A Jurisprudence of "Coming Out": Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law

Yale Law Journal

Volumn 106, Issue 8, 1997, Pages 2411-2473

  Eskridge Jr , William N ^a  

^a NONE

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EID: 0011537356     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797224     Document Type: Article

References (312)

1. On identity in America, see Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695 (1993); Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995); and Martha Minow, Identities, 3 YALE J.L. & HUMAN. 97 (1991).
2. On identity in America, see Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695 (1993); Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995); and Martha Minow, Identities, 3 YALE J.L. & HUMAN. 97 (1991).
3. On identity in America, see Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695 (1993); Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995); and Martha Minow, Identities, 3 YALE J.L. & HUMAN. 97 (1991).
4. Same-sex intimacy has existed in every human civilization, and its characteristic expression has sometimes been considered sinful †sodomy† in Western culture. Nonetheless, characterization focusing on a medicalized sexual orientation rather than on sinful sexual acts did not begin in earnest until the late nineteenth century in Europe. See 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION (Michael Hurley trans., 1978), JEFFREY WEEKS, SEX, POLITICS, AND SOCIETY: THE REGULATION OF SEXUALITY SINCE 1800 (1981). The concept of †sexual orientation† was quickly embraced by American doctors (1880s) but took longer to reach the popular culture (after 1900). See LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN LIFE IN TWENTIETH-CENTURY AMERICA 11-36 (1991). The term †homosexual† is only a century old. See David Halperin, Sex Before Sexuality: Pederasty, Politics, and Power in Classical Athens, in HIDDEN FROM HISTORY: RECLAIMING THE GAY AND LESBIAN PAST 37-39 & nn.1-2 (Martin Duberman et al. eds., 1989).
5. Same-sex intimacy has existed in every human civilization, and its characteristic expression has sometimes been considered sinful †sodomy† in Western culture. Nonetheless, characterization focusing on a medicalized sexual orientation rather than on sinful sexual acts did not begin in earnest until the late nineteenth century in Europe. See 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION (Michael Hurley trans., 1978), JEFFREY WEEKS, SEX, POLITICS, AND SOCIETY: THE REGULATION OF SEXUALITY SINCE 1800 (1981). The concept of †sexual orientation† was quickly embraced by American doctors (1880s) but took longer to reach the popular culture (after 1900). See LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN LIFE IN TWENTIETH-CENTURY AMERICA 11-36 (1991). The term †homosexual† is only a century old. See David Halperin, Sex Before Sexuality: Pederasty, Politics, and Power in Classical Athens, in HIDDEN FROM HISTORY: RECLAIMING THE GAY AND LESBIAN PAST 37-39 & nn.1-2 (Martin Duberman et al. eds., 1989).
6. Same-sex intimacy has existed in every human civilization, and its characteristic expression has sometimes been considered sinful †sodomy† in Western culture. Nonetheless, characterization focusing on a medicalized sexual orientation rather than on sinful sexual acts did not begin in earnest until the late nineteenth century in Europe. See 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION (Michael Hurley trans., 1978), JEFFREY WEEKS, SEX, POLITICS, AND SOCIETY: THE REGULATION OF SEXUALITY SINCE 1800 (1981). The concept of †sexual orientation† was quickly embraced by American doctors (1880s) but took longer to reach the popular culture (after 1900). See LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN LIFE IN TWENTIETH-CENTURY AMERICA 11-36 (1991). The term †homosexual† is only a century old. See David Halperin, Sex Before Sexuality: Pederasty, Politics, and Power in Classical Athens, in HIDDEN FROM HISTORY: RECLAIMING THE GAY AND LESBIAN PAST 37-39 & nn.1-2 (Martin Duberman et al. eds., 1989).
7. Same-sex intimacy has existed in every human civilization, and its characteristic expression has sometimes been considered sinful †sodomy† in Western culture. Nonetheless, characterization focusing on a medicalized sexual orientation rather than on sinful sexual acts did not begin in earnest until the late nineteenth century in Europe. See 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION (Michael Hurley trans., 1978), JEFFREY WEEKS, SEX, POLITICS, AND SOCIETY: THE REGULATION OF SEXUALITY SINCE 1800 (1981). The concept of †sexual orientation† was quickly embraced by American doctors (1880s) but took longer to reach the popular culture (after 1900). See LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN LIFE IN TWENTIETH-CENTURY AMERICA 11-36 (1991). The term †homosexual† is only a century old. See David Halperin, Sex Before Sexuality: Pederasty, Politics, and Power in Classical Athens, in HIDDEN FROM HISTORY: RECLAIMING THE GAY AND LESBIAN PAST 37-39 & nn.1-2 (Martin Duberman et al. eds., 1989).
8. The term is from Gayle S. Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in SEXUALITY, GENDER, AND THE LAW (William N. Eskridge, Jr. & Nan D. Hunter eds., 1997).
9. See William N. Eskridge, Jr., Challenging the Apartheid of the Closet: Establishing Conditions for Gay Intimacy, Nomos, and Citizenship, 1961-1981, 25 HOFSTRA L. REV. 377 (1997).
10. See CHRISTOPHER BULL & JOHN GALLAGHER, PERFECT ENEMIES: THE RELIGIOUS RIGHT, THE GAY MOVEMENT, AND THE POLITICS OF THE 1990s (1996); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531 (1992).
11. See CHRISTOPHER BULL & JOHN GALLAGHER, PERFECT ENEMIES: THE RELIGIOUS RIGHT, THE GAY MOVEMENT, AND THE POLITICS OF THE 1990s (1996); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531 (1992).
12. See Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 4 (1983), reprinted in NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 95-172 (Martha Minow et al. eds., 1992).
13. See Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 4 (1983), reprinted in NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 95-172 (Martha Minow et al. eds., 1992).
14. See Steven Epstein, Gay Politics, Ethnic Identity: The Limits of Social Constructionism, 93/94 SOCIALIST REV. 9 (May-Aug. 1987), reprinted in FORMS OF DESIRE 239 (Edward Stein ed., 1989) (arguing that gay subcultures are akin to ethnic ones).
15. See Steven Epstein, Gay Politics, Ethnic Identity: The Limits of Social Constructionism, 93/94 SOCIALIST REV. 9 (May-Aug. 1987), reprinted in FORMS OF DESIRE 239 (Edward Stein ed., 1989) (arguing that gay subcultures are akin to ethnic ones).
16. Cover, supra note 6, at 40.
17. 116 S. Ct. 1620 (1996).
18. Id. at 1629 (Scalia, J., dissenting).
19. See HELMUT W. SMITH, GERMAN NATIONALISM AND RELIGIOUS CONFLICT: CULTURE, IDEOLOGY, POLITICS, 1870-1914 (1995).
20. See id. at 54, 62, 79.
21. See id. at 40-41.
22. 133 U.S. 333 (1890), discussed in Romer, 116 S. Ct. at 1635-36 (Scalia, J., dissenting).
23. 478 U.S. 186 (1986), discussed in Romer, 116 S. Ct. at 1631-33 (Scalia, J., dissenting).
24. Notwithstanding these reservations, I agree that gay and religious nomoi often interact in the way Cover describes, each appealing to the jurispathic judge to kill off the other's law or to squelch the other's efforts to transform existing law. Just as earlier ethnic and religious conflicts involved group animosity and violence, the current conflicts between gay and religious nomoi have been rancorous. I do not see that rancor, or even deep conflict, as inevitable. When there is conflict, I part company with Cover in that I see a less jurispathic role for courts. Rather than inevitably killing substantive law and rendering one group triumphant, courts can create structures and procedures of cooperation that are law-sustaining. Aspiralionally, the most important role for courts in our system is to serve as a brake against Kulturkampf and its echoes, where the state itself is enlisted in a campaign to suppress not only law, but the nomic communities themselves.
25. †Gaylegal† jurisprudence examines the law as it applies to lesbians, bisexuals, and gay men or from a gay point of view. (Consistent with common usage, I often deploy †gay† to refer to homosexual women and men.) There is no single gaylegal angle for the cases discussed in this Essay. Nor should gaylaw (the noun) be taken as simply parochial. This Essay maintains that gaylaw can contribute insights to law generally and that gaylegal arguments such as these can be persuasive to straight audiences as well.
26. See KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) (synthesizing earlier articles); KENNETH L. KARST, LAW'S PROMISE, LAW'S EXPRESSION: VISIONS OF POWER IN THE POLITICS OF RACE, GENDER, AND RELIGION (1993); Hunter, supra note 1.
27. See KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989) (synthesizing earlier articles); KENNETH L. KARST, LAW'S PROMISE, LAW'S EXPRESSION: VISIONS OF POWER IN THE POLITICS OF RACE, GENDER, AND RELIGION (1993); Hunter, supra note 1.
28. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 S. Ct. 2338 (1995).
29. See Smith v. Fair Employment & Hous. Comm'n, 913 P.2d 909 (Cal. 1996).
30. See American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986).
31. See Employment Non-Discrimination Act (ENDA) of 1994: Hearings on S. 2238 Before the Senate Comm. on Labor and Human Resources, 103d Cong. 44-45 (1994).
32. Id.
33. See infra note 28. Some have suggested, in commenting on a draft of this Essay, that religion is more a matter of belief, while sexuality is more a matter of desire, both of which I subsume under thought. I think this formulation overstates the differences, linking one to the domain of the intellect, and the other to the domain of the emotions. Both religion and sexuality involve feelings and emotions as well as beliefs and ideas, and so I am disinclined to put weight on any difference in the overall mix of emotion to belief.
34. See EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL PRACTICES IN THE UNITED STATES 98-99, 318-20 (1994) (finding that 73% of heterosexual female sample had engaged in oral sex, versus 82% of females reporting lesbian experiences; and over 20% of heterosexual women had engaged in anal sex (lesbians not asked)).
35. Roman Catholics believe in transubstantiation, that during Communion the bread and the wine actually become the flesh and blood of Christ. Because they are ingested by the communicants and the priest, thinking this to be so, the practice was labelled cannibalistic. Roman Catholics, in turn, could look at an openly Jewish person and think "Christ killer," or "food fetishist," rather than "here is a brother who loves God in a different way than I was taught."
36. The social boundaries defined by ethnicity are often so porous as to allow passing, however. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 75-81 (1990) (discussing story of Queen Esther, who averts genocide against her people by "coming out" to her husband, King Assuérus). Sex and race, of course, can be porous as well. Women have successfully passed for men throughout Western history, and some people can pass for members of a different race. The point in the text is only that these cases are exceptional, while religious and sexual minorities routinely pass.
37. Hence the famous Kinsey scale of sexual orientation considers the person's self-identification, her or his erotic fantasies, and her or his actual sexual activities. A Kinsey 6 is someone who identifies as a homosexual, has only same-sex fantasies, is only attracted sexually to people of the same sex, and has had exclusively same-sex experiences. See ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE HUMAN MALE 638-41 (1948). A similar exercise can be conducted for religion. A devout Catholic (a John Paul 6) is someone who identifies as Catholic, believes Catholic theology, regularly takes Communion, goes to confession, and so forth.
38. I am open to the following difference. Religion might be easier to change than sexual orientation. Religious conversion experiences are common and are seen as a genuine change from one religious viewpoint to another. The convert "sees the light" just as Saul of Tarsus did on the road to Damascus, the classic conversion experience (he even changed his name, to Paul). See Acts 9:1-22. Earlier American sexologists notwithstanding, there is little evidence that homosexuals convert to heterosexuality or vice-versa. The married person who comes out as gay usually thinks of the experience less as a conversion from one identity to another than as a discovery about an identity he or she had all along. None of the foregoing analysis relies on the (controversial) thesis that sexual orientation is hard-wired genetically. See Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503 (1994). Even scientific critics of the "hard-wired homosexuals" hypothesis believe that sexual orientation is a trait rooted early in life and beyond "conscious" choice or control. See, e.g., RICHARD A. POSNER, SEX AND REASON 101-05 (1992) (surveying various theories).
39. I am open to the following difference. Religion might be easier to change than sexual orientation. Religious conversion experiences are common and are seen as a genuine change from one religious viewpoint to another. The convert "sees the light" just as Saul of Tarsus did on the road to Damascus, the classic conversion experience (he even changed his name, to Paul). See Acts 9:1-22. Earlier American sexologists notwithstanding, there is little evidence that homosexuals convert to heterosexuality or vice-versa. The married person who comes out as gay usually thinks of the experience less as a conversion from one identity to another than as a discovery about an identity he or she had all along. None of the foregoing analysis relies on the (controversial) thesis that sexual orientation is hard-wired genetically. See Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503 (1994). Even scientific critics of the "hard-wired homosexuals" hypothesis believe that sexual orientation is a trait rooted early in life and beyond "conscious" choice or control. See, e.g., RICHARD A. POSNER, SEX AND REASON 101-05 (1992) (surveying various theories).
40. For the discussion that follows, I draw on the scholarship about "nativist" movements of religious persecution in American history. The germinal work is JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (corr. ed. 1965). See also sources cited infra note 32. My thinking has also been influenced by the work of Benzion Netanyahu. See, e.g., B. NETANYAHU, THE ORIGINS OF THE INQUISITION IN FIFTEENTH CENTURY SPAIN (1995).
41. For the discussion that follows, I draw on the scholarship about "nativist" movements of religious persecution in American history. The germinal work is JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (corr. ed. 1965). See also sources cited infra note 32. My thinking has also been influenced by the work of Benzion Netanyahu. See, e.g., B. NETANYAHU, THE ORIGINS OF THE INQUISITION IN FIFTEENTH CENTURY SPAIN (1995).
42. Cf. NETANYAHU, supra note 30, at 5 ("For it is an iron-clad rule in this history of group relations: the majority's toleration of every minority lessens with the worsening of the majority's condition, especially when paralleled with a steady improvement of the minority's status.").
43. See NATIVISM, DISCRIMINATION, AND IMAGES OF IMMIGRANTS (George E. Pozzetta ed., 1991); LES WALLACE, THE RHETORIC OF ANTI-CATHOLICISM: THE AMERICAN PROTECTIVE ASSOCIATION, 1887-1911 (1990).
44. See NATIVISM, DISCRIMINATION, AND IMAGES OF IMMIGRANTS (George E. Pozzetta ed., 1991); LES WALLACE, THE RHETORIC OF ANTI-CATHOLICISM: THE AMERICAN PROTECTIVE ASSOCIATION, 1887-1911 (1990).
45. This was the result of Bismarck's Kulturkampf against the Roman Catholic Church, which the Iron Chancellor abandoned as early as 1878. The antireligious campaign was largely ineffectual, served to politicize Roman Catholics against the state, and ended with a recognition that German nationalism did not require confessional unity for its success. See ERICH SCHMIDT-VOLKMAR, DER KULTURKAMPF IN DEUTSCHLAND 1871-1890 (1962); SMITH, supra note 11, at 19-49; Ronald J. Ross, Enforcing the Kulturkampf in the Bismarckian State and the Limits of Coercion in Imperial Germany, 56 J. MOD. HIST. 456 (1984).
46. This was the result of Bismarck's Kulturkampf against the Roman Catholic Church, which the Iron Chancellor abandoned as early as 1878. The antireligious campaign was largely ineffectual, served to politicize Roman Catholics against the state, and ended with a recognition that German nationalism did not require confessional unity for its success. See ERICH SCHMIDT-VOLKMAR, DER KULTURKAMPF IN DEUTSCHLAND 1871-1890 (1962); SMITH, supra note 11, at 19-49; Ronald J. Ross, Enforcing the Kulturkampf in the Bismarckian State and the Limits of Coercion in Imperial Germany, 56 J. MOD. HIST. 456 (1984).
47. This was the conclusion of the anti-Mormon Kulturkampf of the 1880s, which ended when the Church of Jesus Christ of Latter Day Saints abandoned its endorsement of plural marriage in this life, and the Territory of Utah criminalized bigamy and cohabitation in the constitution it presented as part of a statehood application. More extreme consequences flowed from the Kulturkampf against the Spanish Jews in 1391, which resulted in exile, expulsion, and massive conversions to Christianity. See NETANYAHU, supra note 30, at 127-213.
48. See Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753 (1996).
49. See BENZION NETANYAHU, THE MARRANOS OF SPAIN, FROM THE XIVTH TO THE EARLY XVITH CENTURY (2d ed. 1973); NETANYAHU, supra note 30.
50. The anti-Catholic campaigns in Europe are noted in SMITH, supra note 11, at 19 (citing Winfried Becker, Der Kulturkampf als europäisches und als deutsches Phänomen, 101 HISTORISCHES JAHRBUCH 422 (1981)).
51. Morrill Anti-Bigamy Law, ch. 125, 12 Stat. 501 (1862) (codified at Rev. Stat. § 5352).
52. RICHARD S. VAN WAGONER, MORMON POLYGAMY: A HISTORY 107 (2d ed. 1989).
53. 98 U.S. 145 (1878).
54. The Court explained: Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offence against society. . . . . . . . In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Id. at 164-66 (citation omitted). For an excellent historical exploration of the political theory of marriage embedded here, see Maura I. Strassberg, Distinctions of Form and Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C. L. REV. (forthcoming 1997).
55. The campaign to destroy the Latter Day Saints is described in VAN WAGONER, supra note 39, at 115-22; and in Orma Linford, The Mormons and the Law: The Polygamy Cases (pis. 1 & 2), 9 UTAH L. REV. 308, 543 (1964-65).
56. See The Edmunds Act, ch. 47, 22 Stat. 30 (1882) (codified at 48 U.S.C. § 1461) (repealed 1983).
57. Quoted in MERLO PUSEY, BUILDERS OF THE KINGDOM - GEORGE A. SMITH, JOHN HENRY SMITH, GEORGE ALBERT SMITH 135 (1982).
58. See Cannon v. United States, 116 U.S. 55 (1885) (criminal cohabitation); Clawson v. United States, 114 U.S. 477 (1885) (jury service); Murphy v. Ramsey, 114 U.S. 15 (1885) (disenfranchisement).
59. See The Edmunds-Tucker Act, ch. 397, 24 Stat. 635 (1887) (codified at 28 U.S.C. § 633, 660) (repealed 1978).
60. 136 U.S. 1 (1890) (allowing confiscation of Latter Day Saints' property).
61. 133 U.S. 333 (1890) (holding that membership in Latter Day Saints church can be basis for denying right to vote).
62. See VAN WAGONER, supra note 39, at 133-52.
63. See id. at 190-92.
64. 329 U.S. 14 (1946).
65. See VAN WAGONER, supra note 39, at 192-97.
66. See JESSE L. EMBRY, MORMON POLYGAMOUS FAMILIES (1987). As I now (perhaps imperfectly) understand current Latter Day Saints doctrine, Mormon men may no longer have plural wives in this life but will have them in the afterlife. While polygamy still has a place in Mormon theology, both theology and practice responded decisively to the state Kulturkampf. See also NETANYAHU, supra note 30, at xvii-xxi (arguing that forced conversion of Spanish Jews to Catholicism "worked"; Marranos were not "secret Jews," for most part, but assimilated steadily into Spanish Catholicism until Inquisition assailed them for trumped-up heresies).
67. The details of the antihomosexual terror are recounted in WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET ch. 2 (forthcoming 1998); and in William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 FLA. ST. U. L. REV. 703 (1997).
68. The details of the antihomosexual terror are recounted in WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET ch. 2 (forthcoming 1998); and in William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 FLA. ST. U. L. REV. 703 (1997).
69. See, e.g., Bowers v. Hardwick, 487 U.S. 186 (1986) (rejecting privacy and Ninth Amendment challenge); Doe v. Commonwealth's Attorney, 435 U.S. 901 (1976) (summarily affirming three-judge court's rejection of privacy challenge); Rose v. Locke, 423 U.S. 48 (1975) (rejecting vagueness challenge); Wainwright v. Stone, 414 U.S. 1 (1973) (same); Wade v. Buchanan, 401 U.S. 989 (1971), rev'g Buchanan v. Batchelor, 308 F. Supp. 729 (N.D. Tex. 1970) (rejecting privacy challenge).
70. SUBCOMMITTEE ON INVESTIGATIONS OF THE SENATE COMM. ON EXPENDITURES IN THE EXECUTIVE DEP'TS, INTERIM REPORT, EMPLOYMENT OF HOMOSEXUALS AND OTHER SEX PERVERTS IN GOVERNMENT (Dec. 15, 1950).
71. Id. at 4.
72. Id.
73. Id. at 3.
74. See supra note 41.
75. See Eskridge, supra note 54.
76. See Boutilier v. INS, 387 U.S. 118 (1967) (interpreting immigration law to require deportation of bisexual as "psychopathic personality"); Kameny v. Brucker, 282 F.2d 823 (D.C. Cir. 1960) (allowing federal government to deny employment and security clearance to man charged with homosexual "lewdness").
77. I denote 1947 as the start of the antihomosexual panic; this was the year the antihomosexual witchhunts began in earnest in the federal civil service, armed forces, and state civil services, and saw the beginning of many municipal campaigns against same-sex socializing. The craze passed its peak after the "Boys of Boise" scandal, which broke in 1955. See JOHN GERASSI, THE BOYS OF BOISE: FUROR, VICE, AND FOLLY IN AN AMERICAN CITY at xv-xvii (1966). After the peak of the antihomosexual campaign, the Supreme Court in a one line per curiam opinion reversed Post Office censorship of One, Inc., the leading homophile magazine. See One, Inc. v. Oleson, 355 U.S. 371 (1958) (per curiam). Four years later, the Court reversed censorship of male physique magazines that homosexuals found erotic. See Manual Enters., Inc. v. Day, 370 U.S. 478 (1962).
78. 374 U.S. 398 (1963) (holding that state cannot refuse to provide unemployment benefits to woman fired because she would not work on her Sabbath), followed in Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987) (same); see also Frazee v. Illinois Dep't of Employment Sec., 489 U.S. 829 (1989) (holding that state cannot deny unemployment benefits to person who refuses to work on personal Sabbath, not one of recognized religion).
79. See Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion). Five Justices voted to invalidate a regulation making it a criminal violation for non-family members to live together, four Justices on privacy grounds and one Justice (Justice Stevens) on takings grounds. See also Eisenstadt v. Baird, 405 U.S. 438 (1972) (holding that right of privacy protects use of contraceptives by unmarried couples). I am open to the argument that prohibiting polygamy serves a state interest in creating family structures that are relatively conducive to gender equality. Cf. VAN WAGONER, supra note 39, at 89-104 (describing frequently terrible experiences of wives in Mormon plural marriages, but noting that many other marriages were happy ones) The argument is, however, necessarily speculative and, more importantly, cannot justify the criminal penalties imposed in Reynolds.
80. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that advocacy of unlawful action cannot be criminalized unless lawless action is "imminent").
81. See Dunn v. Blumstein, 405 U.S. 330 (1972) (holding that durational residence requirements violate Equal Protection Clause).
82. See Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that state cannot force Amish children to attend public schools). Beason stands for the proposition that polygamy can be the basis for denying any kind of civil right and, read with Reynolds, for imprisonment for long periods as well. One can be critical of polygamy as an institution while still being open to tolerance of polygamy as a religious practice because of its spiritual importance for many people. See JOHN STUART MILL, ON LIBERTY 91-113 (Currin V. Shields ed., Bobbs-Merrill 1956) (1859).
83. See Employment Div. v. Smith, 494 U.S. 872 (1990).
84. See Church of the Lukumi Babula Aye v. City of Hialeah, 508 U.S. 520 (1993).
85. 42 U.S.C. §§ 2000bb-1 to 2000bb-4 (1994).
86. Id. § 2000bb-1(b).
87. See Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996), cert. granted, 117 S. Ct. 293 (1996).
88. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE 46 & app (1996). I am aware that religious diversity protects many religions dedicated to antihomosexual messages, but this is not a neutral or even rational reason to oppose diversity. Also, as openly lesbian and gay people demonstrate that homosexuality is not monstrous, religions now intolerant of homosexuality might soften their views. See HOMOSEXUALITY AND WORLD RELIGIONS (Arlene Swidler ed., 1993).
89. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE 46 & app (1996). I am aware that religious diversity protects many religions dedicated to antihomosexual messages, but this is not a neutral or even rational reason to oppose diversity. Also, as openly lesbian and gay people demonstrate that homosexuality is not monstrous, religions now intolerant of homosexuality might soften their views. See HOMOSEXUALITY AND WORLD RELIGIONS (Arlene Swidler ed., 1993).
90. I propose to set aside the popular fixation on child molestation as the consequence of tolerated sexual variation. That is no more true than the idea that human sacrifice is the consequence of tolerated religious variation. Just as the religion clauses would allow the state to reject religious precept as a justification for "mistreating" children, so the approach outlined in text would allow the state to discipline adult pedophiles who sexually "molest" children.
91. See generally ALAN P. BELL & MARTIN S. WEINBERG, HOMOSEXUALITIES: A STUDY OF DIVERSITY AMONG MEN AND WOMEN (1979) (sexual sociology); CLELLAN S. FORD & FRANK A. BEACH, PATTERNS OF SEXUAL BEHAVIOR (1951) (anthropology); HOMOSEXUALITY: RESEARCH IMPLICATIONS FOR PUBLIC POLICY (John C. Gonsiorek & James D. Weinrich eds., 1991) (psychology); ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE AMERICAN FEMALE (1953) (biology); THE MANY FACES OF HOMOSEXUALITY: ANTHROPOLOGICAL APPROACHES TO HOMOSEXUAL BEHAVIOR (Evelyn Blackwood ed., 1986) (anthropology).
92. See generally ALAN P. BELL & MARTIN S. WEINBERG, HOMOSEXUALITIES: A STUDY OF DIVERSITY AMONG MEN AND WOMEN (1979) (sexual sociology); CLELLAN S. FORD & FRANK A. BEACH, PATTERNS OF SEXUAL BEHAVIOR (1951) (anthropology); HOMOSEXUALITY: RESEARCH IMPLICATIONS FOR PUBLIC POLICY (John C. Gonsiorek & James D. Weinrich eds., 1991) (psychology); ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE AMERICAN FEMALE (1953) (biology); THE MANY FACES OF HOMOSEXUALITY: ANTHROPOLOGICAL APPROACHES TO HOMOSEXUAL BEHAVIOR (Evelyn Blackwood ed., 1986) (anthropology).
93. See generally ALAN P. BELL & MARTIN S. WEINBERG, HOMOSEXUALITIES: A STUDY OF DIVERSITY AMONG MEN AND WOMEN (1979) (sexual sociology); CLELLAN S. FORD & FRANK A. BEACH, PATTERNS OF SEXUAL BEHAVIOR (1951) (anthropology); HOMOSEXUALITY: RESEARCH IMPLICATIONS FOR PUBLIC POLICY (John C. Gonsiorek & James D. Weinrich eds., 1991) (psychology); ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE AMERICAN FEMALE (1953) (biology); THE MANY FACES OF HOMOSEXUALITY: ANTHROPOLOGICAL APPROACHES TO HOMOSEXUAL BEHAVIOR (Evelyn Blackwood ed., 1986) (anthropology).
94. See generally ALAN P. BELL & MARTIN S. WEINBERG, HOMOSEXUALITIES: A STUDY OF DIVERSITY AMONG MEN AND WOMEN (1979) (sexual sociology); CLELLAN S. FORD & FRANK A. BEACH, PATTERNS OF SEXUAL BEHAVIOR (1951) (anthropology); HOMOSEXUALITY: RESEARCH IMPLICATIONS FOR PUBLIC POLICY (John C. Gonsiorek & James D. Weinrich eds., 1991) (psychology); ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE AMERICAN FEMALE (1953) (biology); THE MANY FACES OF HOMOSEXUALITY: ANTHROPOLOGICAL APPROACHES TO HOMOSEXUAL BEHAVIOR (Evelyn Blackwood ed., 1986) (anthropology).
95. See generally ALAN P. BELL & MARTIN S. WEINBERG, HOMOSEXUALITIES: A STUDY OF DIVERSITY AMONG MEN AND WOMEN (1979) (sexual sociology); CLELLAN S. FORD & FRANK A. BEACH, PATTERNS OF SEXUAL BEHAVIOR (1951) (anthropology); HOMOSEXUALITY: RESEARCH IMPLICATIONS FOR PUBLIC POLICY (John C. Gonsiorek & James D. Weinrich eds., 1991) (psychology); ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE AMERICAN FEMALE (1953) (biology); THE MANY FACES OF HOMOSEXUALITY: ANTHROPOLOGICAL APPROACHES TO HOMOSEXUAL BEHAVIOR (Evelyn Blackwood ed., 1986) (anthropology).
96. 116 S. Ct. 1620, 1629 (1996) (Scalia, J., dissenting).
97. 42 U.S.C. § 1971-2000 (1964).
98. See also Equal Access Act, 20 U.S.C. § 4071 (1994) (prohibiting most secondary schools from discriminating against religious clubs).
99. See sources cited infra note 146.
100. 536 A.2d 1 (D.C. 1987) (en banc). I have examined this decision in an earlier work from the perspective of statutory interpretation theory, see WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 174-204 (1994), and of jurisprudential history, see William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 MICH L. REV. 707 (1991). My account of the case is drawn not only from the comprehensive judicial discussion and the trial record, but also from the oral history of the case being compiled under the auspices of the Georgetown University Law Center's Bisexual, Lesbian, and Gay Students' Association (BiLAGA).
101. 536 A.2d 1 (D.C. 1987) (en banc). I have examined this decision in an earlier work from the perspective of statutory interpretation theory, see WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 174-204 (1994), and of jurisprudential history, see William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 MICH L. REV. 707 (1991). My account of the case is drawn not only from the comprehensive judicial discussion and the trial record, but also from the oral history of the case being compiled under the auspices of the Georgetown University Law Center's Bisexual, Lesbian, and Gay Students' Association (BiLAGA).
102. Gay Rights Coalition, 536 A.2d at 8 n.5.
103. D.C. CODE ANN. § 1-2520 (1981); see also id. § 1-2501 (setting forth intent of Council).
104. See Gay Rights Coalition, 536 A.2d at 3.
105. See id. at 4-39. Judge Mack delivered the judgment of the court, but no one else joined her opinion. Chief Judge William Pryor and Judge Theodore Newman concurred in the judgment and in most of Judge Mack's analysis. Judges John Ferren and John Terry concurred in that part of the judgment requiring Georgetown to provide equal access and services and dissented from that part not requiring recognition. Judges James Belson and Frank Nebeker concurred in the part of the judgment not requiring recognition and dissented from that part requiring equal access and services. Hence, although only three judges agreed with both parts of the judgment, there were five (of seven) votes for each part.
106. Id. at 21.
107. See id. at 30-38.
108. See id. at 46 (Ferren, J., joined by Terry, J., concurring in part and dissenting in part).
109. Id. at 63 (Belson, J., joined by Nebeker, J., concurring in part and dissenting in part); see also id. at 72 (Belson, J., joined by Nebeker, J., concurring in part and dissenting in part).
110. Id. at 75 (Nebeker, J., concurring in part and dissenting in part). Recall Senator Nancy Kassebaum's belief that sexual orientation discrimination is largely on the basis of conduct, not status. See supra text accompanying note 22.
111. Gay Rights Coalition, 536 A.2d. at 75-78 (Nebeker, J., concurring in part and dissenting in part).
112. Cover, supra note 6, at 12-13.
113. See The Vatican's Congregation for the Doctrine of the Faith, The Pastoral Care of Homosexual Persons, 16 ORIGINS 377 (1986) (letter to Catholic Bishops, urging them to exclude from pastoral programs organizations in which "homosexuals" participate "without clearly stating that homosexual activity is immoral").
114. Gay Rights Coalition, 536 A.2d at 16 (opinion of Mack, J.) (citing NLRB v. Catholic Bishop, 440 U.S. 490, 507 (1979) (refusing to interpret federal labor law to regulate employment conditions of lay teachers at parochial schools)).
115. See id. at 31-38.
116. See id. at 37; see also Watkins v. United States Army, 847 F.2d 1329 (9th Cir. 1988), vacated, 875 F.2d 699 (9th Cir. 1989) (en banc) (holding sexual orientation to be "suspect" classification, in part because gay people are politically vulnerable "discrete and insular minority") (quoting United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938)); Commonwealth v. Wasson, 842 S.W.2d 487, 499-500 (Ky. 1992) (applying Watkins's heightened scrutiny because homosexuals "'form virtually a discrete and insular minority'") (quoting LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1616 (2d ed. 1988)); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915 (1989) (discussing applicability of strict scrutiny to homosexuals).
117. See id. at 37; see also Watkins v. United States Army, 847 F.2d 1329 (9th Cir. 1988), vacated, 875 F.2d 699 (9th Cir. 1989) (en banc) (holding sexual orientation to be "suspect" classification, in part because gay people are politically vulnerable "discrete and insular minority") (quoting United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938)); Commonwealth v. Wasson, 842 S.W.2d 487, 499-500 (Ky. 1992) (applying Watkins's heightened scrutiny because homosexuals "'form virtually a discrete and insular minority'") (quoting LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1616 (2d ed. 1988)); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915 (1989) (discussing applicability of strict scrutiny to homosexuals).
118. Gay Rights Coalition, 536 A.2d at 49 (Ferren, J., dissenting in part). As I explain later in this Part, the more precise race analogy would be the "with all deliberate speed" directive for school desegregation in Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II).
119. 461 U.S. 574 (1983); see also PHILIP B. HEYMANN & LANCE LIEBMAN, THE LEGAL RESPONSIBILITY OF LAWYERS: CASE STUDIES 139 (1988) (providing background of Bob Jones policies); Cover, supra note 6, at 63-68 (criticizing Court's decision in Bob Jones).
120. Bob Jones, 461 U.S. at 604.
121. See Gay Rights Coalition, 536 A.2d at 76-78 (Nebeker, J., concurring in part and dissenting in part).
122. See id. at 68 (Belson, J., dissenting in part); see also id. at 71-72 (Belson, J., dissenting in part) (making same point regarding free exercise right).
123. 430 U.S. 705 (1977).
124. Id. at 715.
125. See id. at 716-17. The Wooley rule against forced speech was derived from West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), which held that school children cannot be required to pledge allegiance to the flag if the pledge is inconsistent with their religious belief, and was applied in Pacific Gas & Electric Co. v. Public Utilities, 475 U.S. 1 (1986), to prevent the state from requiring a public utility to act as a conduit for an ideological message with which it disagreed.
126. Bob Jones poses the greater challenge to Judge Mack's position, because Mack joined Judge Newman's concurring opinion, which found the District's interest in eliminating sexual orientation discrimination no less important than the compelling, and quasiconstitutional, interest in eliminating racial discrimination. See Gay Rights Coalition, 536 A.2d at 46 (Newman, J., concurring). Because Judges Ferren and Terry also joined that part of Judge Newman's opinion, that part was the only reasoning that commanded a majority (four of seven) of the en banc court. This presented Judge Mack with a dilemma. Probably, she would have required Georgetown (or a Bob Jones-like university) to recognize an African-American student group and would have overridden free exercise objections. But if fighting sexual orientation discrimination is just as compelling a state policy as fighting racial discrimination, as Mack and three colleagues expressly held, why should a university be able to escape recognizing a sexual orientation-based group, when it would have to recognize a race-based group notwithstanding religious objections? One way to resolve Judge Mack's dilemma would be to read Bob Jones narrowly. Cover, supra note 6, criticizes the Court's decision for disrespecting the religious community without taking stronger responsibility for the act of jurispathy. See also WILLIAM N. ESKRIDGE, JR. & PHILIP B. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 826-28 (2d ed. 1995). Notably, the decision has not been applied by the Court to restrict nomic community in other contexts and may be a constitutional outlier.
127. Gay Rights Coalition, 536 A.2d at 31 (opinion of Mack, J.). Compare id. (opinion of Mack, J.), with id. at 56-60 (Ferren, J., dissenting in part) (emphasizing students' rights to "full citizenship" in university community as guaranteed by Human Rights Act), and id. at 67-74 (Belson, J., dissenting in part) (repeating focus on Georgetown's "rights" and evils of state "compulsion"), and id. at 75 (Nebeker, J., dissenting in pan) (raising similar arguments). For a detailed statement of Judge Mack's position, see also id. at 30-39 (opinion of Mack, J.).
128. See id. at 33-38 (opinion of Mack, J.).
129. See ESKRIDGE, supra note 81, at 185-92. For discussion of the development of feminist and republican jurisprudence, see Mari J. Matsuda, Pragmatism Modified and the False Consciousness Problem, 63 S. CAL. L. REV. 1763 (1990); Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN'S RTS. L. REP. 7 (1989); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Martha Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 HARV. L. REV. 10 (1987); Margaret Jane Radin, The Pragmatist and the Feminist, in PRAGMATISM IN LAW AND SOCIETY 127 (Michael Brint & William Weaver eds., 1991); and Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877 (1988).
130. See ESKRIDGE, supra note 81, at 185-92. For discussion of the development of feminist and republican jurisprudence, see Mari J. Matsuda, Pragmatism Modified and the False Consciousness Problem, 63 S. CAL. L. REV. 1763 (1990); Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN'S RTS. L. REP. 7 (1989); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Martha Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 HARV. L. REV. 10 (1987); Margaret Jane Radin, The Pragmatist and the Feminist, in PRAGMATISM IN LAW AND SOCIETY 127 (Michael Brint & William Weaver eds., 1991); and Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877 (1988).
131. See ESKRIDGE, supra note 81, at 185-92. For discussion of the development of feminist and republican jurisprudence, see Mari J. Matsuda, Pragmatism Modified and the False Consciousness Problem, 63 S. CAL. L. REV. 1763 (1990); Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN'S RTS. L. REP. 7 (1989); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Martha Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 HARV. L. REV. 10 (1987); Margaret Jane Radin, The Pragmatist and the Feminist, in PRAGMATISM IN LAW AND SOCIETY 127 (Michael Brint & William Weaver eds., 1991); and Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877 (1988).
132. See ESKRIDGE, supra note 81, at 185-92. For discussion of the development of feminist and republican jurisprudence, see Mari J. Matsuda, Pragmatism Modified and the False Consciousness Problem, 63 S. CAL. L. REV. 1763 (1990); Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN'S RTS. L. REP. 7 (1989); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Martha Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 HARV. L. REV. 10 (1987); Margaret Jane Radin, The Pragmatist and the Feminist, in PRAGMATISM IN LAW AND SOCIETY 127 (Michael Brint & William Weaver eds., 1991); and Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877 (1988).
133. See ESKRIDGE, supra note 81, at 185-92. For discussion of the development of feminist and republican jurisprudence, see Mari J. Matsuda, Pragmatism Modified and the False Consciousness Problem, 63 S. CAL. L. REV. 1763 (1990); Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN'S RTS. L. REP. 7 (1989); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Martha Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 HARV. L. REV. 10 (1987); Margaret Jane Radin, The Pragmatist and the Feminist, in PRAGMATISM IN LAW AND SOCIETY 127 (Michael Brint & William Weaver eds., 1991); and Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877 (1988).
134. See ESKRIDGE, supra note 81, at 185-92. For discussion of the development of feminist and republican jurisprudence, see Mari J. Matsuda, Pragmatism Modified and the False Consciousness Problem, 63 S. CAL. L. REV. 1763 (1990); Mari J. Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN'S RTS. L. REP. 7 (1989); Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Martha Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 HARV. L. REV. 10 (1987); Margaret Jane Radin, The Pragmatist and the Feminist, in PRAGMATISM IN LAW AND SOCIETY 127 (Michael Brint & William Weaver eds., 1991); and Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877 (1988).
135. Vacating the panel opinion by Judge Ferren, with Judge Mack in partial dissent, the Court of Appeals agreed to hear the case en banc without even waiting for a motion from Georgetown. This was a signal that there was not a court majority for the Ferren position, and there were good strategic reasons for the students to tack to new winds. According to Lori Jean (one of two lead student plaintiffs) and the students' attorney, Richard Gross, the plaintiffs were originally reluctant to argue the Mack position but were persuaded to do so because there was no other way to win the case. See GULC/Bi-LAGA Oral History of Gay Rights Coalition, Interview Tapes for Lori Jean (Aug. 8, 1991) and Richard Gross (Sept. 15, 1991). They were ultimately delighted that her position prevailed.
136. Samuel Warren and Louis Brandeis wrote of the press's ability to assure that "what is whispered in the closet shall be proclaimed from the house-tops." Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 195 (1890).
137. JOHN HORNE BURNS, LUCIFER WITH A BOOK (1949).
138. The etching kept in the closet was of three people writhing in sexual ecstasy. The implication is that a blond man is deriving sexual pleasure from intercourse with both a man and a woman. See id. at 105-06.
139. Ralph DuBochet, a student attracted to Hudson, forms an ambiguous link with Hudson when he surprises him looking at the closeted etching, see id., but Hudson rebuffs further efforts at intimate connection by refusing to "uncloset" the etching to Ralph again, see id. at 132-33.
140. When the school turns militarist under the leadership of a bachelor professor who is fascinated with and repelled by Hudson's closet, and of a stormtrooper student who tries to penetrate Hudson's closet in a clumsy seduction attempt, they turn on the man who rebuffed them. The bachelor professor even invades Hudson's closet and exposes his polymorphous sexuality.
141. For a later reference to homosexuality as a "private skeleton in the closet," see Marlin Prentiss, Are Homosexuals Security Risks?, ONE, INC., Dec. 1955, at 4.
142. Michelle Duloc & Rene Autil, Fluff, Buff, and Butch: Spy vs. Spy vs. Yourself, VECTOR, July 1968, at 11; see also Samuel R. Delany, Coming/Out, in BOYS LIKE US: GAY WRITERS TELL THEIR COMING OUT STORIES 1, 14 (Patrick Merla ed., 1996) (explaining that "closet queens" were men who enjoyed fact that their families and friends did not know of their deviant sexuality). A competing metaphor for the closet was the masquerade. See, e.g., Lisa Ben, Masquerade, VICE VERSA, Oct. 1947, reprinted in LADDER, Oct. 1958, at 6-10, 26-29. Sharing one's secret orientation with others was considered discarding or taking off the mask. See, e.g., Bob Bishop, Discard the Mask, MATTACHINE REV., Apr. 1958, at 14-16, 21-24. The closet metaphor did not overtake the mask metaphor until the 1960s.
143. Michelle Duloc & Rene Autil, Fluff, Buff, and Butch: Spy vs. Spy vs. Yourself, VECTOR, July 1968, at 11; see also Samuel R. Delany, Coming/Out, in BOYS LIKE US: GAY WRITERS TELL THEIR COMING OUT STORIES 1, 14 (Patrick Merla ed., 1996) (explaining that "closet queens" were men who enjoyed fact that their families and friends did not know of their deviant sexuality). A competing metaphor for the closet was the masquerade. See, e.g., Lisa Ben, Masquerade, VICE VERSA, Oct. 1947, reprinted in LADDER, Oct. 1958, at 6-10, 26-29. Sharing one's secret orientation with others was considered discarding or taking off the mask. See, e.g., Bob Bishop, Discard the Mask, MATTACHINE REV., Apr. 1958, at 14-16, 21-24. The closet metaphor did not overtake the mask metaphor until the 1960s.
144. Michelle Duloc & Rene Autil, Fluff, Buff, and Butch: Spy vs. Spy vs. Yourself, VECTOR, July 1968, at 11; see also Samuel R. Delany, Coming/Out, in BOYS LIKE US: GAY WRITERS TELL THEIR COMING OUT STORIES 1, 14 (Patrick Merla ed., 1996) (explaining that "closet queens" were men who enjoyed fact that their families and friends did not know of their deviant sexuality). A competing metaphor for the closet was the masquerade. See, e.g., Lisa Ben, Masquerade, VICE VERSA, Oct. 1947, reprinted in LADDER, Oct. 1958, at 6-10, 26-29. Sharing one's secret orientation with others was considered discarding or taking off the mask. See, e.g., Bob Bishop, Discard the Mask, MATTACHINE REV., Apr. 1958, at 14-16, 21-24. The closet metaphor did not overtake the mask metaphor until the 1960s.
145. Michelle Duloc & Rene Autil, Fluff, Buff, and Butch: Spy vs. Spy vs. Yourself, VECTOR, July 1968, at 11; see also Samuel R. Delany, Coming/Out, in BOYS LIKE US: GAY WRITERS TELL THEIR COMING OUT STORIES 1, 14 (Patrick Merla ed., 1996) (explaining that "closet queens" were men who enjoyed fact that their families and friends did not know of their deviant sexuality). A competing metaphor for the closet was the masquerade. See, e.g., Lisa Ben, Masquerade, VICE VERSA, Oct. 1947, reprinted in LADDER, Oct. 1958, at 6-10, 26-29. Sharing one's secret orientation with others was considered discarding or taking off the mask. See, e.g., Bob Bishop, Discard the Mask, MATTACHINE REV., Apr. 1958, at 14-16, 21-24. The closet metaphor did not overtake the mask metaphor until the 1960s.
146. Michelle Duloc & Rene Autil, Fluff, Buff, and Butch: Spy vs. Spy vs. Yourself, VECTOR, July 1968, at 11; see also Samuel R. Delany, Coming/Out, in BOYS LIKE US: GAY WRITERS TELL THEIR COMING OUT STORIES 1, 14 (Patrick Merla ed., 1996) (explaining that "closet queens" were men who enjoyed fact that their families and friends did not know of their deviant sexuality). A competing metaphor for the closet was the masquerade. See, e.g., Lisa Ben, Masquerade, VICE VERSA, Oct. 1947, reprinted in LADDER, Oct. 1958, at 6-10, 26-29. Sharing one's secret orientation with others was considered discarding or taking off the mask. See, e.g., Bob Bishop, Discard the Mask, MATTACHINE REV., Apr. 1958, at 14-16, 21-24. The closet metaphor did not overtake the mask metaphor until the 1960s.
147. GORE VIDAL, THE CITY AND THE PILLAR 172 (rev. ed. 1965). The quotation in the text is from the novel as revised by Vidal. The original 1948 edition read: "You can come with me if you want to. You'll meet most of the prominent ones in town; I think it'd be fun." GORE VIDAL, THE CITY AND THE PILLAR 233 (1948).
148. GORE VIDAL, THE CITY AND THE PILLAR 172 (rev. ed. 1965). The quotation in the text is from the novel as revised by Vidal. The original 1948 edition read: "You can come with me if you want to. You'll meet most of the prominent ones in town; I think it'd be fun." GORE VIDAL, THE CITY AND THE PILLAR 233 (1948).
149. See, e.g., Delany, supra note 116, at 13; Andrew Holleran, Memories of Heidelberg, in BOYS LIKE US, supra note 116, at 88, 97.
150. See, e.g., Delany, supra note 116, at 13; Andrew Holleran, Memories of Heidelberg, in BOYS LIKE US, supra note 116, at 88, 97.
151. See Barbara Stephens, The Coming Out of Martos, LADDER, May 1958, at 14-16, 25-26. Roger Austen refers to John Horne Burns's statement, apparently made during the 1950s, that writing Lucifer with a Book reflected Burns's decision to "come out of the cloister." Unfortunately, Austen provides no reference or precise date for this quotation. See ROGER AUSTEN, PLAYING THE GAME: THE HOMOSEXUAL NOVEL IN AMERICA 110 (1977).
152. See Barbara Stephens, The Coming Out of Martos, LADDER, May 1958, at 14-16, 25-26. Roger Austen refers to John Horne Burns's statement, apparently made during the 1950s, that writing Lucifer with a Book reflected Burns's decision to "come out of the cloister." Unfortunately, Austen provides no reference or precise date for this quotation. See ROGER AUSTEN, PLAYING THE GAME: THE HOMOSEXUAL NOVEL IN AMERICA 110 (1977).
153. A.E. Smith, Coming Out, ONE, INC., June 1962, at 6, 7.
154. Id.
155. FLORIDA LEGISLATIVE INVESTIGATION COMM., HOMOSEXUALITY AND CITIZENSHIP IN FLORIDA 14 (1964). Earlier in the report, the Committee quoted an investigator, who said: "Since the homosexual has seen fit to come out into the open and get himself accepted by society, I think it is about time that thinking members of society . . . realize that if we don't stand up and start fighting, we are going to lose these battles in a very real war of morality." Id. For a poignant example of this phenomenon from the South of the 1950s, see Allan Gurganus, He's One, Too, in BOYS LIKE US, supra note 116, at 40, 40-72.
156. FLORIDA LEGISLATIVE INVESTIGATION COMM., HOMOSEXUALITY AND CITIZENSHIP IN FLORIDA 14 (1964). Earlier in the report, the Committee quoted an investigator, who said: "Since the homosexual has seen fit to come out into the open and get himself accepted by society, I think it is about time that thinking members of society . . . realize that if we don't stand up and start fighting, we are going to lose these battles in a very real war of morality." Id. For a poignant example of this phenomenon from the South of the 1950s, see Allan Gurganus, He's One, Too, in BOYS LIKE US, supra note 116, at 40, 40-72.
157. Kay Tobin & Barbara Gittings, Interview with Ernestine [Eckstein], LADDER, June 1966, at 4, 9; see also James Colton, The Homosexual Identity, LADDER, Sept. 1968, at 4-8.
158. Kay Tobin & Barbara Gittings, Interview with Ernestine [Eckstein], LADDER, June 1966, at 4, 9; see also James Colton, The Homosexual Identity, LADDER, Sept. 1968, at 4-8.
159. Duloc & Autil, supra note 116, at 11.
160. See, e.g., OUT OF THE CLOSETS: VOICES OF GAY LIBERATION (Karla Jay & Allen Young eds., 1972).
161. The term originated in Adrienne Rich, Compulsory Homosexuality and Lesbian Existence, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 177 (Ann Snitow et al. eds., 1983). The point in the text reflects women's different experience in particular. Although lesbians contributed to the "coming-out discourse," see supra notes 116, 123, 125, it was primarily a male
162. The term originated in Adrienne Rich, Compulsory Homosexuality and Lesbian Existence, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 177 (Ann Snitow et al. eds., 1983). The point in the text reflects women's different experience in particular. Although lesbians contributed to the "coming-out discourse," see supra notes 116, 123, 125, it was primarily a male discourse describing gay and bisexual men's experience. Women's experience of sexual self-identity has tended to be more fluid or gradual and less act-oriented than that of men. See James T. Sears, The Impact of Gender and Race on Growing Up Lesbian and Gay in the South, 1 NAT'L WOMEN'S STUD. ASS'N J. 422, 437 (1989).
163. See, e.g., Dennis Hunter, The Cure, in BOYS LIKE US, supra note 116, at 284, 292.
164. See SEDGWICK, supra note 27, at 72; see also Yoshino, supra note 35, at 1794-802.
165. John C. Gonsiorek & James R. Rudolph, Homosexual Identity: Coming Out and Other Developmental Events, in HOMOSEXUALITY, supra note 76, at 161 (surveying psychological literature and setting forth model of healthy psychological development that depends on gay person's comfort); see also I. Schippers, Gay Affirmative Counseling and Psychotherapy in the Netherlands (1990) (unpublished manuscript) (noting that "acceptance and appreciation process" better captures the coming to terms with gay self-identity, especially for lesbians, than "coming out"), discussed in id. at 169.
166. John C. Gonsiorek & James R. Rudolph, Homosexual Identity: Coming Out and Other Developmental Events, in HOMOSEXUALITY, supra note 76, at 161 (surveying psychological literature and setting forth model of healthy psychological development that depends on gay person's comfort); see also I. Schippers, Gay Affirmative Counseling and Psychotherapy in the Netherlands (1990) (unpublished manuscript) (noting that "acceptance and appreciation process" better captures the coming to terms with gay self-identity, especially for lesbians, than "coming out"), discussed in id. at 169.
167. See Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 595 P.2d 592, 610-11 (Cal. 1979) (holding that self-identity of gay people is "political expression" under California law).
168. See Colton, supra note 123, at 4-5.
169. See Eskridge, supra note 4; see also BARRY D. ADAM, THE RISE OF A GAY AND LESBIAN MOVEMENT (1987); Bruce Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 719-21 (1985) (discussing special organizational problems faced by "anonymous" and stigmatized minorities).
170. See Eskridge, supra note 4; see also BARRY D. ADAM, THE RISE OF A GAY AND LESBIAN MOVEMENT (1987); Bruce Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 719-21 (1985) (discussing special organizational problems faced by "anonymous" and stigmatized minorities).
171. See Eskridge, supra note 4; see also BARRY D. ADAM, THE RISE OF A GAY AND LESBIAN MOVEMENT (1987); Bruce Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 719-21 (1985) (discussing special organizational problems faced by "anonymous" and stigmatized minorities).
172. On the double bind, see SEDGWICK, supra note 27, at 69-71; and Janet Halley, The Construction of Heterosexuality, in FEAR OF A QUEER PLANET: QUEER POLITICS AND SOCIAL THEORY 82, 82-99 (Michael Warner ed., 1993).
173. On the double bind, see SEDGWICK, supra note 27, at 69-71; and Janet Halley, The Construction of Heterosexuality, in FEAR OF A QUEER PLANET: QUEER POLITICS AND SOCIAL THEORY 82, 82-99 (Michael Warner ed., 1993).
174. On the price of the double bind to human beings thus stigmatized, and their partners, see BRUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN AMERICAN SOCIETY 106-07 (1993); LAUD HUMPHREYS, OUT OF THE CLOSETS: THE SOCIOLOGY OF HOMOSEXUAL LIBERATION (1972); Linda Garnets et al., Violence and Victimization of Lesbians and Gay Men: Mental Health Consequences, in HATE CRIMES 207 (Gregory M. Herek & Kevin T. Berrill eds., 1992); Sue Kiefer Hammersmith & Martin Weinberg, Homosexual Identity: Commitment, Adjustment, and Significant Others, 36 SOCIOMETRY 56 (1973); and Gregory M. Herek, Stigma, Prejudice, and Violence Against Lesbians and Gay Men, in HOMOSEXUALITY, supra note 76, at 60. See generally GORDON W. ALLPORT, THE NATURE OF PREJUDICE (1954) (discussing destructive effect of prejudice on its objects).
175. On the price of the double bind to human beings thus stigmatized, and their partners, see BRUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN AMERICAN SOCIETY 106-07 (1993); LAUD HUMPHREYS, OUT OF THE CLOSETS: THE SOCIOLOGY OF HOMOSEXUAL LIBERATION (1972); Linda Garnets et al., Violence and Victimization of Lesbians and Gay Men: Mental Health Consequences, in HATE CRIMES 207 (Gregory M. Herek & Kevin T. Berrill eds., 1992); Sue Kiefer Hammersmith & Martin Weinberg, Homosexual Identity: Commitment, Adjustment, and Significant Others, 36 SOCIOMETRY 56 (1973); and Gregory M. Herek, Stigma, Prejudice, and Violence Against Lesbians and Gay Men, in HOMOSEXUALITY, supra note 76, at 60. See generally GORDON W. ALLPORT, THE NATURE OF PREJUDICE (1954) (discussing destructive effect of prejudice on its objects).
176. On the price of the double bind to human beings thus stigmatized, and their partners, see BRUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN AMERICAN SOCIETY 106-07 (1993); LAUD HUMPHREYS, OUT OF THE CLOSETS: THE SOCIOLOGY OF HOMOSEXUAL LIBERATION (1972); Linda Garnets et al., Violence and Victimization of Lesbians and Gay Men: Mental Health Consequences, in HATE CRIMES 207 (Gregory M. Herek & Kevin T. Berrill eds., 1992); Sue Kiefer Hammersmith & Martin Weinberg, Homosexual Identity: Commitment, Adjustment, and Significant Others, 36 SOCIOMETRY 56 (1973); and Gregory M. Herek, Stigma, Prejudice, and Violence Against Lesbians and Gay Men, in HOMOSEXUALITY, supra note 76, at 60. See generally GORDON W. ALLPORT, THE NATURE OF PREJUDICE (1954) (discussing destructive effect of prejudice on its objects).
177. On the price of the double bind to human beings thus stigmatized, and their partners, see BRUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN AMERICAN SOCIETY 106-07 (1993); LAUD HUMPHREYS, OUT OF THE CLOSETS: THE SOCIOLOGY OF HOMOSEXUAL LIBERATION (1972); Linda Garnets et al., Violence and Victimization of Lesbians and Gay Men: Mental Health Consequences, in HATE CRIMES 207 (Gregory M. Herek & Kevin T. Berrill eds., 1992); Sue Kiefer Hammersmith & Martin Weinberg, Homosexual Identity: Commitment, Adjustment, and Significant Others, 36 SOCIOMETRY 56 (1973); and Gregory M. Herek, Stigma, Prejudice, and Violence Against Lesbians and Gay Men, in HOMOSEXUALITY, supra note 76, at 60. See generally GORDON W. ALLPORT, THE NATURE OF PREJUDICE (1954) (discussing destructive effect of prejudice on its objects).
178. On the price of the double bind to human beings thus stigmatized, and their partners, see BRUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN AMERICAN SOCIETY 106-07 (1993); LAUD HUMPHREYS, OUT OF THE CLOSETS: THE SOCIOLOGY OF HOMOSEXUAL LIBERATION (1972); Linda Garnets et al., Violence and Victimization of Lesbians and Gay Men: Mental Health Consequences, in HATE CRIMES 207 (Gregory M. Herek & Kevin T. Berrill eds., 1992); Sue Kiefer Hammersmith & Martin Weinberg, Homosexual Identity: Commitment, Adjustment, and Significant Others, 36 SOCIOMETRY 56 (1973); and Gregory M. Herek, Stigma, Prejudice, and Violence Against Lesbians and Gay Men, in HOMOSEXUALITY, supra note 76, at 60. See generally GORDON W. ALLPORT, THE NATURE OF PREJUDICE (1954) (discussing destructive effect of prejudice on its objects).
179. On the price of the double bind to human beings thus stigmatized, and their partners, see BRUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN AMERICAN SOCIETY 106-07 (1993); LAUD HUMPHREYS, OUT OF THE CLOSETS: THE SOCIOLOGY OF HOMOSEXUAL LIBERATION (1972); Linda Garnets et al., Violence and Victimization of Lesbians and Gay Men: Mental Health Consequences, in HATE CRIMES 207 (Gregory M. Herek & Kevin T. Berrill eds., 1992); Sue Kiefer Hammersmith & Martin Weinberg, Homosexual Identity: Commitment, Adjustment, and Significant Others, 36 SOCIOMETRY 56 (1973); and Gregory M. Herek, Stigma, Prejudice, and Violence Against Lesbians and Gay Men, in HOMOSEXUALITY, supra note 76, at 60. See generally GORDON W. ALLPORT, THE NATURE OF PREJUDICE (1954) (discussing destructive effect of prejudice on its objects).
180. For the most fascinating legal examples, see Rowland v. Mad River Local School District, 730 F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009 (1985); and Acanfora v. Board of Education of Montgomery County, 491 F.2d 498 (4th Cir. 1974).
181. See Paul Gibson, Gay and Lesbian Youth Suicide, in U.S. DEP'T OF HEALTH & HUMAN SERVS. YOUTH SUICIDE REPORT 110 (1989) (explaining how social stigma of homosexuality and lack of support from families and peers lead directly to high suicide rates for lesbian and gay adolescents).
182. See, e.g., JAMES BALDWIN, GIOVANNI'S ROOM (1956); LILLIAN HELLMAN, THE CHILDREN'S HOUR (1934).
183. See, e.g., JAMES BALDWIN, GIOVANNI'S ROOM (1956); LILLIAN HELLMAN, THE CHILDREN'S HOUR (1934).
184. Cohn was clearly a gay man, see NICHOLAS VON HOFFMAN, CITIZEN COHN (1988), and the bachelor Senator Joseph McCarthy operated under that suspicion, which he sought to allay by marrying his longtime assistant, Jean Kerr, in 1953, see DAVID M. OSHINSKY, A CONSPIRACY SO IMMENSE: THE WORLD OF JOE MCCARTHY 310-11, 328-29 (1983). There is substantial but unverified evidence that J. Edgar Hoover was a cross-dressing homosexual married for 40 years to his best friend and deputy, Clyde Tolson.
185. Cohn was clearly a gay man, see NICHOLAS VON HOFFMAN, CITIZEN COHN (1988), and the bachelor Senator Joseph McCarthy operated under that suspicion, which he sought to allay by marrying his longtime assistant, Jean Kerr, in 1953, see DAVID M. OSHINSKY, A CONSPIRACY SO IMMENSE: THE WORLD OF JOE MCCARTHY 310-11, 328-29 (1983). There is substantial but unverified evidence that J. Edgar Hoover was a cross-dressing homosexual married for 40 years to his best friend and deputy, Clyde Tolson.
186. See ANTHONY SUMMERS, OFFICIAL AND CONFIDENTIAL: THE SECRET LIFE OF J. EDGAR HOOVER (1993). It is clear that Toison and Hoover shared an emotional intimacy and association without any other close parallel in Hoover's life.
187. See SMITH, supra note 11, at 42-47.
188. See generally NETANYAHU, supra note 30.
189. The story of the "secret Jews" is told in TRUDI ALEXY, THE MEZUZAH IN THE MADONNA'S FOOT 253-92 (1993), and is discussed in Chai R. Feldblum, Sexual Orientation, Morality and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 327-30 (1996). The Alexy account is anecdotal and should be discounted by the scholarship of Benzion Netanyahu, who demonstrates that most Marranos abandoned their Jewish faith and that very few "secret Jews" remained in Spain when the Inquisition was established in 1482. See NETANYAHU, supra note 30, at xvii-xxi.
190. The story of the "secret Jews" is told in TRUDI ALEXY, THE MEZUZAH IN THE MADONNA'S FOOT 253-92 (1993), and is discussed in Chai R. Feldblum, Sexual Orientation, Morality and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 327-30 (1996). The Alexy account is anecdotal and should be discounted by the scholarship of Benzion Netanyahu, who demonstrates that most Marranos abandoned their Jewish faith and that very few "secret Jews" remained in Spain when the Inquisition was established in 1482. See NETANYAHU, supra note 30, at xvii-xxi.
191. See ALLAN BÉRUBÉ, COMING OUT UNDER FIRE: THE HISTORY OF GAY MEN AND WOMEN IN WORLD WAR TWO (1990).
192. The First Amendment even protects the Ku Klux Klan from Kulturkampf, unless its members tangibly harm other people, see Brandenburg v. Ohio, 395 U.S. 444 (1969), and sometimes even then, see R.A.V. v. St. Paul, 505 U.S. 377 (1992). 144. Note that if Georgetown were a public university subject to the First Amendment but not an antidiscrimination law, it would probably have denied it was excluding the gay group because of the students' expression and contended that it was only considering their sexual orientation and its associated behavior. See Gay Liberation v. University of Missouri, 558 F.2d 848 (8th Cir. 1977); Gay Students Org. of Univ. of N.H. v. Bonner, 509 F.2d 652 (1st Cir. 1974).
193. One might distinguish Georgetown's forced masquerade from the students' forced masquerade. Pushing an institution into a closet does not harm human lives as much as doing that to individuals, and the Roman Catholic nomos is in no important way threatened by this closet. I doubt these distinctions as a matter of fact. The lives of individual priests and officials at Georgetown in the 1980s (some of them homosexuals who had chosen lives of celibacy, others who were sexually active) were implicated by forced recognition. To the extent that the latter distinction is an appeal to comparative powerlessness in our society, one should consider that anti-Catholic prejudice remains palpable in the United States, that Georgetown is in the uncomfortable position of being a religious island surrounded by a sea of secularity in the nation's capital, and that the District government sometimes treats gays with more respect than it treats Georgetown.
194. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
195. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
196. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
197. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
198. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
199. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
200. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
201. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
202. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
203. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
204. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
205. The District's Human Rights Act (1973 and 1977) was the first jurisdictionwide law to this effect; California (1979) and Wisconsin (1982) were the first states to protect against anti-gay job discrimination by court decision and statute, respectively. See D.C. CODE ANN. § 1-2512 (1981); Gay Law Students Ass'n v. Pacific Tel. & Tel., 595 P.2d 592 (Cal. 1979); WIS. STAT. ANN. § 101.22 (West 1988 & 1996 Supp.). Massachusetts (1989), New Jersey (1991), Hawaii (1991), Minnesota (1991). Vermont (1991), California (1992), Connecticut (1993), and Rhode Island (1995) have all adopted job discrimination statutes in the last decade. See MASS. GEN. LAWS ANN. ch. 272, § 98, ch. 151B, § 4 (West 1990 & 1996 Supp.); N.J. STAT. ANN. §§ 5-4, 5-12 (West 1991); HAW. REV. STAT. § 368-1 (Supp. 1996); MINN. STAT. ANN. § 363.03 (West 1993); VT. STAT. ANN. tit. 21, § 495 (1992); CAL. LAB. CODE § 1102.1 (West 1992); CONN. GEN. STAT. ANN. §§ 46a-81c (West 1994); R.I. GEN. LAWS §§ 28-5-5, 28-5-7 (1995). More than 150 municipal and county jurisdictions have adopted similar policies. See NAN HUNTER ET AL., THE RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS 204-08 (3d ed. 1992). In 1996, the U.S. Senate came within one vote of passing the federal Employment Non-Discrimination Act (ENDA) of 1995, S. 2056, 104th Cong. (1996), which would have prohibited sexual orientation discrimination in the entire country.
206. 468 U.S. 609 (1984).
207. See id. at 622-29.
208. See Cover, supra note 6, at 40-44, Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601 (1986).
209. For discussions of alternative ways to treat colliding norms, see ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (Bruce Patton ed., 2d ed. 1992); CAROL GILLIGAN, IN A DIFFERENT VOICE (1982); Melvin Aron Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking, 89 HARV. L. REV. 637 (1976).
210. For discussions of alternative ways to treat colliding norms, see ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (Bruce Patton ed., 2d ed. 1992); CAROL GILLIGAN, IN A DIFFERENT VOICE (1982); Melvin Aron Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking, 89 HARV. L. REV. 637 (1976).
211. For discussions of alternative ways to treat colliding norms, see ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (Bruce Patton ed., 2d ed. 1992); CAROL GILLIGAN, IN A DIFFERENT VOICE (1982); Melvin Aron Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking, 89 HARV. L. REV. 637 (1976).
212. See Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 46-47 (D.C. 1987) (Ferren, J., concurring in part and dissenting in part); id. at 62 (Belsen, J., concurring in part and dissenting in part).
213. Judge Mack held that requiring Georgetown to "recognize" Gay Rights Coalition would be identity-speech censorship and therefore refused to interpret the Human Rights Act to compel such recognition, but she interpreted the Act to require Georgetown to provide the students equal access to facilities and services so that they could carry on their nomic activities. See id. at 25-30 (opinion of Mack, J.). Judge Mack was playing upon ambiguities in the word "recognition." She was treating it as an expression of Georgetown's identity, but university recognition at Georgetown usually connotes nothing more than an administrative ticket student groups have to punch to get the tangible benefits (an office, a phone, university publicity for their events) of being a student organization. Georgetown itself did not consider recognition and tangible benefits to be different, nor had the students in their original challenge. See id. at 20 n.16. Only Mack insisted upon their disaggregation into an identity component (recognition) that could not be regulated and a conduct component (tangible benefits) that could be. See id. While this move can be criticized as a semantic formalism, it served the functional goal of affirming the anticensorship rule on behalf of both parties: The students should be free to express themselves within the university community, but Georgetown should be equally free to express its commitment to compulsory heterosexuality. Importantly, once Mack announced her judgment, both the students and the university found her disaggregation liberating. See Letter from Timothy J. Healy, S.J., to the Faculty and Alumni of Georgetown University (Mar. 28, 1988) (on file with the Yale Law Journal).
214. See, e.g., Rodney Christopher, Explaining It to Dad, in BOYS LIKE US, supra note 116, at 302-11 (describing author's father who will not discuss son's sexuality). For other examples of accommodation, see Ron Caldwell, Out-Takes, in BOYS LIKE US, supra note 116, at 270 (recounting author's promise to father not to tell his younger brother about his homosexuality until his brother's high school graduation); and William Sterling Walker, January 18, 1989, in BOYS LIKE US, supra note 116, at 293-301 (describing mother who accepts her son's homosexuality but does not want him sharing food with his nieces and nephews).
215. See, e.g., Rodney Christopher, Explaining It to Dad, in BOYS LIKE US, supra note 116, at 302-11 (describing author's father who will not discuss son's sexuality). For other examples of accommodation, see Ron Caldwell, Out-Takes, in BOYS LIKE US, supra note 116, at 270 (recounting author's promise to father not to tell his younger brother about his homosexuality until his brother's high school graduation); and William Sterling Walker, January 18, 1989, in BOYS LIKE US, supra note 116, at 293-301 (describing mother who accepts her son's homosexuality but does not want him sharing food with his nieces and nephews).
216. See, e.g., Rodney Christopher, Explaining It to Dad, in BOYS LIKE US, supra note 116, at 302-11 (describing author's father who will not discuss son's sexuality). For other examples of accommodation, see Ron Caldwell, Out-Takes, in BOYS LIKE US, supra note 116, at 270 (recounting author's promise to father not to tell his younger brother about his homosexuality until his brother's high school graduation); and William Sterling Walker, January 18, 1989, in BOYS LIKE US, supra note 116, at 293-301 (describing mother who accepts her son's homosexuality but does not want him sharing food with his nieces and nephews).
217. See Philip Bockman, Fishing Practice, in BOYS LIKE US, supra note 116, at 73-81.
218. Id. at 80.
219. See id.
220. See id. at 81.
221. There was no assurance this would occur, but Judge Mack's opinion gave it a chance. I joined the Georgetown Law Center's faculty soon after the Court of Appeals' decision and became the sponsor of the Law Center's bisexual, gay, and lesbian student group. I found the Law Center completely supportive of student efforts to create a healthy gaylesbian community and to provide informative programs for all students and faculty. Father Alexei Michalencko, the Law Center's Catholic chaplain, has been a counselor for students of all orientations and has materially supported gay scholarship as well as gay community at the Law Center. The main campus was also supportive, and the priests who run the school have been kind and respectful of gay identity and issues. The apparatus Mack set in motion has impelled the students and the priests into a productive dialogue, where agreement and mutual respect have dominated disagreement. In 1988, Congress enacted the Armstrong Amendment, Pub. L. No. 100-462, § 145, 102 Stat. 2269-314 (1988), which conditioned federal funding for the District upon the City Council's adoption of an amendment to the Human Rights Act that would relieve religious institutions of obligations not to discriminate on the basis of sexual orientation. Significantly, Georgetown lent no support to that amendment, which the courts invalidated for its coercion of speech by the Council. See Clarke v. United States, 886 F.2d404 (D.C. Cir. 1989), vacated as moot, 915 F.2d 699 (D.C. Cir. 1990) (en banc). Congress then directly enacted the amendment pursuant to its constitutional power over the District; Georgetown neither supported the second Armstrong Amendment nor sought to take advantage of it. Judge Mack's principled accommodation held firm.
222. In fact, one gay author believes that the only desirable nondiscrimination rules are those applicable to state policy. See ANDREW SULLIVAN, VIRTUALLY NORMAL 171 (1995).
223. One can imagine other state mechanisms that might help: education for adults as well as minors about the "facts" concerning homosexuality, stale counseling services for parents or their gay children, and mediation of parent-child disputes.
224. See Essex Hemphill, The Other Invisible Man, in BOYS LIKE US, supra note 116, at 176-85.
225. Id. at 184.
226. On the complex closeting of homosexuals within African-American religious communities, see Harlon L. Dalton, AIDS in Blackface, DAEDALUS, Summer 1989, at 205, 215.
227. See Roberts v. United States Jaycees, 468 U.S. 609, 633-36 (1984) (O'Connor, J., concurring in judgment).
228. 115 S. Ct. 2338 (1995), rev'g Irish-American Gay, Lesbian & Bisexual Group v. City of Boston, 636 N.E.2d 1293 (Mass. 1994).
229. See id.
230. Id. at 2346.
231. Id. at 2347.
232. The Massachusetts statute defined a public accommodation as "any place . . . which is open to and accepts or solicits the patronage of the general public," including but not limited to "a boardwalk or other public highway" and "a place of public amusement, recreation, sport, exercise or entertainment." MASS. GEN. LAWS ANN. ch. 272, § 92A (West 1990). The trial court found that the parade was "'an open recreational event that is subject to the public accommodations law.'" Quoted in Hurley, 115 S. Ct. at 2342. That may be an overstatement. A theme parade would include elements of both recreation and expression, and the Massachusetts law should have been interpreted more narrowly in order to avoid the constitutional problems presented in Hurley.
233. See RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 521-65 (4th ed. 1996).
234. See Irish-American Gay, Lesbian & Bisexual Group, 636 N.E.2d at 1296 n.9.
235. Quoted in Hurley, 115 S. Ct. at 2342.
236. See New York County Bd. of Ancient Hibernians v. Dinkins, 814 F. Supp. 358, 361-62 (S.D.N.Y. 1993).
237. Irish-American Gay, Lesbian & Bisexual Group, 636 N.E.2d at 1295.
238. Id.
239. There was no factual basis for that belief, and the trial judge treated it as simply fabricated. See id. at 1295 n.8.
240. Id.
241. See Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984).
242. See Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1011-17 (1985) (Brennan, J., dissenting from denial of certiorari).
243. See Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 31-38 (D.C. 1987) (opinion of Mack, J.).
244. 116 S. Ct. 1620 (1996).
245. See 1995 US Trans Lexis 89, *25.
246. Id. at *42. Justice John Paul Stevens posed a few follow-up questions suggesting this parallel: If the Council excluded a Jewish group because its members wanted to wear yarmulkes, wouldn't the exclusion be due to the marchers' religious "identity" as well as their "message"? Id. at *42-43.
247. The nomic autonomy exception seems substantially inapplicable here. There remained a plausible but unclear case for state involvement in the Boston parade under either federal or (more likely) state constitutional law. Whether or not the city could be deemed a coparticipant, the Boston parade was indisputably a major civic event drawing in the entire community and including many contingents with no connection to the Irish or to Evacuation Day. Even less than the Georgetown case, the Boston parade case was not limited to a nomic community alone; it involved the whole community.
248. This has been a technique used in cases where shopping malls are required to provide access to unpopular groups, see Prune Yard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980), but Justice Souter's opinion rejected the technique because he believed it would dilute the parade's expressive message. If Souter's view were supported by the facts of the case, I would agree, but there was no theme beyond the bromides noted earlier.
249. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 630-31 (1992).
250. 487 U.S. 1 (1988).
251. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 S. Ct. 2338, 2351 (1995).
252. 913 P.2d 909 (Cal. 1996).
253. 494 U.S. 872 (1990).
254. Fair Employment & Hous. Comm'n, 913 P.2d at 931 (Mosk, J., concurring).
255. 374 U.S. 398 (1963).
256. See Fair Employment & Hous. Comm'n, 913 P.2d at 942-51 (Kennard, J., concurring in part and dissenting in part); id. at 966-69 (Baxter, J., concurring in part and dissenting in part); see also Attorney General v. Desilets, 636 N.E.2d 233, 246 (Mass. 1994) (O'Connor, J., dissenting) (arguing that state may not legally impose choice between violating religious beliefs and withdrawing from commercial endeavor on landlord refusing to rent to unmarried couple).
257. Sherbert, 374 U.S. at 404.
258. Construction of Sherbert is important not for the First Amendment inquiry, governed by Scalia's opinion in Employment Division, which limited Sherbert to the context of unemployment compensation, but for the RFRA inquiry, which codified Sherbert's approach statutorily.
259. Courts have applied RFRA to overturn state orders preventing a Roman Catholic school from discharging a non-Catholic teacher, see Forth v. Roman Catholic Diocese, 532 N.W.2d 195 (Mich. Ct. App. 1995), requiring the Amish to mark their slow-moving horse-drawn buggies with orange triangles rather than the silver tape they prefer, see State v. Miller, 538 N.W.2d 573 (Wis. Ct. App. 1995), and imprisoning Rastafarians for using marijuana, see United States v. Bauer, 75 F.3d 1366 (9th Cir. 1996).
260. See Fair Employment & Hous. Comm'n, 913 P.2d at 951-55 (Kennard, J., concurring in part and dissenting in part).
261. See City of Santa Barbara v. Adamson, 610 P.2d 436 (Cal. 1980).
262. See Fair Employment & Hous. Comm'n, 913 P.2d at 974-75 (Baxter, J., concurring in part and dissenting in part).
263. See ESKRIDGE, supra note 81, at 161-64.
264. SR201. The ordinance is excerpted at American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 324 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986). Its history is recounted and analyzed in DONALD ALEXANDER DOWNS, THE NEW POLITICS OF PORNOGRAPHY (1989). The conceptual framework which generated the ordinance is detailed in ANDREA DWORKIN, PORNOGRAPHY (1979); subsequent defense of the statute is provided by Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. 1 (1985).
265. The ordinance is excerpted at American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 324 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986). Its history is recounted and analyzed in DONALD ALEXANDER DOWNS, THE NEW POLITICS OF PORNOGRAPHY (1989). The conceptual framework which generated the ordinance is detailed in ANDREA DWORKIN, PORNOGRAPHY (1979); subsequent defense of the statute is provided by Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. 1 (1985).
266. The ordinance is excerpted at American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 324 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986). Its history is recounted and analyzed in DONALD ALEXANDER DOWNS, THE NEW POLITICS OF PORNOGRAPHY (1989). The conceptual framework which generated the ordinance is detailed in ANDREA DWORKIN, PORNOGRAPHY (1979); subsequent defense of the statute is provided by Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. 1 (1985).
267. 771 F.2d 325.
268. 475 U.S. 1001 (1986).
269. Hudnut, 771 F.2d at 328.
270. See ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 232-35 (1996); Mary Becker, Searching for Any Fixed Star: Regulation of Same-Sex Relationships but Protection for Pornography (1994) (unpublished manuscript, on file with author).
271. See ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 232-35 (1996); Mary Becker, Searching for Any Fixed Star: Regulation of Same-Sex Relationships but Protection for Pornography (1994) (unpublished manuscript, on file with author).
272. 89 D.L.R.4th 449 (Can. 1992).
273. See NADINE STROSSEN, DEFENDING PORNOGRAPHY: FREE SPEECH, SEX, AND THE FIGHT FOR WOMEN'S RIGHTS 229-44 (1995).
274. See generally id.
275. See id.; see also Lisa Duggan et al., False Promises: Feminist Anti-Pornography Legislation, 38 N.Y.L. SCH. L. REV. 133 (1993); Jeffrey G. Sherman, Love Speech: The Social Utility of Pornography, 47 STAN. L. REV. 661, 691-92 (1995).
276. See id.; see also Lisa Duggan et al., False Promises: Feminist Anti-Pornography Legislation, 38 N.Y.L. SCH. L. REV. 133 (1993); Jeffrey G. Sherman, Love Speech: The Social Utility of Pornography, 47 STAN. L. REV. 661, 691-92 (1995).
277. Systematic state persecution of a lesbian bookstore under Butler is detailed in JANINE FULLER & STUART BLACKLEY, RESTRICTED ENTRY: CENSORSHIP ON TRIAL (1995), but the Canadian courts, as of 1996, have enjoined this persecution. See Little Sisters Book & Art Emporium v. Minister of Justice & Attorney General, No. A901450 (Sup. Ct. B.C. Jan. 19, 1996).
278. Cf. David Cole, Playing by Pornography's Rules: The Regulation of Sexual Expression, 143 U. PA. L. REV. 111 (1994) (arguing that sexual expression subverts attempts at regulation).
279. CATHARINE MACKINNON, ONLY WORDS 16 (1993); see also FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY (1982); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993).
280. CATHARINE MACKINNON, ONLY WORDS 16 (1993); see also FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY (1982); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993).
281. CATHARINE MACKINNON, ONLY WORDS 16 (1993); see also FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY (1982); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993).
282. See One, Inc. v. Olesen, 241 F.2d 772 (9th Cir. 1957), rev'd per curiam, 355 U.S. 371 (1958) (allowing Post Office to censor Sappho Remembered, but overturned by Supreme Court); People v. Friede, 233 N.Y.S. 565 (N.Y. Magis. Ct. 1929) (allowing police to censor Well). Friede was overturned in an unreported decision by a three-judge panel in Special Sessions. See Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 VA. L. REV. 1551, 1557 n.37 (1993).
283. For a complex understanding of the place of Well in the formation of lesbian consciousness, see Esther Newton, The Mythic Mannish Lesbian: Radclyffe Hall and the New Woman, 9 SIGNS 557 (1984).
284. This point was first developed in SCOTT TUCKER, RADICAL FEMINISM AND GAY MALE PORN (1983), and later in Sherman, supra note 209, at 681-89. But see JOHN STOLTENBERG, REFUSING TO BE A MAN; ESSAYS ON SEX AND JUSTICE (1989) (agreeing with MacKinnon that gay pornography is harmful).
285. This point was first developed in SCOTT TUCKER, RADICAL FEMINISM AND GAY MALE PORN (1983), and later in Sherman, supra note 209, at 681-89. But see JOHN STOLTENBERG, REFUSING TO BE A MAN; ESSAYS ON SEX AND JUSTICE (1989) (agreeing with MacKinnon that gay pornography is harmful).
286. See Sherman, supra note 209, at 681-89.
287. See Packer Corp. v. Utah, 285 U.S. 105 (1932) (upholding statute prohibiting billboard advertising of cigarettes).
288. See Schenck v. United States, 249 U.S. 47, 52 (1919) (stating in dictum that First Amendment does "not . . . protect a man in falsely shouting fire in a theatre").
289. See Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980) (holding that commercial speech that is "misleading" enjoys no First Amendment protection); see also Virginia State Bd. of Pharmacy v. Virginia Citizens Common Cause, 425 U.S. 748, 771-72 (Stevens, J., concurring) ("The First Amendment as we construe it today does not prohibit the state from insuring that the stream of commercial information flow clearly as well as freely.").
290. See Beauharnais v. Illinois, 343 U.S. 250 (1952). Some feel that the decision does not survive New York Times Co v. Sullivan, 376 U.S. 254 1964), but others find robust First Amendment wisdom in the group libel idea, see. e.g., Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320 (1989). At the very least, the requirement that defendant show both truth and lack of malice has been overruled by Sullivan.
291. See, e.g., ATTORNEY GENERAL'S COMM'N ON PORNOGRAPHY, FINAL REPORT 299-352 (1986); Frederick Schauer, Causation Theory and the Causes of Sexual Violence, 1987 AM. B. FOUND. RES. J. 737. For a response to the Attorney General's Report, see GORDON HAWKINS & FRANKLIN ZIMRING, PORNOGRAPHY IN A FREE SOCIETY (1988).
292. See, e.g., ATTORNEY GENERAL'S COMM'N ON PORNOGRAPHY, FINAL REPORT 299-352 (1986); Frederick Schauer, Causation Theory and the Causes of Sexual Violence, 1987 AM. B. FOUND. RES. J. 737. For a response to the Attorney General's Report, see GORDON HAWKINS & FRANKLIN ZIMRING, PORNOGRAPHY IN A FREE SOCIETY (1988).
293. See, e.g., ATTORNEY GENERAL'S COMM'N ON PORNOGRAPHY, FINAL REPORT 299-352 (1986); Frederick Schauer, Causation Theory and the Causes of Sexual Violence, 1987 AM. B. FOUND. RES. J. 737. For a response to the Attorney General's Report, see GORDON HAWKINS & FRANKLIN ZIMRING, PORNOGRAPHY IN A FREE SOCIETY (1988).
294. EDWARD DONNERSTEIN ET AL., THE QUESTION OF PORNOGRAPHY: RESEARCH FINDINGS AND POLICY IMPLICATIONS 2 (1987).
295. Id. at 98. By sexual violence, Donnerstein et al. mean depictions of "sexual coercion in a sexually explicit way," especially when the woman initially resists and then gives way to enjoyment. See id. at 89.
296. This is the criticism of Duggan et al., supra note 209, at 154.
297. See VITO Russo, THE CELLULOID CLOSET (1987), and the movie by the same name (Sony Pictures 1996).
298. THE CHILDREN'S HOUR (United Artists 1961).
299. ADVISE AND CONSENT (Columbia 1962).
300. VICTIM (Alfred Filmakers Parkway 1961).
301. Homosexual characters often killed either the objects of their desires (Marion Brando in REFLECTIONS OF A GOLDEN EYE (Warner Bros. & Seven Artists 1967), Carol Kane in MY SISTER, MY LOVE (Jerry Gross Organization 1977)), innocent third parties (Rod Steiger in No WAY TO TREAT A LADY (Paramount 1968), Tom Berenger in LOOKING FOR MR. GOODBAR (Paramount 1977), Christopher Reeve and Michael Caine in DEATHTRAP (Warner Bros. 1982)), or themselves (Shirley MacLaine in THE CHILDREN'S HOUR (United Artists 1961), Rod Steiger in THE SERGEANT (Warner Bros. & Seven Artists 1968)).
302. GOLDFINGER (United Artists 1964).
303. In 1973, the Gay Activists Alliance and the National Gay Task Force developed "Some General Principles for Motion Picture and Television Treatment of Homosexuality." See Russo, supra note 225, at 220-21. The overriding theme of the various principles was that movies should not reinforce popular myths and stereotypes about homosexuality and should, instead, present
304. THE BOYS IN THE BAND (Cinema Center/Leo 1970). Although the male characters were a menagerie of popular stereotypes (the sissy, the dumb hustler, the acid wit concealing guilt, the tolerant but shocked heterosexual), the movie also included a well-adjusted gay couple who displayed obvious physical affection and dramatically reaffirmed their love at the end. The film gave even the stereotyped characters human depth and sympathy. Just as Well of Loneliness was both depressing and liberating for some lesbians, so was Crowley's Boys in the Band for some gay men Indeed, the film could be viewed as a searing indictment of the closet culture, for the unhappiness the film documents is, in part, a product of the outlaw status of gay relationships.
305. These include John Schlesinger's SUNDAY BLOODY SUNDAY (United Artists 1971), an amazing film and my favorite; Luchino Visconti's DEATH IN VENICE (Alfa Cinématographica & Productions et Editions Cinématographiques Françaises 1971); Bob Fosse's CABARET (Lorimar 1972), a highly ambivalent adaptation of Christopher Isherwood's BERLIN STORIES (1945); Christopher Larkin's A VERY NATURAL THING (Montage Creations, Inc. 1974); Sidney Lumet's sensationalist DOG DAY AFTERNOON (Warner Bros. 1975); George Schlatter's amusing NORMAN, IS THAT YOU? (MGM 1976); Wolfgang Petersen's THE CONSEQUENCE (Solaris Film Prods. & Westdeutscher 1977); Nancy and Peter Adair's gay-affirming WORD IS OUT (Mariposa Film Group 1977), which was electrifying for many of the lesbians and gay men who saw it; Richard Benner's OUTRAGEOUS (Film Consortium of Canada 1977), a terrific forum for female impersonator Craig Russell, as well as the same director's sensitive HAPPY BIRTHDAY GEMINI (United Artists 1979); and Richard Lester's THE RITZ (Warner Bros. 1978), a lackluster adaptation of the wittier Terence McNally play.
306. PHILADELPHIA (Tristar 1993).
307. See DONNERSTEIN ET AL., supra note 222, at 180-85; MARCIA PALLY, SENSE AND CENSORSHIP: THE VANITY OF BONFIRES 34-36 (1991); Neil Malamuth & Edward I. Donnerstein, The Effects of Aggressive-Pornographic Mass Media Stimuli, 15 ADVANCES EXP. PSYCHOL. 103, 129 (1982).
308. See DONNERSTEIN ET AL., supra note 222, at 180-85; MARCIA PALLY, SENSE AND CENSORSHIP: THE VANITY OF BONFIRES 34-36 (1991); Neil Malamuth & Edward I. Donnerstein, The Effects of Aggressive-Pornographic Mass Media Stimuli, 15 ADVANCES EXP. PSYCHOL. 103, 129 (1982).
309. This has been documented in an excellent paper by my former student, Perry Chen. See Perry Chen, Jungle Negroes, Madame Butterflies, Hot Tamales: Talking About Race in the Dialogue of Love Speech (Harvard Law School 1994) (unpublished manuscript, on file with author). To my chagrin, this paper has found the path to publication blocked on several fronts.
310. See POSNER, supra note 29, at 318 (1992) (offering pragmatic arguments for excluding gays from armed services and institution of marriage).
311. For example, even Bob Jones University in the 1970s accepted racial integration; its discrimination was confined to prohibitions of interracial dating and marriage. The University's policy would not have brought such censure from even the liberal Warren Court immediately after Brown. The Court in the 1950s refused to attack even state laws criminalizing interracial cohabitation or marriage. See Naim v. Naim, 350 U.S. 985 (1956). A decision like Bob Jones, penalizing a religious school for its interracial dating policy, would have been inconceivable in the 1950s. It became possible only after the country and its religions had gone through thirty years of equality practice.
312. Notwithstanding the views of many religions that benign sexual variation is unacceptable for their nomic communities, the public community ought to adopt this stance. Indeed, to reject the idea, and treat gay communities less respectfully than religious ones for religious-inspired reasons, would be partial to religion in ways that the Establishment Clause discourages Cf. Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510, 2521 (1995) (finding that "neutrality" required by Establishment Clause does not tolerate partiality toward or exclusion of religious viewpoints but is satisfied "when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse").