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William Eskridge: Gaylaw

William Eskridge: Gaylaw

USA/UK 2002, 470 pp., brochure, € 28.95
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Here the author presents a monumental opus, in which he traces the gradual, if irregular path, to individual rights for gays and lesbians in American society, particularly as expressed in American laws and jurisprudence. Eskridge reaches way back into the 19th Century. Indeed, getting Eskridge's basic message down to a statable paradigm will be difficult. Eskridge (who is politically a pretty mainstream Democrat), however, shares a rather »libertarian« interpretation of »gay rights«. Indeed, in a few places, he refers to the ideological foundation of the US national documents and legal system as »libertarian«, and he sees the state as the main instrument of gay oppression. The inference is that a truly free people, left on its own, has little reason to isolate and stigmatize gays (as he pointed out when discussing Native Americans in his same-sex marriage book). The use of the state to denigrate those who are sexually or emotionally different developed and intensified late in the 19th Century and for about the first 2/3 of the 20th, through the Industrial Revolution, two World Wars, and the start of the Cold War. And there is the matter of the Closet, a kind of Pivot for Eskridge's organization of his material. For in earlier times (say the Truman-Eisenhower 50's), your »private life« very much mattered. The closet was not to be tolerated. People were to be hunted down and exposed (as during the purges of federal employees and the publications of those arrested in police raids of gay bars). Later, the Closet would seem to upper-class gays almost like a refuge that allowed them their »privacy«. Hence, the temptation for a Bill Clinton of a »Don't Ask, Don't Tell« for gays in the military. Ultimately, though, the »privacy« shield (»I don't want to know about it«) would be perceived as antithetical to expressive free speech and the spirit of what Eskridge calls, as the title to one chapter, »the Sexualized First Amendment«. Eskridge provides a painstaking analysis of the due process (»fundamental right to privacy«), free speech, originalism, status v. conduct, and equal protection arguments that may be applied to sodomy laws. He even goes far enough to rebut the idea that HIV can provide the state a rational basis (or more) for such laws. The primary deterrent effect of sodomy laws is to keep sex in the closet, hidden and underground, precisely the terrain that bred and spread HIV in the late 1970's and 1980's. As for free speech, gay publications, because of the example set by »Comstock« laws in the 19th Century, came under censorship and US Postal Service inderdiction, a prelude to modern day attempts to regulate Internet content.
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