Saturday, April 30, 2005

Gay Rights Movement Increasingly Conceptualized as Struggle for Equality

In Lawrence v. Texas, the Supreme Court held anti-sodomy laws unconstitutional. It rested its conclusion (at least formally) on privacy rights. In pedestrian terms, the Court held that the government has no business in your bedroom. This view of Gay Rights sees the struggle as being about the liberty of people to have sex with whoever they want, however they want.

It seems to me that this view of Gay Rights is both easier for the Right to oppose and less persuasive on the merits than the alternative vision of Gay Rights. A second vision of Gay rights sees the struggle - not as an heir to the privacy rights of Griswold and Roe - but as an heir to the equality rights of Brown and the Civil Rights Act of 1964.

Anecdotal evidence suggests to me:

(1) that the Gay Rights struggle is increasingly being conceptualized in terms of equality,
(2) that the articulation of the equality argument is becoming increasingly powerful, and
(3) that the Right will soon find itself facing stunning defeats on the issue because of 1 and 2.

Two recent events prompt these observations.

First, as many are no doubt aware, Connecticut passed a Civil Unions law last week. It became the first state to do so without any judicial prompting. Most interesting to me, was Republican Governor Jodi Rell's justification for signing the law. At the signing ceremony, Rell explained, "I have said all along that I believe in no discrimination of any kind and I think that this bill accomplishes that...."

Rell might have said that people should have the liberty to partner with whoever they want. Instead, however, she indicated that the bill was necessary to avoid "discrimination" -- to "accomplish" equality. In emphasing her opposition to discrimination "of any kind," Rell implicitly linked the Gay Rights struggle to the struggles for racial and gender equality. Admittedly, this was not a complete victory, and Rell also applauded, paradoxically, that the law "preserv[ed] the traditional language" of marriage. Nevertheless, to hear the language of equality coming from a Republican - even a moderate Republican - was indeed extraordinary.

I believe that Rell's statement demonstrates that homosexuals' claims to be heirs of the Civil Rights movement are becoming increasingly difficult to deny. This fact really "hit" me this week when I received the passionate public statement of Eric Berndt.

Mr. Berndt, an NYU law student, gained the applause of some and the condemnation of many two weeks ago when he asked conservative Justice Antonin Scalia an inflammatory question after a speech he gave at the law school. During a discussion about Scalia's dissent in Lawrence v. Texas, Berndt asked the Justice, "Do you sodomize your wife?" Scalia, whose wife was in attendance, responded that "the question was unworthy of an answer."

Recently, Mr. Berndt wrote the following in response to his critics:

As the student who asked Justice Scalia about his sexual conduct, I am [writing] to explain why I believe I had a right to confront Justice Scalia in the manner I did Tuesday, why any gay or sympathetic person has that same right. It should be clear that I intended to be offensive, obnoxious, and inflammatory. There is a time to discuss and there are times when acts and opposition are necessary. Debate is useless when one participant denies the full dignity of the other. How am I to docilely engage a man who sarcastically rants about the "beauty of homosexual relationships" (at the Q&A) and believes that gay school teachers will try to convert children to a homosexual lifestyle (at oral argument for Lawrence)?

Although my question was legally relevant, as I explain below, an independent motivation for my speech-act was to simply subject a homophobic government official to the same indignity to which he would subject millions of gay Americans. It was partially a naked act of resistance and a refusal to be silenced. I wanted to make him and everyone in the room aware of the dehumanizing effect of trivializing such an important relationship. Justice Scalia has no pity for the millions of gay Americans on whom sodomy laws and official homophobia have such an effect, so it is difficult to sympathize with his brief moment of "humiliation," as some have called it. The fact that I am a law student and Scalia is a Supreme Court Justice does not require me to circumscribe my justified opposition and outrage within the bounds of jurisprudential discourse.

Law school and the law profession do not negate my identity as a member of an oppressed minority confronting injustice. Even so, I did have a legal point: Justice Kennedy's majority opinion in Lawrence asked whether criminalizing homosexual conduct advanced a state interest "which could justify the intrusion into the personal and private life of the individual." Scalia did not answer this question in his dissent because he believed the state need only assert a legitimate interest to defeat non-fundamental liberties. I basically asked him this question again - it is now the law of the land. He said he did not know whether the interest was significant enough. I then asked him if he sodomizes his wife to subject his intimate relations to the scrutiny he cavalierly would allow others - by force, if necessary. Everyone knew at that moment how significant the interest is. Beyond exerting official power against homosexuals, Scalia is an outspoken and high-profile homophobe. After the aforementioned sarcastic remarks about gay people's relationships, can anyone doubt how little respect he has for LGBT Americans? Even if no case touching gay rights ever came before him, his comments from the bench (that employment non-discrimination is some kind of "homosexual agenda," etc.) and within our very walls are unacceptable to any self-respecting gay person or principled opponent of discrimination. The idea that I should have treated a man with such repugnant views with deference because he is a high government official evinces either a dangerously un-American acceptance of authority or insensitivity to the gay community's grievances. Friends have forwarded me emails complaining of the "liberal" student who asked "the question." That some of my classmates are shallow and insensitive enough to conceptualize my complaint as mere partisan politics is disheartening. Though I should not have to, I will share with everyone that I am neither a Democrat nor Republican and do not consider myself a "liberal" except in the classical sense. I hope that we can separate a simple demand for equality under the law and outrage over being denied it from so much dogmatic ideological baggage. LGBT Americans are still a persecuted minority and our struggle for equal rights is still vital. 4 out of 5 LGBT kids are harassed in school - tell them to debate their harassers. Suicide rates for them are much higher than for others. We still cannot serve in the military, have little protection from employment and other forms of discrimination, and are denied the 1000+ benefits that accrue from official recognition of marriage. I know some who support gay rights oppose my question and our protest. Do not presume to tell me when and with how much urgency to stand up for our rights.

I am 17 months out of a lifelong closet and have lost too much time to heterosexist hegemony to tolerate those who say, as Dr. King put it, "just wait." If you cannot stomach a breach of decorum when justified outrage erupts then your support is nearly worthless anyway. At least do not allow yourselves to become complicit in discrimination by demanding obedience from its victims. Many of our classmates chose NYU over higher-ranked schools because of our reputation as a "private university in the public service" and our commitment to certain values. We were the first law school to require that employers pledge not to discriminate on the basis of sexual orientation. Of Scalia's law schools that have "signed on to the homosexual agenda," our signature stands out like John Hancock's. We won a federal injunction in the FAIR litigation as an "expressive association" that counts acceptance of sexual orientation as a core value. Those who worry about our school's prestige should remember how we got here and consider whether flattering those who mock what we believe and are otherwise willing to fight for appears prestigious or pathetic. We protestors did not embarrass NYU, Scalia embarrassed NYU. We stood up to a bigot for the values that make NYU more than a great place to learn the law. I repeat my willingess to discuss this issue calmly with anyone who respects my identity as a gay man. I have had many productive talks with classmates since [the incident,] and I hope that will continue.

Eric Berndt


(No, I haven't forgotten that I've a promised a discussion of the Supreme Court's Commercial Speech doctrine, there are just too many other important things that keep coming up!)


At 2:43 PM, Blogger Infission said...

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At 2:46 PM, Blogger Infission said...

See related discussion at:


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