castro Street injured dozens of gay men. While commentators have noted that the riots resulted in little social change, given the incipient rise of the Moral Majority in the 1980s, the collective memory of this trial, I will argue, has not gone unexpressed in film, theater, and nonfiction (D’Emilio 93; FitzGerald 79). Through word and image, these articulations have preserved a common heritage that still marks the bravery of both coming out and queer activism.

Ironically, Dan White received no psychiatric treatment while in prison and was paroled early ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Table of Cases
• List of Figures
• Introduction
• 1 A Jury of One’s Queers: Revisiting the Dan White Trial
• 2 Panic in The Project
• 3 Queer Torts: Gender Trans-gression in the Brandon Teena Case
• 4 “The Imagined Power:” The Specter of Hate Crime in Brokeback Mountain
• 5 Queer Exposures: Making the Real Reel in Van Sant’s Milk
• Conclusion: Toward a Queer Political Aesthetic
• Bibliography
• Filmography
• Index