Koppelman GayLegalHistory 2000 2

Review: Why Gay Legal History Matters
Reviewed Work(s): Gaylaw: Challenging the Apartheid of the Closet by William N.

Eskridge,
Review by: Andrew Koppelman
Source: Harvard Law Review , Jun., 2000, Vol. 113, No. 8 (Jun., 2000), pp. 2035-2060
Published by: The Harvard Law Review Association
Stable URL: https://www.jstor.org/stable/1342318
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WHY GAY LEGAL HISTORY MATTERS
GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET. By

William N. Eskridge, Jr. Cambridge and London: Harvard University
Press. I999. Pp. ix, 470. $45.00.
Reviewed by Andrew Koppelman*
The gay rights question presses ever harder upon American culture,
religion, politics, and law. Just as controversies over sodomy laws,
child custody and adoption, and protection against discrimination be-
gin to abate, with state (if not federal) law slowly moving toward
equality for gays in many parts of the country, the national mind is
troubled anew by questions of gays in the military and same-sex mar-
riage. The current salience of these issues is particularly apparent in
the academy. In the law reviews, new articles on gay rights proliferate
like dandelions on a spring lawn.'
Until now, no single volume has provided the general reader with a
concise summary of what we now know. William Eskridge's Gaylaw:
Challenging the Apartheid of the Closet fills this gap admirably. It is
tightly argued and a pleasure to read. Eskridge's book is the best
overview of this burgeoning field, combining a thorough review of re-
cent scholarship with substantial new research.
* Associate Professor of Law and Political Science, Northwestern University. Thanks to

Henry Cohen, Michael Dorf, Richard Duncan, William Eskridge, Jr., Howard Lee, Richard Pos-
ner, Valerie Quinn, Jed Rubenfeld, and Marc Spindelman for helpful comments, and to Marcia
Lehr for research assistance. This Review is dedicated to the memory of David Lee, able attorney,
law professor, and administrative judge, who would have been pleased to see his little cousin's
work in these pages.
1 A February 2000 search of articles listed under "sexual orientation discrimination" in the In-
dex of Legal Periodicals found 96 articles written on the subject from i989 to I994. From I995 to
the date of the search, there were 540 articles. The trend in publication of books is similar but less
pronounced. A February 2000 search of the WORLDCAT database found i69 books on "gay
rights" from i989 to I994 and 256 from I995 to date, and 32 books on "sexual orientation discrimi-
nation" from i989 to I994 and 40 from I995 to date. Notable among the books are two large trea-
tises, LESBIAN, GAY, BISEXUAL RIGHTS COMM., NATIONAL LAWYERS GUILD, SEXUAL ORIENTA-
TION AND THE LAW (Roberta Achtenberg & Karen B. Moulding eds., I985 & Supp. XII 1999), and
I-2 ALBA CONTE, SEXUAL ORIENTATION AND LEGAL RIGHTS (i998). There have also been two
law school casebooks, WILLIAM N. ESKRIDGE, JR. & NAN D. HUNTER, SEXUALITY, GENDER,
AND THE LAW (I997), and WILLIAM B. RUBENSTEIN, CASES AND MATERIALS ON SEXUAL ORIEN-
TATION AND THE LAW (2d ed. I997). Another useful reference work is ARTHUR S. LEONARD,
SEXUALITY AND THE LAw: AN ENCYCLOPEDIA OF MAJOR LEGAL CASES (I993). New develop-
ments in the area are reported monthly in Lesbian/Gay Law Notes. In contrast, as recently as the
mid-I970s, there was virtually no legal literature on the status of gay people. See Rhonda R. Riv-
era, Our Straight-Laced Judges: 7Yenty Years Later, 50 HASTINGS L.J. II79, Ii8o-8i (i999).
2035

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2036 HARVARD LAWREVIEW [Vol. II3:2035
Gaylaw is not merely descriptive. It is also a polemic against what

Eskridge calls the "apartheid of the closet," the law's persistent ten-
dency to demand "segregating and hiding one's gender or sexual non-
conformity as a condition of citizenship, freedom, and employment" (p.
7). Although law no longer strives to hound gays to the margins of so-
ciety, as it did in the I950s, gays still endure many legal disabilities.
Nineteen states criminalize sodomy between consenting adults, and six
of them target same-sex sodomy (p. I40). Several have created express
presumptions against custody for gay parents, and three officially pro-
hibit gays from adopting (p. 140). The armed forces officially exclude
gays, and some states formally or informally exclude them from em-
ployment as teachers, police officers, or even firefighters (p. I40). Sev-
eral states require schools to teach that same-sex intimacy is unaccept-
able (p. I40). Antidiscrimination laws that prohibit gender stereo-
typing and sexual harassment have been interpreted to give no protec-
tion to gays (p. I40). And, of course, gays are everywhere forbidden to
marry each other (pp. I39-40).
Eskridge aims to show that this state of affairs is unjust and ought
to be changed. More than that, he wants to show that it violates the
U.S. Constitution. Unfortunately, most of his constitutional arguments
are inconclusive. Even the compelling arguments are hamstrung by
the limitations of the courts that must implement them. These are,
however, venial faults. The history Eskridge recounts is so powerful
that the book, taken as a whole, is one of the strongest briefs on behalf
of gay equality that we now have.
I. THE UNPLEASANT PAST
The best part of the book is the first section, in which Eskridge de-
scribes the history of legal regulation of gay people in the twentieth
century. Scholars have plowed this ground heavily in recent decades,
and Gaylaw is a valuable harvesting of their work for the general
reader. But Eskridge has also done substantial new research, probing
deeply into unpublished police and judicial records all over the United
States,2 and he provides the most comprehensive account of this his-
tory ever written. Anyone who wants to understand the legal status of
gay people in America must now begin by reading Gaylaw.
A. The Origins of Repression, i880-I946
Eskridge's narrative begins in i88o. At that time, homosexuality

was taboo, but the taboo focused on acts of anal sex, which were
deemed grossly immoral, without considering who might be tempted to
2 His compilation of municipal and state regulations and statistics on arrests and convictions,
collated by date and substance, covers 57 pages of appendices (pp. 328-84).

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2000] BOOK REVIEWS 2037
engage in them. Sodomy laws were on the books nearly everywhere,

but the authorities rarely applied them to acts of same-sex intimacy be-
tween consenting adults (p. I9).3
In the late nineteenth century, a new "purity movement" arose in
America. Its primary target was prostitution, but it was also con-
cerned with gender nonconformity in general. "The purity movement
reflected heightened middle-class desire to reinforce traditional female
gender roles in the face of a generation of 'new women,' educated and
economically independent of men" (p. 20). It was during this period
that the idea of "the homosexual" emerged for the first time. This new
creature - for same-sex sexual conduct has always been with us, but
it had never before been thought about in this way - was not simply
someone who had acted wrongly. Rather, the homosexual was a dis-
tinctive kind of person, distinguished primarily by "gender inversion,"
the transgression of increasingly hardened gender lines (p. 22).
Alarm about "degeneracy" produced a new wave of legislation.
Cities all over America adopted laws against cross-dressing. A variety
of new ordinances prohibited public lewdness, sexual solicitation, inde-
cent assignation, disorderly conduct, and lewd vagrancy (p. I3). Sod-
omy laws, which had traditionally prohibited only anal sex, were ex-
panded to include oral sex. "By the beginning of the twentieth
century, gender inappropriateness ... was increasingly considered a
sickness and a public offense" (p. 28). National policy also began to
target sexual nonconformity. Beginning around I92I, "degenerate"
materials were excluded from the U.S. mails (p. 34), and "sexual in-
verts" were prohibited from entering the country (p. 35) or serving in
the armed forces (p. 37).
The number of arrests for same-sex intimacy shot up, especially in
urban centers. Many of these arrests were the result of new police
surveillance techniques. Undercover officers began to stake out or
pose as decoys in public restrooms and parks (p. 30). In one celebrated
case in Newport, Rhode Island, U.S. Navy sailors were recruited into
an undercover operation in which they were ordered to, and did, re-
ceive oral sex from their "targets" (pp. 3I, 38).
After World War I, the law's concern with same-sex intimacy
shifted from gender inversion to sexual deviation. The homosexual
was now seen as a creature with an insatiable sexual appetite that
posed a threat to, above all, children. The late I930S witnessed a na-
tional panic about child molestation, and the number of arrests for
sexual activity with children rose substantially. The law conflated
3 "Pre-i88i prosecutions overwhelmingly focused on male-female, adult-child, or man-ani

relations rather than adult same-sex intimacy" (p. i9).

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2038 HARVARD LAWRE VIEW [Vol. II3:2035
child molesters and gays into a single cat

Once again, the arrest rate for homosexuals rose (p. 41).
The increasingly active policing of sexual deviance gave rise to a
new problem: what should be done with sex offenders after they were
caught? New statutes allowed them to be incarcerated for indefinite
terms. Some were subjected to an array of "treatments," including cas-
tration, electrical shock, aversion therapy, injection of huge doses of
male hormones, and prefrontal lobotomy. Two thousand lobotomies
were performed on sex offenders between I938 and I946 (p. 42).
World War II was the beginning both of contemporary gay culture
and of a new apparatus of repression. Wartime conditions made same-
sex intimacy commonplace. At the same time, as medics and investi-
gators quizzed recruits about their sexuality (p. 50), the military's ex-
clusion of gays from service introduced the discourse of deviation to
millions who had never before encountered it.
B. The Fever Peaks, I946-i96i
After the war, the return to normalcy was accompanied by an in-

tense intolerance of nonconformity. Gay people were subjected to an
unprecedented level of surveillance and punishment. "The state be-
tween I946 and i96i imposed criminal punishments on as many as a
million lesbians and gay men engaged in consensual adult intercourse,
dancing, kissing, or holding hands" (p. 6o). During this period, bizarre
claims about the homosexual threat became a normal part of official
discourse.4
A few states had previously adopted laws providing indeterminate
sentences and psychiatric treatment for sex offenders, but after World
War II, such statutes swept the country. In many states, the mere
4 FBI Director J. Edgar Hoover announced in I947 that the "most rapidly increasing type of
crime is that perpetrated by degenerate sex offenders" and complained that "depraved human be-
ings, more savage than beasts, are permitted to rove America almost at will" (p. 6o (quoting J. Ed-
gar Hoover, How Safe Is Your Daughter?, AM. MAG., July 1947, at 13) (internal quotation marks
omitted)). The Navy's revised indoctrination lectures for women declared that "deterioration and
destruction of character and integrity are the end results of homosexuality. Even such gross crimes
as robbery, suicide, and murder often grow out of homosexuality" (p. 7I (quoting Chaplain's Pre-
sentation (WAVE Recruits), I953, at 3) (internal quotation marks omitted)). A Senate subcommit-
tee declared in i950 that 'homosexuals and other sex perverts" should be expelled from govern-
ment service because "those who engage in overt acts of perversion lack the emotional stability of
normal persons" and "indulgence in acts of sex perversion weakens the moral fiber of an individual
to a degree that he is not suitable for a position of responsibility" (pp. 68-69 (quoting
SUBCOMMITTEE ON INVESTIGATIONS OF THE SENATE COMM. ON EXPENDITURES IN THE EXEC-
UTIVE DEP'TS, EMPLOYMENT OF HOMOSEXUALS AND OTHER SEX PERVERTS IN GOVERNMENT
3-4 (I950)) (internal quotation marks omitted)). "One homosexual can pollute an entire [govern-
ment] office," the subcommittee warned, because "perverts will frequently attempt to entice normal
individuals to engage in perverted practices" (p. 69 (quoting SUBCOMMITTEE ON INVESTIGATIONS,
supra, at 3-4) (internal quotation marks omitted)).

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charge of sodomy or another sex crime, or a petition to the court, could

trigger the statutory procedures for involuntary commitment (pp. 6i,
354-55). In one jurisdiction, the first "sexual psychopath" cases in-
volved allegations of public masturbation, the following of a white
woman by a person of color, and the passing of bad checks by a sus-
pected homosexual (p. 6i).
Police surveillance techniques became far more aggressive than
they had been before the war. Police perched above public toilets for
hours, peeked into parked cars, and followed suspects home and
peered into their bedrooms (p. 64). Raids on bars, private clubs, and
even parties and dinners led to wholesale arrests (pp. 64, 76). "As
there was a huge amount of consensual sodomy going on and homo-
sexual men were ridiculously easy to catch, the state could determine,
ex ante, how much sex crime it would have" (p. 65). Many jurisdic-
tions elected to have quite a lot of sex crime. Enforcement was typi-
cally brutal, and those gays whose activity was tolerated sometimes
had to pay substantial bribes for the privilege (p. 64). And, of course,
the law empowered private individuals to rob and beat gays, who
were in no position to complain to police.5
The repression of gays in the I950s was more far-reaching in its
impact than were the anti-Communist witch-hunts of the same pe-
riod.6 "In I95I the State Department fired Ii9 employees for homo-
sexuality, and only 35 as other security risks (Communists); the figures
were I34 and 70, respectively, in I952" (p. 69). In 953, President
Eisenhower issued an executive order that officially added "sexual
perversion" to the federal loyalty-security program's list of grounds for
investigation and dismissal.' During the next two years, more than
8oo federal employees lost their jobs because of mere charges of loi-
tering, solicitation, or disorderly conduct (p. 70) - the charges that
police typically brought against gays (pp. 27, 66). A subsequent order
extended coverage to private employers who held federal contracts,
barring gays from more than two million nongovernment jobs.8 The
military collected the names of more than I2,000 "known or alleged
homosexuals," and police vice squads had their own lists. The FBI,
5 This policy had side effects that were surely unintended. 'In a literal way, the law was c
ating sexual variety, in this case of a sadomasochistic nature: by teaching thugs that they could
have their way with fairies without accountability, the law encouraged their sadism; by teaching
fairies that they were subhuman, the law inculcated in some of them a victim mentality of maso-
chism" (p. 54).
6 The Republican national chairman alleged that 'sexual perverts" had "infiltrated the gov-
ernment" and that they were as "dangerous as the actual Communists" (p. 68).
7 See Exec. Order No. I0,450, ? 8(a)(IXiii), 3 C.F.R. 936, 938 (I949-I953) (promulgated Apr. 27,
I953), reprinted as amended in 5 U.S.C. ? 73Ii app. at io66, io67 (I994).
8 See Exec. Order No. io,865, 3 C.F.R. 398 (I959-i963) (promulgated Feb. 20, i960), reprinted
as amended in 50 U.S.C. ? 435 app. at II9 (I994).

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2040 HARVARD LAWREVIEW [Vol. I 3:2035
which acted as a clearinghouse, shared police and military records

with private employers (pp. 70, 74-75). As a result, those who lost
federal jobs often found themselves blacklisted in the private sector as
well (p. 70).
Similar witch-hunts took place at the state level. As already noted,
police invested substantial resources in vice squads whose business
consisted largely in hunting down and entrapping gays. Authorities
often publicized the names of those who had been arrested (p. 76).
Teachers, doctors, dentists, pharmacists, embalmers, and other profes-
sionals lost their licenses (p. 72). Lawyers were disbarred for homo-
sexual activity (pp. 73-74). After an investigation at the University of
Florida, sixteen students withdrew or were suspended from the school,
and twenty-five others were placed on probation (p. 73).
Anyone who wants to understand modern American history should
consider the tale that Eskridge has told. The anxieties of the postwar
period have been lately undergoing critical reassessment, as recently
declassified intelligence documents and new evidence from Soviet ar-
chives have confirmed that the fears of Communist espionage had
some basis in reality. There was indeed an elaborate network of
Communist spies. Alger Hiss and Julius Rosenberg were almost cer-
tainly guilty of espionage. Some scholars have suggested that this evi-
dence shows that the country was not in the grip of a paranoid delu-
sion during the McCarthy period after all9 (even though most scholars
agree that many innocent people were needlessly harmed).10 Esk-
ridge's findings qualify that conclusion in important ways.
Even if the fear of Communism was (partly) well founded, the na-
tional panic about homosexuality really was a pure paranoid fantasy,
in which the country lashed out viciously against a helpless minority
who, in reality, were no danger to anyone. Patriotism may be a fine
thing, but it can easily become malignant unless it is tempered by a
vivid memory of one's nation's crimes. The madness of the I950s'
anti-gay panic deserves a place in the list of America's misdeeds beside
9 See, e.g., HARVEY KLEHR, JOHN EARL HAYNES & FRIDRIKH IGOREVICH FIRsov, THE SE-
CRET WORLD OF AMERICAN COMMUNISM 323 (I 995) ('[This evidence] demonstrates] with unm
takeable clarity that the common perception that 'American communism was a Soviet weapon in
the Cold War' was indeed well founded ....." (quoting M.J. HEALE, AMERICAN ANTICOMMU-
NISM: COMBATING THE ENEMY WITHIN, i830-I970, at i89 (iom))); see also JOHN EARL HAYNES
& HARVEY KLEHR, VENONA: DECODING SOVIET ESPIONAGE IN AMERICA 63, 62-67 (I999) (stat-
ing that the evidence of Communist underground activities has become "overwhelming"). I am
grateful to my colleague Martin Redish for providing these citations. Some of this scholarship is
described in Jacob Weisberg, Cold War Without End, N.Y. TIMES, Nov. 28, i999, ? 6 (Magazine),
at II6. The story is billed on the cover of the magazine with the provocative headline "The Reha-
bilitation of Joe McCarthy."
10 See generally ELLEN SCHRECKER, MANY ARE THE CRIMES: MCCARTHYISM IN AMERICA
(i998).

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2000] BOOK RE VIE WS 204I
the genocide of Native Americans, slavery, Jim Crow, and the intern-
ment of Japanese-Americans.
C. The Emergence of Gay Liberation, 196i-i98i
Ironically, "the American antihomosexual terror helped create a

homosexual rights movement" (p. 83). Those who had been publicly
denounced as gay had nothing more to lose by resisting. The law's re-
pression helped foster a group identity among gays.
During the i96os, the courts showed no particular sympathy for
gays' claims, but gays managed to benefit from that period's newly
vigorous protection of procedural due process and the freedoms of as-
sociation and expression (p. ioo). The reforms of the Warren Court
took away some of the principal tools that police had used to repress
gays. The Court invalidated vague statutes against loitering and va-
grancy (pp. Io8-og).11 It narrowed the prohibition of obscenity and
strengthened the protections for political speech (pp. iI6-23).12 The
newly strengthened right to counsel put a stop to the practice of inter-
rogating suspects without an attorney, which had been an easy means
for police to extract confessions and thereby to compile lists of homo-
sexuals (p. I02).13 "Without the Warren Court rights in place, gay
people would have been more fearful about coming out, and the police
and the censors would have been a lot more bold about suppressing
gay groups" (p. I45).
Since i960, the apparatus of anti-gay repression has largely been
dismantled. Most of the reform that occurred did not originate in the
courts. For example, police harassment of gays diminished when gay
groups became potent forces in urban politics (pp. I03-04). The courts
became helpful only late in the process, as a mobilized gay rights
movement became well established as a force in American political
life. "This is a phenomenon women as well as people of color have
understood: judges did them little good until they had proven them-
selves to be a robust interest group that must be accommodated in a
viable pluralism" (p. ioo).
Most states have now repealed or judicially invalidated their sod-
omy laws. The states that keep theirs on the books virtually never en-
force them against consensual homosexual conduct. Although many
states still discriminate against gays in child custody and adoption, the
11 The key decision was Papachristou v. City of Jacksonville, 405 U.S. I56, i62-63 (I 972).
12 Eskridge cites, among others, A Book Named "John Cleland's Memoirs of a Woman of Pleas-
ure" v. Attorney General, 383 U.S. 413 (I966); and Kingsley International Pictures Corp. v. Regents
of the University, 360 U.S. 684 (1959).
13 Eskridge cites Miranda v. Arizona, 384 U.S. 436 (i966).

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2042 HARVARD LAWRE VIEW [Vol. 113:2035
law is improving even in these areas. Increasing numbers of states

and municipalities now prohibit discrimination against gays.14
II. THE QUEER CONSTITUTION
Turning from battles won to battles still ongoing, Eskridge argues

that the laws that continue to discriminate against gays are unconstitu-
tional. This is the least successful part of the book. If the courts are
to impose gay equality on a reluctant electorate, their legal reasoning
will probably need to be ironclad. Most of Eskridge's arguments de-
scribe options that courts have discretion to pursue rather than conclu-
sions compelled by the law. Even the strongest arguments must be
tempered in light of the political limitations of the courts.
A. Historiography in the Bedroom
Eskridge's constitutional arguments begin with a critique of the

Supreme Court's decision in Bowers v. Hardwick,15 which held that the
constitutional right to privacy does not protect acts of consensual homo-
sexual sex performed within a person's home.16 Eskridge argues that
flaws in the Court's account of history so deeply weaken the case's per-
suasive authority that it should be overruled (pp. I49-73). The flaws are
undoubtedly there. They are not, however, fatal to the result.
The Hardwick decision relied largely on historical, originalist argu-
ments. Michael Hardwick was arrested for having oral sex (p. I49),
which was prohibited as "sodomy" by a Georgia statute.'7 The right to
privacy, the Court held, protects liberties that are "deeply rooted in this
Nation's history and tradition.'" Such a right could not protect sodomy,
because proscriptionsos against that conduct have ancient roots."'19
Eskridge correctly notes that this reasoning rests on confusion
about the historical meaning of "sodomy." The activity traditionally
condemned as sodomy is anal sex. The oral sex in which Hardwick
engaged may be labeled "sodomy" in modern usage, but it was not ille-
gal anywhere in the United States when the Fourteenth Amendment
was framed. It was criminalized only around the turn of the century,
14 State and municipal ordinances prohibiting discrimination on the basis of sexual orientatio
now cover one-fifth of the American population. See James W. Button, Barbara A. Rienzo & Ken-
neth D. Wald, Where Local Laws Prohibit Discrimination Based on Sexual Orientation, PUB.
MGMT., Apr. I995, at 9, 9.
15 478 U.S. i86 (i986).
16 Seeid.at 9o-9i.
17 See id. at i87-88 & n.i (citing GA. CODE ANN. ? i6-6-2 (i984)). The Court's opinion does
not specify the kind of sexual activity in which Hardwick engaged.
18 Id. at I92 (quoting Moore v. City of East Cleveland, 43I U.S. 494, 503 (I977) (plurality opin-
ion)) (internal quotation marks omitted).
19 Id.

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2000] BOOK RE VIEWS 2043
with the rise of the concept of "homosexuality" - a concept unlikely to

have been the subject of ancient proscription, given that the term
"homosexual" entered the English language only about a century ago
(p. i 6o).
Eskridge argues that originalism thus does not support the result in
Hardwick:
At the level of specific intent, there is no evidence that a single framer
would have thought sodomy involved consensual oral sex in i868. At the
level of general intent, every framer would have thought the purpose of
sodomy laws to be insurance that sex occurred only within the context of
procreative marriage, an unconstitutional goal under the Court's post-ig60
privacy jurisprudence. (p. 062)
The idea of compulsory heterosexuality, which was the Court's ration-
alization for the sodomy laws, "would have been literally incomprehen-
sible to the framers of the [F]ourteenth [A]mendment, who would not
have recognized the words 'homosexual' or 'heterosexual"' (p. i63).
None of Eskridge's arguments, however, proves that the Four-
teenth Amendment protects the activity for which Hardwick was ar-
rested. The Amendment cannot mean that any activity that was not
prohibited in i868 is constitutionally protected. If that were true, al-
most all of contemporary environmental, securities, antitrust, con-
sumer protection, and labor law would be unconstitutional. Eskridge
thinks, however, that any originalist inquiry must be translated into a
contemporary context, so that the appropriate question to ask would
be a fairly complex one:
If the framers could have foreseen that laws prohibiting contraception and
abortion would be held to violate the amendment they drafted, because
the amendment was construed to encode a right to sexual privacy, would
the framers have felt that oral sex between consenting adults in the pri-
vacy of their home was distinguishable? (p. 065)
That question is, of course, unanswerable. Certainly, history cannot
answer it. The problem with originalism, Eskridge concludes, is that
it cannot consider whether the rules it generates cohere with other
rights and rules that exist today.
The upshot of Eskridge's historical research, then, is not that
Hardwick was wrongly decided, but that the result in the case cannot
be defended on the ground upon which the opinion stands. To attack
the result itself, Eskridge relies upon precedent. He reviews the pri-
vacy cases that preceded Hardwick and concludes that they stand for
"the Millian idea that people should be left alone by the state unless
their conduct has third-party effects unrelated to 'nosy preferences'
(my preference to make you just like me)" (p. 155).20 He is thus th
20 For other, similar formulations, see pp. 15 I, I73.

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2044 HARVARD LAW RE VIEW [Vol. 113:2035
latest in a long line of commentators to conclude that the pre-

Hardwick privacy cases rest on sexual libertarianism.2'
A close reading of these cases indicates, however, that they were
concerned less with the libertarian goal of securing sexual liberty than
with promoting social cohesion and protecting traditional institutions.
The Court has rejected at least as often as it has sustained privacy
claims involving private conduct between consenting adults. Griswold
v. Connecticut,22 the wellspring of modern privacy caselaw, which pro-
tected the right of married couples to use contraceptives, relied heavily
on the traditionally favored status of marriage,23 and the concurring
opinions likewise embraced that tradition and rejected sexual libertari-
anism.24 Eisenstadt v. Baird25 extended the right of contraception to
unmarried couples but reaffirmed that the state has a legitimate inter-
est in preventing fornication.26 Roe v. Wade,27 which declared a right
to abortion, specifically rejected the proposition "that one has an un-
limited right to do with one's body as one pleases."28 A particularly
striking illustration of the Court's emphasis on tradition is a pair of
cases in which the Court protected traditional families from zoning
laws but withheld similar protection from households made up of un-
related persons.29 In short, the line of cases preceding Hardwick sug-
gested that legislation concerning sexual morality was constitutionally
legitimate, too many times for Hardwick plausibly to be characterized
as an anomaly in an otherwise libertarian jurisprudence.30 Even the
21 For two somewhat overlapping lists of commentators who have condemned Hardwick on
this basis, see DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE
MAKING OF ROE V. WADE 902 n.97 (I994), and Earl M. Maltz, The Court, the Academy, and the
Constitution: A Comment on Bowers v. Hardwick and Its Critics, i989 BYU L. REV. 59, 6o n.4.
See also Thomas C. Grey, Eros, Civilization and the Burger Court, 43 LAw & CONTEMP. PROBS.
83, 98 (ig80) (stating that "almost all" law review articles and notes on the privacy cases published
between i965 and I979 "found support in the privacy cases for the libertarian position on sexual
morals legislation").
22 38I U.S. 479 (I965).
23 See id. at 486.
24 The concurring Justices indicated that the right to privacy did not cover such things as adul-
tery and homosexuality. See id. at 498-99 (Goldberg, J., concurring) (citing Poe v. Ullman, 367
U.S. 497, 553 (i96i) (Harlan, J., dissenting)); id. at 500 (Harlan, J., concurring in the judgment)
(citing his own dissent in Poe).
25 405 U.S. 438 (I972).
26 See id. at 448.
27 410 U.S. II3 (I973).
28 Id. at I54.
29 Compare Moore v. City of East Cleveland, 43I U.S. 494, 505-06 (I977) (finding unconstitu-
tional an ordinance that prohibited a woman from residing with her two grandsons, who were first
cousins rather than siblings), with Village of Belle Terre v. Boraas, 4i6 U.S. I, 9 (I974) (upholding
an ordinance that prohibited persons unrelated by blood, marriage, or adoption from living to-
gether).
30 Charles Fried acknowledges this tendency in the privacy cases. "Poe [v. Ullman, the prede-
cessor case to Griswold] and Griswold did emphasize the sanctity of marital intimacy, so that a step

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2000] BOOK RE VIE WS 2045
contraception and abortion cases can be understood to be concerned

with social stability, which is threatened by single-parent families, irre-
sponsible young parents, and neglected children.3' Thomas Grey's
survey of the cases concludes:
[T]he Court has consistently protected traditional familial institutions,
bonds and authority against the centrifugal forces of an anomic modern
society. Where less traditional values have been directly protected, con-
spicuously in the cases involving contraception and abortion, the decisions
reflect not any Millian glorification of diverse individuality, but the stabil-
ity-centered concerns of moderate conservative family and population
policy.32
beyond these cases would have had to be taken to reach the conclusion Justice Blackmun urged [in
his dissent in Hardwick]. But it is a short step .." CHARLES FRIED, ORDER AND LAW: AR-
GUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT 83 (i99i). The Court's prior deci-
sions left it free to decline to take that short step.
31 The right to an abortion may also be derivable from a right to bodily integrity, which may
entail a right not to have one's body conscripted for the state's purposes. See Andrew Koppelman,
Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. REV. 480 (i990). Esk-
ridge invokes bodily integrity, but a prohibition on conduct does not violate that right when the
prohibition does not itself imply a command to do anything in particular. It is an exaggeration to
say that Hardwick denies "protection for the body itself" (p. i66).
Jed Rubenfeld, upon whom Eskridge relies (p. I55), argues that sodomy laws are totalitarian
because their prohibition of homosexual activity "forcibly directs individuals . . . into particular
institutional orbits, chief among which are the nuclear family and the constellation of practices
surrounding a heterosexuality that is defined in conscious contradistinction to homosexuality." Jed
Rubenfeld, The Right of Prwacy, I02 HARV. L. REV. 737, 8oo (i989). The effect Rubenfeld de-
scribes has certainly occurred. The combined forces of law and social pressure have driven many
gay people into heterosexual marriages (sometimes with disastrous results). Both forces, however,
have lost much of their totalizing power in recent decades. The availability of contraception and
abortion, combined with the tolerance of premarital sex, means that even forcing people's desires
into heterosexual channels need not entail coercing those people into "a network of social institu-
tions and relations that will occupy their lives to a substantial degree." Id. Perhaps the gay man
must content himself with a heterosexually induced orgasm on Saturday night, but that fact need
not preoccupy his life the way a heterosexual marriage would. Moreover, sodomy laws are com-
monly disobeyed, so the laws' affirmative power is weak. If "[t]he living force of the law is at issue,
not its logical form," id., then it is relevant that the law's living force is in fact negligible.
32 Grey, supra note 2I, at go; see also Robert A. Burt, The Constitution of the Family, I 979 SuP.
CT. REV. 329 (characterizing the Court's family jurisprudence as concerned with the preservation
of traditional social bonds and legitimate authority). I have not cited all the evidence that these
writers compile, so the skeptical reader should consult them.
Laurence Tribe and Michael Dorf concede that Grey's observation is "realistic," but argue
that the approach he describes "is not something that deserves to be called constitutional interpre-
tation." LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 59 (i99i).
It is inappropriate, they argue, for the Court to define basic liberties "by applying the views of the
Mayo Clinic or of Planned Parenthood, whether or not one regards those views as socially enlight-
ened." Id. But the subjective balancing of interests that they condemn seems to be an indispensa-
ble prerequisite to the adoption of the principle that they propose, which is that "consensual inti-
macies in the home are presumptively protected as a privilege of United States citizens." Id. at 6o.
'flibe and Dorf concede that the choice of the level of abstraction at which to read the Constitu-
tion's liberty clauses is "a choice that neither the Constitution's text nor its structure nor its history
can make for us." Id. at ii6. But then, none of these sources prevent the Court from reaching the
result that it did in Hardwick.

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2046 HARVARD LAWREVIEW [Vol. II3:2035
The principle of the privacy cases may be simply that in the area of
sexual conduct, regulations will be subject to heightened scrutiny if
they infringe on interests that the judges deem important. Once the
judges decided that they had a low opinion of "homosexual sodomy,"
that was the end of the matter. Hardwick can, in short, be understood
not as a constitutional anomaly, but rather as a reflection of an
authoritarian tendency that was present in the privacy cases from the
beginning. One can condemn that tendency - I do - but one cannot
argue convincingly that the result in Hardwick is inconsistent with the
preceding privacy caselaw.
Eskridge has one other argument based on substantive due process.
He claims that same-sex marriage is protected by the constitutional
right to marry (pp. 274-75). The Supreme Court has indeed held that
there is such a right.33 This right must, however, have implicit limits.
It cannot mean that I have a right to marry my goldfish, or my sofa.
And the Court has never explained what these implicit limits are.34
Opponents of same-sex marriage say that the right to marry declared
by the Court is implicitly limited to heterosexual marriage.35 The Del-
phic statements of the Court offer no way to know whether those op-
ponents are wrong.
B. Freeing Gay Speech
Eskridge also offers several arguments that the First Amendment's

protection of free speech invalidates anti-gay laws (pp. I74-204).36
One, which has a limited scope, is strong. Others that try to reach far-
ther are less successful.
It is settled First Amendment doctrine that government must not
suppress speech because it disagrees with the ideas expressed therein.
Regulation of expression is permissible only if the government's inter-
est in the regulation is unrelated to the suppression of expression. As
Eskridge argues, this doctrine must condemn policies of "don't ask,
don't tell," such as the U.S. military adopted in I993, under which
gays are nominally permitted to engage in homosexual conduct so long
as they do not reveal to anyone (except, presumably, their partners)
33 For a collection of the cases outlining the right to marry, see pp. 274-75.
34 The absence of any coherent derivation of the right compounds the difficulty of delimiting it.
See Earl M. Maltz, Constitutional Protection for the Right to Marry: A Dissenting View, 6o GEO.
WASH. L. REV. 949 (I992).
35 See, e.g., Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Mar-
riage, i996 BYU L. REV. I, 28-39.
36 Eskridge notes that Chapter 5 of Gaylaw, in which he makes this argument, grew out
earlier collaboration with David Cole (p. I75). See David Cole & William N. Eskridge, Jr.,
Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct, 29
HARV. C.R.-C.L. L. REV. 3I9 (I994).

177.47.114.51 on Fri, 01 Mar 2024 01:37:17 +00:00
that they are gay.37 Such a policy "makes sense only if homosexual
conduct and identity are not in themselves problematic; if they were,
there would be no basis for directing military officers not to ask about
or investigate the possibility of private homosexuality" (p. i85). The
government's interest "does not have to do with the physical aspects of
the conduct but with what the conduct communicates to others" (p.
i85). The military defends its policy by arguing that tolerating openly
gay members will jeopardize the cohesion of its units by arousing other
members' prejudices.38 But this kind of defense for repressing speech,
Eskridge notes, is scorned by First Amendment doctrine as the "heck-
ler's veto" (pp. i86-87, I9I-92). The right to say unpopular things
would not mean much if listeners' hostility were a permissible reason
for suppressing that speech.
Thus far Eskridge has a powerful argument. But he is not content
with it. He would like to say that all anti-gay laws, including those
that do target conduct, violate the First Amendment. In order to get
to that result, he makes two other arguments, neither of which is per-
suasive.
The first of these arguments holds that same-sex intimacy is neces-
sary for informed public debate - one of the central purposes of the
First Amendment. "Because gay people and other gender-benders ex-
plore and develop their identity through private sexual conduct, that
conduct is critical to their ability to take part as lesbians, gay men,
transgendered people, and bisexuals in public life" (p. i8i). Richard
Posner observes that this argument proves far too much. The prohibi-
tion of homosexual acts does indeed impair political participation in
the way Eskridge alleges, but so does the prohibition of any activity.
"Since price fixing is criminalized, businessmen who believe that it
should be decriminalized lack an experiential base from which to ar-
gue their point of view. How very sad. The whole of criminal law
would unravel if Eskridge's argument were accepted."39
Eskridge's second weak argument claims that sexual behavior is it-
self a form of expression that is protected by the First Amendment, be-
cause "sex is uniquely communicative. To say 'I love you' is one thing;
to hold a lover's hand can express something more powerfully inti-
mate; and to make love is often a still more profound expression of
37 In fact, the policy has consistently betrayed its promised respect for privacy. See JANET E.
HALLEY, DON'T: A READER'S GUIDE TO THE MILITARY'S ANTI-GAY POLICY 57-I 24 (I999).
38 This prediction is unsupported by evidence, and the military itself does not appear to believe
it. Discharges for homosexuality have always declined in wartime, when the need for unit cohesion
is at its highest. See generally Andrew Koppelman, Gaze in the Military: A Response to Professor
Woodruff, 64 UMKC L. REV. 179 (I995).
39 Richard A. Posner, Ask, Tell, NEW REPUBLIC, Oct. II, 1999, at 52, 54-55 (reviewing Gaylaw).
Posner's review does not, however, mention the distinct, and much stronger, First Amendment ar-
gument that I describe at the beginning of this section.

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what one feels and thinks" (p. I77). Certainly sex is sometimes com-
municative in this way, but, as I note above, government may prohibit
expressive conduct if its interest in doing so is unrelated to the sup-
pression of ideas. As Eskridge himself shows in the first part of his
book, the law has tried to suppress even private, furtive, anonymous
homosexual conduct, where the participants often did not know each
other's names and had no evident interest in communicating anything
at all to one another. The state did not want to suppress any sort of
message; rather, it wanted to target conduct that it considered im-
moral.40
Eskridge ends up falling back on the argument that because sod-
omy is harmless, the only possible reason for disfavoring it is to sup-
press the message that it conveys (p. i86). He offers plenty of evidence
that anti-gay laws have historically established an orthodoxy of com-
pulsory heterosexuality. But at least some proponents of such laws are
primarily concerned with preventing acts they regard as worthless and
harmful, not with communication. Indeed, the most articulate oppo-
nents of gay rights, such as John Finnis,41 Robert P. George,42 James
Q. Wilson,43 Norman Podhoretz,44 and Pope John Paul II,45 argue that
40 Eskridge also stretches First Amendment doctrine beyond recognition when he attempts to
explain why his argument does not establish a First Amendment right to engage in prostitution.
He claims that sex for pay is not as clearly expressive as other consensual sex, but some noncom-
mercial consensual sex (notably sex between strangers) is no more expressive than a prostitute's sex
with her client. 'To the extent that it is expressive," Eskridge argues, "sex-for-pay is, presumably,
commercial speech, which the Court has traditionally allowed the state to regulate more freely
than other forms of expression" (p. i99). But the commercial speech doctrine applies only to adver-
tising and other speech that solicits commercial transactions. See Board of Trustees v. Fox, 492
U.S. 469, 482 (i989). Freedom of speech would be gutted if the commercial speech doctrine ap-
plied to any expression for which pecuniary recompense were paid. Government could regulate
the content of the New York Times, for example, because its readers must pay for their copies. See
id.; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 50I-02 (I952).
41 See John M. Finnis, The Good of Marriage and the Morality of Sexual Relations: Some
Philosophical and Historical Observations, 42 AM. J. JURIS. 97 (I997); John M. Finnis, Law, Mo-
rality, and "Sexual Orientation", 69 NOTRE DAME L. REV. I049 (I994).
42 See Robert P. George, Public Reason and Political Conflict: Abortion and Homosexuality,
io6 YALE L.J. 2475 (I997); Robert P George & Gerard V. Bradley, Marriage and the Liberal
Imagination, 84 GEO. L.J. 30I (I995); Patrick Lee & Robert P. George, What Sex Can Be: Self-
Alienation, Illusion, or One-Flesh Union, 42 AM. J. JURIS. I35 (I 997).
43 See James Q. Wilson, Against Homosexual Marriage, COMMENTARY, Mar. i996, at 34.
44 See Norman Podhoretz, How the Gay-Rights Movement Won, COMMENTARY, Nov. i996, at
32.
45 See Pope John Paul II, Legitimizing Deviant Behavior Leads to Decadence (Feb. 20, I994),
reprinted in 39 THE POPE SPEAKS 249 (I994); Pope John Paul U, Letter to Families (Feb. 2 2, I994),
reprinted in 23 ORIGINS 637 (I994); Congregation for the Doctrine of the Faith, Letter to Bishops on
the Pastoral Care of Homosexual Persons (Oct. i, i985), reprinted in 32 THE POPE SPEAKS 62 (i987);
Congregation for the Doctrine of the Faith, Some Considerations Concerning the Response to Leg-
islative Proposals on the Non-Discrimination of Homosexual Persons (July 23, I992), reprinted in
Responding to Legislative Proposals on Discrimination Against Homosexuals, 22 ORIGINS I74
(I992).

177.47.114.51 on Fri, 01 Mar 2024 01:37:17 +00:00
marriage is inherently heterosexual and that the traditional stigmatiza-

tion of homosexuality reflects a valuable moral insight. This book
does not merely dismiss those views; it does not even mention them.46
Engaging them would have required at least another chapter,47 and
Eskridge cannot be blamed for not wanting to lengthen a 470-page
book further, but then he should not make arguments that presuppose
that such views do not exist.48
C. Other Things Being Equal
Eskridge's final constitutional claim is that the Equal Protection

Clause of the Fourteenth Amendment invalidates laws that discrimi-
nate against gays. Here, too, he has several arguments in his quiver.
One argument rests on Romer v. Evans,49 a cryptically written decision
in which the Supreme Court invalidated a state constitutional amend-
ment denying any kind of antidiscrimination protection to gays.50 The
amendment, the Court held, "raise[d] the inevitable inference that the
disadvantage imposed is born of animosity toward the class of persons
affected.""5 The Court did not, however, provide any guidance as to
whether or when it would deem other statutes discriminating against
gays similarly to reflect impermissible "animus." Eskridge acknowl-
46 Eskridge does discuss the Pope and Finnis briefly in an earlier book. See WILLIAM N.
ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED
COMMITMENT 909i, 97-98 (i996).
47 I describe and critique Finnis and George (and by implication, the Pope, who makes similar
arguments), the most thoughtful and philosophically sophisticated of these writers, at length in
Andrew Koppelman, Is Marniage Inherently Heterosexual?, 42 AM. J. JURIS. 5I (I997). I briefl
refute Podhoretz's claims (and by implication, Wilson's similar arguments) in Andrew Koppelman,
Three Arguments for Gay Rights, 95 MICH. L. REV. i636, i663-66 (I997) [hereinafter Koppelman,
Three Arguments]. All of these writers rely on a certain idealized vision of the gendered traditional
family, a vision that turns out, on examination, to be less attractive than they suppose. See Andrew
Koppelman, Sex Equality and/or the Family: From Bloom vs. Okin to Rousseau vs. Hegel, 4 YALE
J.L. & HUMAN. 399 (1992) (reviewing SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY
(I989)).
48 Janet Halley suggests a more potent and far-reaching First Amendment argument. She in-
terrogates, more deeply than Eskridge does here, the meaning of the prohibition on "homosexual
conduct." The prohibited conduct goes far beyond specified sex acts; it can include such otherwise
innocuous behavior as hand-holding. Evidently, what makes conduct homosexual is that it is a
homosexual who engages in the conduct. The regime that nominally concerns itself only with
regulation of conduct turns out to be deeply concerned with speech, producing a culture of minute
surveillance that constantly monitors every gesture for its message and continually requires mem-
bers to reaffirm their heterosexuality. See HALLEY, supra note 37; Janet E. Halley, Misreading
Sodomy: A Critique of the Classification of "Homosexuals" in Federal Equal Protection Law, in
BODY GUARDS: THE CULTURAL POLITICS OF GENDER AMBIGUITY 35I (Julia Epstein & Kristina
Straub eds., i99i); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Les-
bian, and Bisexual Identity, 36 UCLA L. REV. 9I5 (i989) [hereinafter Halley, The Politics of the
Closet].
49 5 I7 U.S. 620 (1996).
SO See id. at 623-24.
SI Id. at634.

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edges that the decision "commits the Court to no particular posture in

future sexual orientation discrimination cases" (p. 209).
He does, however, offer a theory of anti-gay prejudice that he
thinks may clarify the meaning of the case: impermissible anti-gay
prejudice is "discourse resting upon traditional anti-gay tropes that are
not supported by experience or empirical evidence" (p. 209). The trou-
ble with this way of putting it is that although some of the most
widely held objections to homosexual conduct are not based on "expe-
rience or empirical evidence," neither are they the product of anti-gay
prejudice. Rather, they reflect traditional Christian teachings that
long antedate the twentieth-century hysteria that Eskridge documents
so well.52 Moral objections of this sort do not deny the equal dignity
of persons or equal citizenship in the way that paradigmatic forms of
prejudice, such as racism and anti-Semitism, do. The equal dignity of
all persons is a foundational belief in both Judaism and Christianity;
as an historical matter, contemporary secular liberals got the idea of
equal dignity from those faiths.53 As in his discussion of First
Amendment protection, Eskridge's assumption that he need not ad-
dress traditional morality does all the work in his argument: because
he can see no explanation for the state's behavior except the constitu-
tionally impermissible purpose, he concludes that the impermissible
purpose must be the reason for the state's action.
He is on stronger ground when he considers the psychology of anti-
gay prejudice. Drawing on the work of Elisabeth Young-Bruehl,54 he
argues that prejudice against gays has psychological roots that resem-
ble those of other kinds of irrational prejudice. First, anti-gay preju-
dice is hysterical: "[L]ike the racist, many homophobes view objects of
their hatred as dirty people whose fantasized disgusting conduct justi-
fies imagined or acted-out violence against them" (p. 2 i I). This preju-
dice is also often obsessional: "[L]ike Jews, gay people are viewed as an
advantaged conspiratorial group preying on the homophobe and her or
his kin" (p. 2ii). Finally, homophobia is narcissistic: "[L]ike people of
the opposite sex, gay people are viewed as 'the Other,' a group whose
differentness helps the homophobe define her or his own sexual iden-
tity" (p. 2II). Eskridge is surely right that these tendencies are ubiqui-
tous in American culture. The history that he documents amply shows
their impact on the shape of the law. Although some opponents of gay
rights are thoughtful and decent people whose opinions are the prod-
ucts of reasoned reflection, they have a lot of very nasty allies.
52 See, e.g., THOMAS E. SCHMIDT, STRAIGHT & NARROW? COMPASSION & CLARITY IN T
HOMOSEXUALITY DEBATE (I 995).
53 See Jeremy Waldron, Religious Contributions in Public Deliberation, 30 SAN DIEGO L. REv
8I7, 846 (I993).
54 See ELISABETH YOUNG-BRUEHL, THE ANATOMY OF PREJUDICES (i996).

177.47.114.51 on Fri, 01 Mar 2024 01:37:17 +00:00
2000] BOOKREVIEWS 205I
Courts have traditionally been reluctant to intervene in political

decisionmaking, troubled as they are by what Alexander Bickel called
the "counter-majoritarian difficulty": "[W]hen the Supreme Court de-
clares unconstitutional a legislative act or the action of an elected execu-
tive, it thwarts the will of the representatives of the actual people of the
here and now; it exercises control, not in behalf of the prevailing majority,
but against it."'S To the extent that law reflects hysteria, obsession, and
narcissism, however, the presumptive legitimacy of democratic delib-
eration should be tempered, in the same way that my friend's perfectly
good legal title to his weapon should be tempered by the fact that he
has gone mad since he lent it to me.56
On the other hand, it is hard for courts to know when this kind of
madness is the basis of any particular law. The law's negative treat-
ment of gays is, as Eskridge acknowledges at one point, an "unpredict-
able combination of animus and morality" (p. 206). Because any law
that discriminates against gays is likely to reflect both impermissible
prejudice and permissible moral judgment, it is difficult to say with
certainty when such laws should be held unconstitutional on this ba-
SiS.57
The other58 equal protection argument Eskridge makes is that dis-
crimination on the basis of sexual orientation is a form of sex discrimi-
nation (pp. 2I8-28).59 If Ricky suffers a legal disadvantage because of
his sexual activities with Fred, while Lucy would not be so treated if
she did exactly the same things with Fred, then Ricky is being dis-
criminated against on the basis of his sex. Sex discrimination is sub-
ject to heightened scrutiny under the Fourteenth Amendment. The
Court has held that "the party seeking to uphold a statute that classi-
fies individuals on the basis of their gender must carry the burden of
55 ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR
OF POLITICS i6-I7 (2d ed. i986).
56 I have borrowed the example from Plato. See I PLATO, THE REPUBLIC 33Mc.
57 See Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 WM. & MARY BILL OF
RTS. J. 89 (I997). This is not to say that the case can never be made; some statutes are sufficiently
egregious that no innocent explanation is plausible. One example is the federal Defense of Mar-
riage Act. Pub. L. No. I04-I99, ii0 Stat. 24I9 (i996) (codified as amended at I U.S.C. ? 7, 28
U.S.C. ? I738C (Supp. H i996)); see Andrew Koppelman, Dumb and DOMA: Why the Defense of
Marriage Act Is Unconstitutional, 83 IOWA L. REV. I (I997) [hereinafter Koppelman, Dumb and
DOMA].
58 Eskridge does briefly mention a third argument, that sexual orientation is a suspect classifi-
cation subject to heightened scrutiny (pp. 2I7-i8). I discuss this argument in Part III. See infra
pp. 2058-60.
59 Before discussing this argument, I should disclose that I am biased in the extreme: I have
been making it for years. See ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL
EQUALITY I46-76 (i996); Koppelman, Three Arguments, supra note 47, at i66i-66; Andrew Kop-
pelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L.
REV. I97 (I994) [hereinafter Koppelman, Sex Discrimination]; Andrew Koppelman, Note, The
Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 YALE L.J. I45 (i988).

177.47.114.51 on Fri, 01 Mar 2024 01:37:17 +00:00
showing an 'exceedingly persuasive justification' for the classifica-

tion."60 This burden "is demanding and it rests entirely on the
State."61
This argument has been accepted by a few courts, rejected by
many more. Of those that have accepted it, some did so conclusorily.62
Virtually every court that has rejected this argument has offered what
is now the standard response: that both sexes are treated alike by sanc-
tions against homosexuality because no one of either sex may engage
in sexual conduct with another person of the same sex.63 Ricky can't
marry Fred, but Lucy likewise can't marry Ethel.
This response happens to be the same one that was made on behalf
of the laws against interracial sex or marriage: both races were equally
forbidden to engage in the prohibited sexual conduct, so there was no
60 Mississippi Univ. for Women v. Hogan, 458 U.S. 7i8, 724 (i982) (quoting Kirchberg v. Feen-
stra, 450 U.S. 455, 46i (i98i)), quoted in United States v. Virginia, 5V8 U.S. 5I5, 53I (i996).
61 United States v. Virginia, 5V8 U.S. at 533.
62 The only decision that fully adopts the argument and remains good law is Baehr v. Lewin,
852 P.2d , 67 (Haw. I993). Even in that case, the argument was initially accepted only by two ou
of five judges; it took a supplementary opinion after a change of personnel to make it effectively a
majority opinion. See id. at 74; Koppelrnan, Sex Discrimination, supra note 59, at 204-05. The
argument was intimated, but its implications were not fully articulated, in Nabozny v. Podlesny, 92
F.3d 446 (7th Cir. i996), a case involving a public school's failure to protect an openly gay student
from a campaign of violent harassment The court noted that the school apparently tolerated the vio-
lence 'because both the perpetrators and the victim were males," and found it "impossible to believe
that a female lodging a similar complaint would have received the same response." Id. at 454-55.
The only other case adopting the sex discrimination argument was decided by a lower state court and
has since been excluded from the official reports. See Engel v. Worthington, 23 Cal. Rptr. 2d 329 (Ct.
App. I993) (holding that the refusal of a photographer at a high school reunion to publish a photo-
graph of a same-sex couple violated the state civil rights act's prohibition of sex discrimination), re-
view denied and opinion withdrawn from publication, No. So3605I, I994 Cal. LEXIS 558 (Cal. Feb.
3, I994). One judge of the New Zealand Court of Appeal, that country's highest court, accepted the
argument in Quilter v. Attomey-General, [i998] I N.Z.L.R. 523, 535-36 (Thomas, J., dissenting), but
none of the other four judges endorsed his argument. The United Nations Human Rights Committee
declared that the prohibition of sex discrimination in the International Covenant on Civil and Politi-
cal Rights includes discrimination based on sexual orientation, but it did not state its reasoning. See
Nicholas Toonen v. Australia 1 8.7, U.N. Doc. CCPRIC/5o/D/488 (I992), reprinted in 1 INT'L HUM.
RTS. REP. 97, 105 (I994).
63 See DeSantis v. Pacific Tel. & Tel. Co., 6o8 F.2d 327, 33I (9th Cir. I979); Smith v. Liberty Mut.
Ins. Co., 395 F. Supp. io98, iogg n.2 (N.D. Ga. i975), affd, 569 F.2d 325, 327 (5th Cir. I978); Dean
v. District of Columbia, 653 A.2d 307, 363 n.2 (D.C. I995) (Steadman, J., concurring); State v.
Walsh, 713 S.W.2d 508, 510 (Mo. i986); Baker v. State, 744 A.2d 864, 88o n. 3 (Vt. 1999); Singer v.
Hara, 55 P2d ii87, II90-9i (Wash. Ct. App. 1974); Phillips v. Wisconsin Personnel Comm'n, 482
N.W.2d I21, 127-28 (Wis. Ct. App. I992); Smith v. Gardner Merchant, [i998] All E.R. 852 (C.A.
i998); Regina v. Ministry of Defence ex parte Smith, [i996] Q.B. 5I7, 56o-6i (Eng. C.A. 1995);
Case C-249/96, Grant v. South-West Trains, i998 E.C.R. I-62i, available at i998 ECJ CELEX
LEXIS 3673; X and Y v. UK, 5 App. No. 9369/8i, 5 Eur. H.R. Rep. 6oi (i983); see also Valdes v.
Lumbermen's Mut. Casualty Co., 507 F. Supp. io (S.D. Fla. ig80) (holding that discriminat
against lesbians may constitute actionable "sex-plus" discrimination, but that an employer can
but the charge by showing that it discriminates equally against gay men).

177.47.114.51 on Fri, 01 Mar 2024 01:37:17 +00:00
race discrimination.64 That argument was expressly rejected in

McLaughlin v. Florida,65 in which the Court unanimously invalidated a
criminal statute prohibiting an unmarried interracial couple from habitu-
ally living in and occupying the same room at night.66 "It is readily ap-
parent," wrote Justice White for the Court, that the statute "treats the in-
terracial couple made up of a white person and a Negro differently than
it does any other couple."67 Racial classifications, he concluded, can only
be sustained by a compelling state interest.68 Since the state had failed to
establish that the statute served "some overriding statutory purpose re-
quiring the proscription of the specified conduct when engaged in by a
white person and a Negro, but not otherwise," the statute fell as "an in-
vidious discrimination forbidden by the Equal Protection Clause."69
McLaughlin establishes (what should be obvious even without judi-
cial support) that if disfavored conduct is defined by reference to a char-
acteristic, then the law is not neutral with respect to that characteristic.
If equal application to both races does not stop a law from being a race-
based classification, then equal application to both sexes cannot logically
stop a law from being a sex-based classification.
It is hard to see how the state could satisfy the heightened scrutiny
that the sex discrimination argument demands. Certainly, the mere
invocation of morality, which satisfied minimal scrutiny in Hardwick,
cannot do the job here, where the courts are regarding the laws with a
skeptical eye. Morality has justified many varieties of sex discrimina-
tion, and it could potentially justify anything that the state wanted to
do to anybody.70 As a legal argument, then, the sex discrimination ar-
gument is the most powerful one that Eskridge can invoke.
It would appear, then, that the weaknesses of Eskridge's other con-
stitutional arguments do not matter in the end. Perhaps his free
64 See Pace v. Alabama, io6 U.S. 583, 585 (i883), quoted in Koppelman, Sex Discrimination,
supra note 59, at 209-10.
65 379 U.S. i84 (I964)-
66 See id. at i84.
67 Id. at i88.
68 See id. at 192-93.
69 Id. There are other objections to the sex-discrimination argument, and Eskridge does not at-
tempt to address all of them. Nor can I do so here. For a more detailed treatment, see Andrew Kop-
pelman, Sexual Orientation Discrimination as Sex Discrimination: Answering the Objections (Mar.
2 7, 2000) (unpublished manuscript, on file with the Harvard Law School Library).
70 See Peter M. Cicchino, Reason and the Rule of Law: Should Bare Assertions of "Public Mo-
rality" Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review?,
87 GEO. L.J. I39 (i998). Cicchino argues that morality should not satisfy even rational basis scru-
tiny, see, e.g., id. at I42, but I would not go so far. Legislatures need a certain amount of breathing
room to pursue contestable value choices, as they do when they protect endangered species, pro-
vide funding for the arts, outlaw public sexual intercourse, or prohibit the desecration of corpses.
Because this rationale turns the courts into a rubber stamp, however, morality without more can be
a sufficient basis for a law only if it does not infringe on any weighty constitutional value, such as
equal protection.

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2054 HARVARD LAWRE VIEW Vol. I I3:2035
speech arguments reach only a subset of the laws that discriminate

against gays, but the same is not true of the sex discrimination argu-
ment. One good constitutional argument is all he needs. If you shoot
at me six times, and five of the bullets miss my heart, I will be in no
position to gloat about your poor marksmanship.
But the sex discrimination argument's power, paradoxically, reveals
its lack of power. The trouble is that it would require the courts to do
too much, too fast. It entails sweeping away all legal discrimination
against gays, notably in the law of marriage, at a single stroke. Given the
likely political reaction, judges are understandably hesitant to start down
that road.71 Richard Posner, in a critique of Eskridge's earlier work, per-
suasively argues that "it is a mistake to suppose that legal reasoning alone
can underwrite so profound a change in public policy" as same-sex mar-
riage.72
Eskridge acknowledges the force of Posner's criticism. But he
notes that if Posner is right, then the Court is "in a bind," for rejection
of legally sound gay rights arguments would expose the Court to
charges of pandering to homophobia (p. 230). He concludes that the
Supreme Court should avoid deciding the constitutional issues, pre-
sumably by the discretionary exercise of its certiorari jurisdiction (p.
230).73 "For the foreseeable future, the Court should leave state courts
71 Such a decision, Posner observes, would be considerably bolder than anything else that the
modern Supreme Court has attempted:
When the Supreme Court moved against public school segregation, it was bucking a re-
gional majority but a national minority (white southerners). When it outlawed the laws
forbidding racially mixed marriages, only a minority of states had such laws on their
books. Only when all but two states had repealed their laws forbidding the use of contra-
ceptives even by married couples did the Supreme Court invalidate the remaining laws.
It created a right of abortion against a background of a rapid increase in the number of
lawful abortions. Were the Court to recognize a right to same-sex marriage today, it
would be taking on almost the whole nation.
Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide?, 95
MICH. L. REV. I578, I586 (I997) (reviewing ESKRIDGE, supra note 46) (footnotes omitted).
72 Id. at I585. Posner continues:
Public opinion may change . . . but at present it is too firmly against same-sex marriage
for the courts to act.
... When judges are asked to recognize a new constitutional right, they have to do a
lot more than simply consult the text of the Constitution and the cases dealing with
analogous constitutional issues.... They will have to go beyond the technical legal mate-
rials of decision and consider moral, political, empirical, prudential, and institutional is-
sues, including the public acceptability of a decision recognizing the new right.
Reasonable considerations also include the feasibility and desirability of allowing the
matter to simmer for a while before the heavy artillery of constitutional rightsmaking is
trundled out.
Id.
73 He invokes Alexander Bickel's praise of the Court's "techniques of 'not doing,' devices for
disposing of a case while avoiding judgment on the constitutional issue it raises" (p. 230 (quoting
BICKEL, supra note 55, at i69) (internal quotation marks omitted)). Bickel's i962 book offers a
rich catalogue of such techniques, but since he wrote it, the set of cases in which the Court is re-
quired to hear appeals has been radically constricted. The Court can now easily evade almost any

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alone to develop the sex discrimination argument for same-sex mar-

riage" (p. 230).
This concedes both too little and too much. State courts face the
same political obstacles that Posner invokes. The most prominent case
adopting the sex discrimination argument is the Hawaii Supreme
Court's I993 decision in Baehr v. Lewin,74 which held that the state
would have to recognize same-sex marriages unless it could offer a
compelling reason for refusing to do so0.T A constitutional amendment
enacted by referendum has since overruled that decision.76 However,
courts have more leeway to act than Posner concedes. The Vermont
Supreme Court cited the fate of the Hawaii decision when, in Baker v.
State,77 it refused to order recognition of same-sex marriages.78 At the
same time, it did hold that gay couples were entitled, under the state
constitution, to the same legal rights as married heterosexual couples.79
The result was the most far-reaching domestic partnership law for gay
couples in American history.80 Vermont shows that there are middle
paths between the crusading leadership Eskridge proposes and the ab-
dication Posner advocates.8'
issue simply by denying the petition for certiorari. See ERWIN CHEMERINSKY, FEDERAL
JURISDICTION ? IO.3, at 623-38 (3d ed. i999).
74 852 P.2d44(Haw. I993).
75 See id. at 67-68.
76 See HAW. CONST. art. I, ? 23.
77 744 A.2d 864 (Vt. I999).
78 See id. at 887.
79 See id. at 886.
80 See H.R. 847, i999 Gen. Assemb., Adjourned Sess. (Vt. 2000) (to be codified in scattered sec-
tions of VT. STAT. ANN. tits. 4, 8, 14-I5, i8, 32-33), available at http://www.leg.state vt.us/docs/
2o0o/bills/houselH-847.HTM.
81 Even Hawaii is not an unambiguous lesson against judicial intervention. Politics is not just
about who wins political fights. It is also about what issues make it onto the agenda in the first
place, or are even thought worth discussing. See JOHN GAVENTA, POWER AND POWERLESSNESS:
QUIESCENCE AND REBELLION IN AN APPALACHIAN VALLEY I3-25 (i980). The Hawaii Supreme
Court's decision put the issue of same-sex marriage on the national agenda as it had never been
before. Articles debating the pros and cons of the issue began to appear in newspapers and maga-
zines all over the country. Legislation to prevent recognition of same-sex marriage was enacted in
thirty-two states, but it died in many others. (Eskridge lists thirty of these statutes in appendix B3,
pp. 362-7i, but since his book went to press, California and Colorado have enacted similar laws.
See California Defense of Marriage Act, 2000 Cal. Legis. Serv. Prop. 22 (West 2000) (to be codified
at CAL. FAM. CODE ? 308.5); H.R.B. 1249! 62d Gen. Assem., 2d Reg. Sess. (Colo. 2000) (to be codi-
fied at COLO. REV. STAT. ? I4-2-I04). Up-to-date lists of bills that have either passed or failed are
available on the websites of the Lambda Legal Defense and Education Fund, http://www.
lambdalegal.org, and the National Gay and Lesbian Task Force, http://www.ngltf.org.) Millions of
people have now read sympathetic news stories about gay people in stable, loving relationships
who appear morally indistinguishable from themselves. A recent Wall Street Journal/NBC News
poll found that two-thirds of Americans think that same-sex marriage will be legalized in the next
century. See Christy Harvey, Optimism Outduels Pessimism, WALL ST. J., Sept. i6, i999, at Aio.
Without the prominence of the marriage issue, "domestic partnerships," which were once regarded
as a politically extreme proposal, could never have emerged as the moderate compromise approach

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2056 HARVARD LAW RE VIEW [Vol. 113:2035
D. Beyond Constitutional Law
Gaylaw's arguments do not rely only upon constitutional law.

Some concern matters of pure legislative policy. One need not look to
the niceties of doctrine to understand the atrocity of the Sharon Bot-
toms case,82 in which the Virginia Supreme Court approved a decision
to take a child from his lesbian mother and give custody to his grand-
mother (pp. 273-77).83 Whatever drives such actions by the judiciary,
it cannot be concern for the children, who are surely harmed by this
officious disruption of their lives. "Social scientists have repeatedly
found that children raised in lesbian households are as well socialized,
psychologically adjusted, and capable of peer relationships as children
raised in different-sex or single-parent households" (p. 285).84 Cases
like this one suggest that even now the anti-gay hysteria of the 1950s
has not been exhausted.
Eskridge offers a particularly acute critique of the domestic part-
nership statutes that are now on the books in a number of jurisdic-
tions,85 which he decries not for their skimpy array of benefits they
typically grant hospital visitation and, if one partner is a public em-
ployee, spousal benefits - but for their failure to impose obligations.
"Dissolving domestic partnerships is as easy as filling out a form, and
therefore such arrangements do little to cement the interpersonal
commitment of the domestic partners" (p. 289). Marriage signals
commitment precisely because I am willingly getting myself into some-
thing that I will find hard to get out of again. One of the most heart-
ening aspects of the recent Vermont "civil union" bill is that it is the
first such statute to make same-sex partners go to divorce court to end
their relationships.86
The sensibility that Eskridge brings to policy problems is realistic
and generous.8 The generosity is particularly apparent when he con-
to gay relationships. It is hard to imagine how the success in Vermont could have happened with-
out the previous "failure" in Hawaii.
82 Bottoms v. Bottoms, 457 S.E.2d I02 (Va. I995).
83 See id. at I07.
84 Eskridge offers voluminous citations to support this assertion (p. 455 n.49).
85 See ESKRIDGE & HUNTER, supra note I, 79I-92.
86 See H.R. 847, i999 Gen. Assemb., Adjourned Sess. ? 3 (Vt. 2000) (to be codified at VT. STAT.
ANN. tit. I5, ? I204(d)).
87 However, his embrace of recent developments in queer theory sometimes gets him into trou
ble. For example, he is remarkably skeptical of any legal regulation of even harmful sexual acts,
such as rape or child molestation. The law, he thinks, is caught in a tragic paradox because sup-
pression engenders a discourse that makes the forbidden conduct more attractive and therefore
more likely to occur (p. 269). Perhaps the law against rape actually does not reduce (or even in-
creases) the number of rapes, but that startling conclusion would need much more evidence than
the couple of pages that he offers here. The trouble with the neo-Foucauldian point about criminal
law begetting crime is that it has no stopping point. One could argue on this basis that all criminal
law is futile and perhaps counterproductive because it makes crime more alluring. Applied to as-

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2000] BOOKREVIEWS 2057
riders cases in which gay equality conflicts with claims of religious lib-
erty.88 In such cases, he is generally willing to subordinate the claims
of gays. His overriding social vision is one of pluralism.
In some ways, Eskridge observes, religious and sexual subcultures
resemble each other, and the case for toleration is similar in both cases.
Borrowing a term from Robert Cover, he notes that both tend to be
"nomic communities, people bonded by associations that preserve and
develop a common normative heritage" (p. 294).89 Such communities
are valuable because they give meaning and coherence to people's
lives. For this reason, "the state must allow individual nomic commu-
nities to flourish or wither as they may, and the state cannot as a nor-
mal matter become the means for the triumph of one community over
all others" (p. 295). What ought to be beyond the pale is "Kul-
turkampf," meaning "a state war to assimilate a threatening minority
or to force it into a state-directed conformity" (p. 294).
The consequence of his proposal would be legal equality for gays
everywhere in the United States, but with freedom for their opponents
to form exclusive associations of their own. The proposal is attrac-
tive,90 but it is hard to imagine how it could soon be adopted in the
United States other than by fiat of the federal courts. For reasons al-
ready discussed, this is not likely to happen.91
Another way of compromising deep social divisions, one that is
more likely to occur in the near future, is federalism. Different states
are likely to reach different answers to the question of gay equality,92
sault or robbery, the claim defies common sense. It is not clear why Eskridge thinks it is more per-
suasive if confined to sexual crimes.
88 Richard Duncan is the most articulate and persistent advocate of religious exemptions from
gay rights laws. See, e.g., Richard F. Duncan, Who Wants to Stop the Church: Homosexual Rights
Legislation, Public Policy, and Religious Freedom, 69 NOTRE DAME L. REV. 393, 434 (I994).
89 Eskridge cites Robert M. Cover, The Supreme Court, i982 Term-Foreword: Nomos and
Narrative, 97 HARV. L. REV. 4 (i983).
90 As Eskridge notes, I have made similar arguments in the past (p. 456 n.2). See Andrew Kop-
pelman, Sexual and Religious Pluralism, in SEXUAL ORIENTATION AND HUMAN RIGHTS IN
AMERICAN RELIGIOUS DISCOURSE 2 I5 (Saul M. Olyan & Martha C. Nussbaum eds., I 998). An-
other essay in the same volume suggests that the proposal has its attractions for at least some con-
servatives. See Michael W. McConnell, What Would It Mean to Have a "First Amendment" for
Sexual Orientation?, in SEXUAL ORIENTATION AND HUMAN RIGHTS IN AMERICAN RELIGIOUS
DISCOURSE, supra, at 234.
91 See supra pp. 2054-55.
92 We already see federalism at work with respect to sodomy laws, child custody, and antidis-
crimination protection of gays. We may soon see it with same-sex marriage as well. Michael
McConnell has suggested that local experimentation with same-sex marriage
has the advantage of allowing this rather dramatic departure from past practice to be
tested before it is imposed everywhere.... Whatever one's view on the merits of the so-
cial question, the advantages of using the "laboratories of democracy" provided by our
decentralized, 5o-state system, to test the results, before moving to a new national defini-
tion of marriage, should be apparent.

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2058 HARVARDLAWREVIEW [Vol. 113:2035
and the only federal question that is likely to be presented soon is the
question of where one state's rules end and another's begin.93 To pur-
sue the analogy with religious toleration, the original resolution to
Europe's bloodiest religious wars was not disestablishment or even tol-
eration. Rather, it was the principle cuius regio, eius religio ("he who
rules a territory determines its religion.").94 It is notable, though, that
this solution is unstable and tends toward toleration. Once one decides
that Protestants can be permitted to exist in the next principality, it is
hard to see why they cannot be permitted to exist in one's own town.
A similar tendency is already evident with respect to toleration of gays.
Merely by existing openly, gays are changing social mores, perhaps ir-
reversibly.
III. ESKRIDGE'S SURPRISING TRIUMPH
Gaylaw, then, is a combination of powerful history, thoughtful pol-

icy proposals, and (mostly) uncertain constitutional arguments. How
damaging is the weakness of the constitutional claims?
As we have seen, most of the relevant constitutional doctrine is in-
determinate. The courts have enormous discretion in deciding
whether gays are protected by the right to privacy, the right to marry,
or the right against animus proclaimed in Romer v. Evans.95 Even if
the constitutional doctrine were clearer, however, it might not make
any difference. Even the strongest legal arguments do not guarantee
success, as the fate of the sex discrimination arguments has shown.
The thought of homosexuality can still drive the judicial mind into
desperate confusion. Although Eskridge devotes little space to the ar-
gument that sexual orientation should be a suspect classification under
the Equal Protection Clause,96 the basis on which courts have disposed
of that argument is instructive.
Letter from Michael W. McConnell to Sen. Orrin G. Hatch, July io, i996, reprinted in The Defense
of Marriage Act: Hearing on S. 1740 Before the Senate Comm. on the Judiciary, Io4th Cong. 56, 57
(i996). There are limits to tolerable diversity, however. The most profound moral disagreement in
American history for which a federalist solution was attempted was, of course, slavery. If preju-
dice against gays is morally equivalent to racism, then federalism is the wrong answer.
93 There has been a rich recent literature on choice of law and same-sex marriage. The best
introduction to these issues is Barbara J. Cox, Same-Sex Marriage and Choice-of-Law: If We Marry
in Hawaii, Are We Still Married When We Return Home?, I994 WIS. L. REV. I033. For detailed
analyses of the status of same-sex marriage in light of recent state and federal statutes, see Kop-
pelman, Dumb and DOMA, supra note 57; and Andrew Koppelman, Same-Sex Marriage, Choice of
Law, and Public Policy, 76 TEX. L. REV. 92I (i998).
94 RICHARD S. DUNN, THE AGE OF RELIGIOUS WARS, I559-i689, at 49 (I970). This principle
was adopted by the Peace of Augsburg in I555 and reaffirmed at the end of the Thirty Years' War
by the Peace of Westphalia in i648. See id. at 49-5 I, 76-78.
95 5I7 U.S. 620 (i996).
96 That argument had previously been well developed by others, which is perhaps why Esk-
ridge devotes so little space to it. See Rowland v. Mad River Local Sch. Dist., 470 U.S. I009, IOI4-

177.47.114.51 on Fri, 01 Mar 2024 01:37:17 +00:00
The Hardwick Court expressly declared that it was not deciding

the equal protection question.97 Yet every court of appeals that has
reached that question has concluded that Hardwick forecloses it. The
leading decision, Padula v. Webster,98 reasoned that "[ijt would b
quite anomalous [sic], on its face, to declare status defined by conduct
that states may constitutionally criminalize as deserving of strict scru-
tiny under the equal protection clause."99 This is a non sequitur. It is
embarrassing to need to point out that due process and equal protec-
tion are two distinct constitutional provisions.100 Padula implicitly as-
sumes that if there is any provision of the Constitution that a law does
not violate, the law cannot violate any other constitutional command
either. That proposition is insane. The fact that, in the context of gay
rights, it has been solemnly assumed by panel after panel of federal
judges deserves more comment than it has gotten.
But if the doctrine is uncertain, the history is powerful. It is pow-
erful for two reasons. First, it helps to resolve the doctrinal uncertain-
ties. Whether a classification should be deemed suspect depends, at
least in part, on the motivation that the Court thinks is likely to un-
derlie it. "Racial classifications that disadvantage minorities are 'sus-
pect,"' writes John Hart Ely, "because we suspect that they are the
product of racially prejudiced thinking of a sort we understand the
Fourteenth Amendment to have been centrally concerned with eradi-
cating."101 Repeated instances of unjustified disadvantage strengthen
I7 (i985) (Brennan, J., joined by Marshall, J., dissenting from denial of certiorari); Watkins v.
United States Army, 847 F.2d I329, I345-49 (9th Cir. i988), affd en banc on other grounds, 875
F.2d 699 (9th Cir. i989); Note, The Constitutional Status of Sexual Orientation: Homosexuality as
a Suspect Classification, 98 HARV. L. REV. I285 (i985); Harris M. Miller II, Note, An Argument for
the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexual-
ity, 57 S. CAL. L. REV. 797 (i984).
97 See Bowers v. Hardwick, 478 U.S. i86, i96 n.8 (i986).
98 822 F.2d 97 (D.C. Cir. i987).
99 Id. at Io3; accord Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d
26i, 266 (6th Cir. I995); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 57I
(gth Cir. i990); Ben-Shalom v. Marsh, 88i F.2d 454, 464 (7th Cir. i989); Woodward v. United
States, 87i F.2d io68, I076 (Fed. Cir. i989); see also Romer v. Evans, 5I7 U.S. 620, 64I (i996)
(Scalia, J., dissenting) (citing this reasoning with approval). But see Watkins, 847 F.2d at I345-49
(rejecting this reasoning); Jantz v. Muci, 759 F. Supp. I543, I546-5I (D. Kan. i99i) (same), revd on
other grounds, 976 F.2d 623 (ioth Cir. I992); Dean v. District of Columbia, 653 A.2d 307, 340-44
(D.C. I995) (Ferren, J., concurring in part and dissenting in part) (same); Baehr v. Lewin, 852 P.2d
44, 57 (Haw. I993) (rejecting a privacy challenge to a statute disallowing same-sex marriages while
sustaining an equal protection challenge to the same statute).
100 The point has been explained in detail, with more patience than I could muster, in Cass R.
Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Proc-
ess and Equal Protection, 55 U. CHI. L. REV. ii6i (i988). The contradictions in Padula's reason-
ing are richly explored in Halley, The Politics of the Closet, supra note 48, at 948-5o.
101 JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 243 n. Ii
(I980).

177.47.114.51 on Fri, 01 Mar 2024 01:37:17 +00:00
the case for the kind of generalized suspicion that is embodied in the
suspect classification doctrine. As Ely argues:
The fact that a group has repeatedly been disadvantaged in ways that no
one could convincingly defend should make us suspicious of any legisla-
tion that singles out that group for disadvantage. There is reason to sus-
pect that the prejudices that generated the flagrantly hostile legislation of
past eras are also largely responsible for the facially more palatable classi-
fications of the present day. 102
In his short discussion of the suspect-classification issue, Eskridge
notes that the history he recounts provides pertinent examples of the
evils that motivate the doctrine. It does indeed. Although Eskridge
notes the point only in passing (pp. 2I7-i8), his research enormously
strengthens the case for judicial protection of gays on this basis.
Second, the history is powerful because Eskridge's account destroys
the familiar conservative story of predatory gays, slaves to their pas-
sions, corroding a culture that is based on sober self-control. His nar-
rative of the I950S is a story of a nation gone mad. And the institu-
tions that present themselves as bastions of morality stood silent as
this madness went on. They have a lot to answer for.
It is hard to imagine how anyone could read Eskridge's story with-
out being repelled by the vicious anti-gay hysteria that he documents
so well. John W. Davis famously claimed:
[1]n an appellate court the statement of the facts is not merely a part of the
argument, it is more often than not the argument itself. A case well stated
is a case far more than half argued.... for in many, probably in most
cases, when the facts are clear there is no great trouble about the law. 103
In the end, Eskridge wins his case on the facts. Even proponents of
traditionalist morality, many of whom are, I am sure, free of the mad-
ness that Eskridge describes, should be given pause when they con-
template the destruction that this madness has wrought.
102 Id. at 250 n.64.

103 John W. Davis, The Argument of an Appeal, in JURISPRUDENCE IN ACTION: A PLEADER'S
ANTHOLOGY I71, i8i (Comm. on Post-Admission Legal Educ., Ass'n of the Bar of the City of
N.Y. ed., '953).

177.47.114.51 on Fri, 01 Mar 2024 01:37:17 +00:00

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Review: Why Gay Legal History Matters

Reviewed Work(s): Gaylaw: Challenging the Apartheid of the Closet by William N.

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GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET. By

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Gaylaw is not merely descriptive. It is also a polemic against what

I. THE UNPLEASANT PAST

A. The Origins of Repression, i880-I946

Eskridge's narrative begins in i88o. At that time, homosexuality

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engage in them. Sodomy laws were on the books nearly everywhere,

3 "Pre-i88i prosecutions overwhelmingly focused on male-female, adult-child, or man-ani

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child molesters and gays into a single cat

B. The Fever Peaks, I946-i96i

After the war, the return to normalcy was accompanied by an in-

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charge of sodomy or another sex crime, or a petition to the court, could

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which acted as a clearinghouse, shared police and military records

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C. The Emergence of Gay Liberation, 196i-i98i

Ironically, "the American antihomosexual terror helped create a

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law is improving even in these areas. Increasing numbers of states

II. THE QUEER CONSTITUTION

Turning from battles won to battles still ongoing, Eskridge argues

A. Historiography in the Bedroom

Eskridge's constitutional arguments begin with a critique of the

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with the rise of the concept of "homosexuality" - a concept unlikely to

20 For other, similar formulations, see pp. 15 I, I73.

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latest in a long line of commentators to conclude that the pre-

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contraception and abortion cases can be understood to be concerned

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B. Freeing Gay Speech

Eskridge also offers several arguments that the First Amendment's

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marriage is inherently heterosexual and that the traditional stigmatiza-

C. Other Things Being Equal

Eskridge's final constitutional claim is that the Equal Protection

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edges that the decision "commits the Court to no particular posture in

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Courts have traditionally been reluctant to intervene in political

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showing an 'exceedingly persuasive justification' for the classifica-

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race discrimination.64 That argument was expressly rejected in

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speech arguments reach only a subset of the laws that discriminate

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alone to develop the sex discrimination argument for same-sex mar-

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D. Beyond Constitutional Law

Gaylaw's arguments do not rely only upon constitutional law.