The Long Arc of Justice

Lesbian and Gay Marriage, Equality, and Rights

Richard Mohr

• Publisher: Columbia University Press
• Year: 2005
• eBook ISBN: 9780231509442
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

Engaging the whole spectrum of public-policy issues affecting gays and lesbians from a humanistic and philosophical approach, Richard Mohr uses the tools of his trade to assess the logic and ethics of gay rights. Focusing on ideas and values, Mohr's nuanced case for legal and social acceptance applies widely held ethical principles to various issues, including same-sex marriage, AIDS, and gays in the military. By drawing on cultural-, legal-, and ethical-based arguments, Mohr moves away from tired political rhetoric and reveals the important ways in which the struggle for gay rights and acceptance relates to mainstream American society, history, and political life.Mohr forcefully counters moralistic and religious arguments regularly invoked to keep gay men and women from achieving the same rights as heterosexuals. He examines the nature of prejudices and other cultural forces that work against lesbian and gay causes and considers the role that sexuality plays in the national rituals by which Americans define themselves. In his support of same-sex marriage, Mohr defines matrimony as the development and maintenance of intimacy through the means by which people meet their basic needs and carry out their everyday living. Mohr contends that this definition, in both its legal and moral sense, applies equally to homosexual and heterosexual couples. Mohr also considers gays and lesbians as community members as he explores the prospect for greater legal and social inclusion. He concludes by suggesting that recent progress in addressing civil rights for gays and lesbians and the nation's symbolic use of gay issues on both sides of the political spectrum calls for a culturally focused gay politics.

Chapter 1

Lesbian and Gay Basics: Some Questions, Facts, and Values

Over the last decade, gay men and lesbians have begun to make steady progress in getting our issues debated—in the courts, at city hall, in state houses, in Congress, and by the White House. But there remain structural impediments to lesbians and gay men making consistent progress in shepherding our interests across these debates on into public policy, social practice, and law. Ironically, just as the progress that gays have made to date has largely been cultural, so too are the undertows that trip up further progress. These undertows include: the persistence of antigay stereotypes; a belief held by some that discrimination against gays is slight and so not a major social worry; a widespread belief, sometimes religiously based, that gays are somehow immoral, perverse, even willfully perverse; and a fear that changing social policies concerning lesbians and gay men will usher in other, undesirable, possibly cataclysmic changes. This chapter seeks to address these problems and allay these fears.

Increasingly the average American knows someone who is lesbian or gay. In 1985, only one in five Americans claimed to have a friend or acquaintance who was a lesbian or a gay man.¹ In 2004, 40 percent of Americans claimed to have a close friend or family member who was a gay man or lesbian. When the question was expanded to ask after acquaintances as well, 69 percent of Americans claimed to know a lesbian or gay male.² This is important progress. Even so, much, perhaps most, of America’s experience with gay men and lesbians is not firsthand, but mediated—has cultural rather than personal sources. First among these cultural sources are stereotypes that warp people’s perception of lesbians and gay men, and can even swamp or erase the benefits of firsthand experience. For people tend to hold onto stereotypes even when their own circle includes friends who directly contradict the stereotype.

Mainstream media—television first among them—abound in portrayals of gay people (particularly gay men) that reinforce stereotypes rather than undercut them, especially in the absence of any programming that presents a hearty number of ordinary gay people. For example, cultural critics have argued that Queer as Folk reinforces the stereotype of gay men as aggressively promiscuous, while Queer Eye for the Straight Guy reinforces the stereotype of gay men as flighty ditzes.

To their credit, these two television programs have helped to defang the term “queer” and even launch it into some areas of mainstream circulation with a positive valance. But the shows also may be seen as emblems of the two oddly contradictory stereotypes of gay people that still persist in our culture. On the one hand, gay people are seen as confused about their gender identity: lesbians are females who want to be, or at least look and act like, men—thus, the aspersions bull dykes and diesel dykes; while gay men are males who want to be, or at least look and act like, women—thus the aspersions queen, fairy, nance, limp-wrist, nelly, sissy, and auntie. These stereotypes of mismatches between biological sex and socially defined gender roles provide the fodder for ethnic-like jokes, which, though derisive, basically view lesbians and gay men as ridiculous: “How many fags does it take to change a light bulb?” Answer: “Eight—one to replace it and seven to scream ‘Faaaaaabulous!’”

The other set of stereotypes casts gays as a pervasive, sinister, conspiratorial threat. The core stereotype here is that of gay people—especially gay men—as sex-crazed maniacs, and very likely child molesters, but in any case vampire-like creatures that aggressively spread around a corruptive contagion. These stereotypes carry with them fears of the very destruction of family and civilization itself. The contradiction between these two images is obvious: something that is essentially ridiculous can hardly have such a staggering and menacing effect. Something must be afoot.

Clarifying the nature of stereotypes can help make sense of this incoherent amalgam. Stereotypes are not simply false generalizations from a skewed sample of cases examined. Admittedly, false generalizing plays some part in the stereotypes society holds about gays and other groups. For instance, most studies before the 1960s were based almost entirely on gay men who were in psychiatric hospitals or prisons, and not surprisingly, these men proved to be of a crazed or criminal cast. Such false generalizations, though, simply confirmed beliefs already held on independent grounds, ones that likely led the investigator to the prison and psychiatric ward to begin with. Evelyn Hooker, who in the late 1950s carried out the first rigorous studies of nonclinical gay men, found that psychiatrists, when presented with case files including all the standard diagnostic psychological profiles—but omitting indications of sexual orientation—were unable to distinguish gay files from nongay ones, even though they believed gay men to be crazy and themselves to be the experts at detecting craziness.³ These studies proved a profound embarrassment to the psychiatric establishment, which profited throughout the twentieth century by attempting to “cure” allegedly insane gays. Hooker’s studies ultimately led the way to the American Psychiatric Association’s decision, in 1973, to drop homosexuality from its registry of mental illnesses. Nevertheless, the stereotype of gays as “sick” continues apace in the mind of America. And the American Psychiatric Association still thinks it is acceptable for its members to try to change the sexual orientation of gays who are unhappy about being gay. The APA merely changed the name of the diagnosis to “ego-dystonic homosexuality” and then, in 1994, changed that diagnosis, in turn, to “persistent and marked distress about one’s sexual orientation.”⁴ The disingenuousness of this orientation-neutral reform is clear: through the miracle of political correctness, it seems that the APA would have us believe that there are heterosexuals out there who are so distressed about their sexual orientation that they should pay psychiatrists good money to be converted into happy homosexuals.

False generalizations help maintain stereotypes; they do not form them. As the history of Hooker’s discoveries shows, stereotypes have a life beyond facts; their origin lies in a culture’s ideology—the general system of beliefs by which it lives—and they are sustained across generations by diverse cultural transmissions, including slang and jokes, which don’t even purport to have a scientific basis. Stereotypes, then, are not the products of bad science, but reflections of society’s conception of itself.

But these reflections do not just passively sit around in the mind as inert bits of false opinion, in the way, say, dated or inaccurate statements might sit around inert in an old encyclopedia. Rather they have an active role in how a person takes in the world. They are part of the apparatus, lenses, if you will, through which the mind perceives the world. If you look through a lens with a tree painted on it, you see a tree everywhere. If you look through a pink lens, the world is pink. The lens filters out other colors. Stereotypes determine what we take to be “the facts,” to be good evidence, sound ideas, even logical arguments. For they screen out any fact, idea, or argument that disagrees with what a person believes already.

Stereotypes can literally cause a person to see things. Consider, for example, the initial round of gay weddings in San Francisco during February 2004. When newly hitched lesbian and gay couples would emerge from city hall, well-wishers in the plaza below would shout hurrahs. A week into these weddings, the Austrian-born governor of California was in town for a state Republican convention. Two days later he reported to NBC’s Meet the Press on the gay marriages he thought he had seen: “All of a sudden we see riots and we see protest and we see people clashing. The next thing we know is there’s injured or there’s dead people.”⁵ The New York Times reported of the very same events: “The San Francisco police reported no violence related to the same-sex marriage certificates.”⁶ The stereotype of gays as destroyers of civilization made the governor see jubilation as civilization destroyed—anarchy. The stereotype caused the governor to project onto experience something he already believed and then use the stereotype-manipulated experience to reinforce beliefs he held already linking gays and anarchy—beliefs he felt so confident about that he would trot them out onto national television.

On this understanding of stereotypes, as culturally implanted lenses with a social agenda in mind, it is easy to see how the main antigay stereotypes operate in society’s conception of itself. Stereotypes about gays as gender-confused reinforce powerful gender roles that are still prevalent in American society. These stereotypes condemn the possibility of choosing a social role independent of one’s biological sex—a possibility that might threaten many guiding social divisions, both domestic and commercial. Blurred would be the socially sex-linked distinctions between breadwinner and homemaker, boss and secretary, doctor and nurse, protector and protected, even God and his world. The accusations “fag” and “dyke” serve in significant part to keep women in their place and to prevent men from breaking ranks and ceding away theirs.

The stereotypes of gays as destroyers of civilization function to displace (possibly irresolvable) social problems from their actual source to a remote and (society hopes) manageable one. For example, the stereotype of the gay person as child molester functions to give the traditionally defined family unit a false sheen of innocence. It keeps the unit from being examined too closely for incest, child abuse, wife-battering, and the terrorizing of women and children by a father’s constant threats. The stereotype teaches that the problems of the family are alien to it, not internal to it.

If this account of stereotypes holds, society has been profoundly immoral. For its treatment of gays is a grand scale rationalization, a moral sleight-of-hand. The problem is not that society’s usual standards of evidence and procedure in decision-making have been misapplied to gays. Rather, when it comes to gays, the standards themselves have simply been ruled out of court and disregarded in favor of mechanisms that encourage unexamined fear and hatred.

* * *

Partly because lots of people still suppose they don’t personally know any gay people, and partly because of the ongoing effects of stereotypes, society at large is not fully aware of the many ways in which lesbians and gay men are still subject to discrimination. Contributing to this ignorance is the difficulty for gay people, as an invisible minority, even to complain of discrimination, especially workplace discrimination. For if one is gay, to register a complaint would suddenly target oneself as a stigmatized person, and so, especially in the absence of any protection against discrimination, would simply invite more discrimination. So, discrimination against lesbians and gay men, like rape, goes seriously underreported. Even so, known discrimination is widespread.

Annual studies by the National Gay and Lesbian Task Force have consistently found that more than 90 percent of gay men and lesbians have been victims of violence or harassment in some form on the basis of their sexual orientation. Greater than one in five gay men and nearly one in ten lesbians have been punched, hit, or kicked; a quarter of all gays have had objects thrown at them; a third have been chased; a third have been sexually harassed; and nearly one-seventh have been spit on, all just for being perceived to be gay.

The most extreme form of antigay violence is queerbashing—where groups of young men target a person who they suppose is a gay man and beat and kick him unconscious and sometimes to death amid a torrent of taunts and slurs. In July 1999 at Fort Campbell, Kentucky, Pvt. Calvin Glover goaded Pvt. Barry Winchell into a fistfight. Glover lost the fistfight to Winchell, a soldier widely perceived in the barracks to be gay. The next night, a third soldier egged on and taunted Glover to defend his lost manhood—after all what could be more humiliating than to be beaten by a sissy?—and so Glover clubbed Winchell to death with a baseball bat as he slept. Glover got a life sentence, the friend twelve and a half years.⁷

But many queerbashing cases never reach the courts. Those that do are frequently marked by inequitable procedures and results. Judges will describe queerbashers as “just All-American boys.” In a particularly disturbing case from the 1980s, a District of Columbia judge handed suspended sentences to queerbashers whose victim had been stalked, beaten, stripped at knife point, slashed, kicked, threatened with castration, and pissed on, because the judge thought the bashers were good boys at heart—they went to a religious prep school.⁸ Current-day queerbashing functions somewhat similarly to past lynchings of blacks—to keep a whole stigmatized group in line. As with lynchings, society has routinely averted its eyes, giving its permission or even tacit approval to violence and harassment. These inequitable procedures show that the life and liberty of gays, like those of blacks, count for less than the life and liberty of members of the dominant culture.

There has been some progress on this front over the last decade. Thanks to the nationwide publicity given to the particularly brutal, Crucifixion-invoking murder of Matthew Shepard in Laramie, Wyoming, in October 1998, and to the subsequent trials and convictions of his assailants and their accomplices, queerbashers have had more difficulty mounting successful defenses which argue that their actions were a form of justified self-defense.⁹ In such so-called homosexual panic defenses, the killer would simply claim his act was an understandable, automatic response to a sexual overture. It was the victim’s fault; he provoked his own death. In the Shepard case, the judge barred the defense team from presenting such a defense, since it turns on and reinforces prejudices against gays.¹⁰ This ruling has set a judicial pattern for the rest of the country.

Still, as long as the stereotype of gays as child molesters lives, many will believe, at least subconsciously, that when gays are attacked, they are just getting what they deserve. And young males can still find “out there” in popular culture lots of support for the violence they direct against gay men. In February 2001, the white rap artist Eminem won three Grammy Awards, including best rap album for his Marshall Mathers LP, which had sold 5.2 million copies in just two months after its May 2000 release.¹¹ Of the record’s eighteen tracks, thirteen belittle gay men and lesbians; one portrays gay men as child molesters; one ridicules gay marriage; many include threats of lethal violence against gay men and lesbians (“My words are like a dagger that’ll stab you in the head whether you’re a fag or les”), often with a side appeal to a “homosexual panic” justification (“You faggots keep eggin me on til I have you at knifepoint”). The tracks culminate in a genocidal fantasy: “You faggots can vanish to volcanic ash. And re-appear in hell with a can of gas, and a match.”

Where young males are violent by government order, gay men and lesbians are also discriminated against. Lesbians and gay men are barred from military service. Until 1993, the bar was a Department of Defense directive that could have been changed by the president or Joint Chiefs of Staff. That year, it became a federal statute, which can now be reversed only if Congress passes a new law or the federal courts declare the ban unconstitutional—something they have shown no inclination to do.

In 1996, Congress passed the so-called Defense of Marriage Act, which prevents the federal government from giving legal recognition to any same-sex marriages and permits states to do the same. By the spring of 2004, thirty-eight states had taken up the federal offer and passed laws barring both in-state same-sex marriages and the recognition of those from out of state. A 1997 report that the Government Accounting Office researched and published in response to a request from the U.S. House Judiciary Committee found 1,049 federal laws that provide benefits, rights, and privileges only to those who a...

Table of contents

• Cover 
• Half title
• Title
• Copyright
• Dedication
• Contents 
• Introduction: A Taboo’s End
• Chapter 1. Lesbian and Gay Basics: Some Questions, Facts, and Values
• Chapter 2. Sexual Privacy
• Chapter 3. The Case for Lesbian and Gay Marriage
• Chapter 4. Equality
• Chapter 5. Civil Rights
• Chapter 6. Understanding Lesbians and Gay Men in the Military
• Conclusion: America’s Promise and the Lesbian and Gay Future
• Notes
• Acknowledgments