OutRight

by Dale Carpenter

The first of a two-part series focuses on the legal domain

The gay movement struggles on two planes. One of them is the domain of law, dominated by legislators, lobbyists, lawyers, and courts. The second is the domain of social relations, dominated by family members, friends, and private organizations.

Is there a model that guides us in each of these domains? It turns out there are choices among models to be pursued in each, and those choices very much define what it is we are trying to achieve. This column presents the possible models for progress in the legal domain. The next column will look at the possible models in the social domain.

There have been four prominent legal models for gay progress. They overlap to some extent, and it is possible to embrace more than one, but they have different notions about the role of gay citizens in civic life and entail very different conceptions of the proper role of government. Let's consider each briefly.

Privacy.

This was one of the earliest, and long the dominant, model for gay progress in the law. Early gay advocates, faced with overwhelming hostility to homosexuality from law enforcement, clergy, politicians, the psychiatric profession, and ordinary Americans, used this argument to appeal to people who otherwise would never accept a gay rights claim.

Its thrust is simple: Get rid of sodomy laws. In the words of Northwestern University law professor Andrew Koppelman in his recent book The Gay Rights Question in Contemporary American Law, "the criminalization of homosexual activity has been the most important legal disadvantage that gays have faced and the keystone of a pattern of other disadvantages."

More broadly, the privacy model seeks to create a protected space within which the citizen can make fundamental decisions affecting his or her own life. Within his own private sphere, the citizen is king. The government must not intrude and must protect him from intrusion by other citizens.

The advantage of this approach has been that even people who disapprove of homosexuality can agree that homosexuals should have some right to privacy. And so the model has been remarkably successful, helping to eliminate by judicial or legislative action the sodomy laws of most states over the past four decades.

The disadvantage of the privacy model is that it is so limited. Most gay people do not want the freedom simply to withdraw into their own homes to have sex, important as that right is. They want to lead their lives openly and honestly. They do not want the right to be private, but the right to be public. For that, we need a more robust legal model.

Substantive equality.

This model is now the dominant one for gay progress in American law. It argues that, whatever straight people are free to do, gay people should be free to do. In the gay-rights movement, its most prominent organizational proponent is the Human Rights Campaign.

This model seeks to set the conditions for the equal participation of gay people in civic life. Thus, it opposes state-sponsored antigay discrimination in the form of sodomy laws, the ban on military service by openly gay people, and bans on gay marriage, among other things. However, the substantive-equality model also sees much private discrimination (by employers and landlords, for example) as a threat to gays' equal participation in ordinary civic life. So it supports civil rights laws designed to protect gays from much of this discrimination.

The advantage of this model is its breadth and its resemblance to the models adopted for other groups long subject to discrimination, like blacks and women. A disadvantage is, again, its breadth: This model aggressively combats, by government mandate, deep-seated private prejudices. That gives government significant, perhaps dangerous, power over private citizens.

Formal equality.

This model (which its adherents might prefer to call a "freedom" model) has been championed by some libertarian-leaning gay advocates, including Andrew Sullivan, David Boaz, and Paul Varnell. It argues for the elimination of sexual orientation as a category in American law. The state, in this conception, must pay no mind to a person's sexual orientation just as it should pay no mind to a person's race or religion.

The formal-equality model, like the substantive-equality model, opposes state-sponsored antigay discrimination of every kind. However, unlike the substantive-equality model, it also opposes measures to protect gay people from discrimination in employment, housing, and public accommodations.

The advantage of this approach is its simplicity. It probably can be more easily accepted by our opponents than a substantive-equality model can be since it requires less of them.

A disadvantage is its blindness to the real-life sources of threats to human freedom. These include not just government power but private power aided by government. Employment, for example, is not a pre-political thing existing apart from law and never has been. Now we are to pretend otherwise?

This model is chiefly useful as a critique of the excesses of the substantive-equality model.

Liberation.

This model seeks a revolution in society and its mores. It doesn't want mere equality with straight people; it wants liberation from their values and practices. It wants all kinds of radical changes in laws related to sex, family, marriage, and so on. Among national gay groups, the National Gay & Lesbian Task Force comes closest to embracing this model.

The advantage of the liberation model is that it gives adherents that good old 1960s groovy feeling. The disadvantage is that it is completely unrealistic and destructive.

There you have it. Where do you stand?

Writing from the conservative end of the political spectrum, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a law professor. He can be reached at OutRight@aol.com.