Exceptionalism

From the incisive 'Queer Legal History: A Field Grows Up and Comes Out' by Felicia Kornbluh' in 36(2) Law & Social Inquiry (2011) 537–559,

Kevin Cathcart, executive director of Lambda Legal,1 used to say that there was a “gay exception” to major doctrines of US law. In the 1990s, it was certainly easy to believe that Lesbian, Gay, Bisexual, and Transgender (LGBT) people were left out of every just and compassionate aspect of the law: We were still reeling from the Supreme Court's decision in Bowers v. Hardwick (1986), which authorized criminal prosecution of the consensual behavior of two adults in a private bedroom, in part on the grounds that same-sex intimacy had long been despised in Anglo-American law. In addition, the first president elected with substantial debts to the LGBT movement retreated almost immediately from his promise to allow lesbians and gay men to serve openly in the armed forces (Vaid 1995). Instead, President Bill Clinton signed legislation that created a new regime of mandatory closeting (Halley 1999, 1). During that same year, 1993, the Hawaii Supreme Court found that the state's constitutional provision for equal protection on the basis of sex barred it from denying marriage licenses to same-sex couples (Baehr v. Lewin). However, the decision was immediately appealed, and the conservative response to the ruling produced a state constitutional amendment permitting the legislature to deny marriage licenses by statute, which the legislature quickly did (Goldberg-Hiller 2002, 2003; Baehr v. Milke 1996). Despite massive grassroots protests and persistent efforts at reform, state and federal law seemed immune to change in favor of gay rights.

Cathcart's summary of LGBT legal history may no longer be relevant. The Supreme Court began to bring sexual minorities under the sheltering canopy of the federal equal protection clause in Romer v. Evans (1996). Justice Kennedy's majority decision described a Colorado law that preempted local civil rights ordinances as singling out LGBT people for unequal treatment without even the rational state interest that would constitute a justification at the lowest level of scrutiny. The Court extended its reasoning in Lawrence v. Texas (2003), which allowed the protection for intimate conduct it had found in the due process clause of the Fourteenth Amendment, among other places, to encompass the ancient Anglo-American crime of sodomy. In 2010, Congress and President Obama erased the product of President Clinton's compromise—“Don't Ask, Don't Tell”—from military procedures (Servicemembers Legal Defense Fund 2010; Schwartz 2010; Hulse 2010). In California, a federal district court issued an opinion that echoes Romer v. Evans in striking down a popular referendum against same-sex marriage. Judge Vaughn Walker wrote that “moral animus” toward LGBT people or same-sex intimacy was the reason for California's marriage restriction and that such animus is not reasonably related to any legitimate state interest (Perry v. Schwarzenegger 2010).

The compelling questions for historians of law and society concern the nature of the “gay exception,” its origins, and the source of its erosion. In the depressing Clinton years, and even as the Lawrence v. Texas (2003) decision was being handed down, scholars did not know enough about the past to answer these questions. Now, thanks to a generation of scholarship that has itself been influenced by the movement for LGBT rights, we begin to. Much of the recently published work was begun when Cathcart's “gay exception” had its strongest hold; undertones of fury are audible despite the authors' scholarly rectitude and academic style. This body of work joins the insights of women's and gendered legal history with those of contemporary sexuality studies (as well as political history, constitutional history, historical political science in the American Political Development tradition, the history of social welfare, and immigration history) to generate, “what,” in the words of historian Marc Stein, “might be called queer legal history” (Stein 2004, 111).

The new research is “queer” in that it addresses the meeting points between people who expressed their gender or sexuality in ways that were unfamiliar to the officials who interacted with them and legal institutions, personnel, and ideas. This work also “queers” our reading of the legal past. It compels new understandings of material toward which scholars may have thought they had settled interpretations. The books discussed here direct attention to the so-called sexual revolution in the high courts of the 1960s, to immigration law, military practices, veterans' benefits, and the domestic welfare state (Stein 2010; Canaday 2009). This work “queers” the history of marriage law, of urban vice squads, prisons, the relationship between religion and law reform, and military courts-martial (Chauncey 2004; Hillman 2005; Self 2008; Kunzel 2008; Gordon 2010).

How does queer legal history answer the questions implied by Kevin Cathcart's “gay exception” thesis? While they do not address Cathcart directly, the two most comprehensive of the new works, The Straight State by Margot Canaday (2009) and Sexual Injustice by Marc Stein (2010), argue for gay exceptions in twentieth-century US law. The Straight State may be considered a history of the development and solidification of the gay exception, and Sexual Injustice argues that the exception continued and gained new force amidst the so-called sexual revolution in the high courts of the 1960s and early 1970s.

Canaday's The Straight State (2009) is a study of three major areas of legal and governmental practice across most of the twentieth century. She studies the immigration, military, and social-welfare bureaucracies before and after World War Two. Her overall argument is that the federal government both generated the category of “the homosexual”—that is, officials fashioned an increasingly solid idea of normal and abnormal sexual identity to make sense of a range of sexual practices and performances that they found objectionable—and persecuted people who were thought to belong in that category. Her sources are a wide array of public papers that have been utilized either never or rarely before. They include records of scores of administrative hearings, including cases in which people were discharged other-than-honorably from the military, denied permission to immigrate to the United States, or refused public benefits; midlevel and lower level bureaucratic records, which offer a social history of state activity in this one important dimension; and transcripts of congressional hearings and the guidelines issued by executive agencies for the implementation of new policies. These sources allow Canaday to offer a much more complete record than has previously appeared in print of the law of gay-straight discrimination and its meaning in people's lives.

Marc Stein's Sexual Injustice (2010) is narrower in scope and argument than Canaday's, but it arrives at similar conclusions. Stein suggests that there was, indeed, a gay exception in US law, although, unlike Canaday, he is less interested in its emergence within the bureaucratic national state apparatus than in its presence in the appellate jurisprudence of the supposedly sexually liberatory 1960s and 1970s. His sources are the decisions in those cases themselves, plus the material about them in the Supreme Court archives and the records of the public-interest attorneys and organizations that brought them. Stein focuses on one appellate case from the later twentieth century, Boutilier v. Immigration and Naturalization Service (INS; 1967). The “sexual injustice” of the book's title is not merely the exclusion of Clive Michael Boutilier from the United States but what Stein believes was a whole body of “heteronormative” doctrine created by the Supreme Court under Chief Justices Warren and Burger. Stein implies that Boutilier v. INS solidified a gay exception that emerged at the end of World War Two and gained force in the 1960s, even as the strictures on heterosexual expression were loosening. Although Boutilier v. INS was an immigration case, Stein relates it to municipal regulations on the sale of pornography and showing of sexually explicit movies, state marriage statutes, and controls on access to birth control. He argues convincingly that the holding of that case was broadly significant in law and policy. Boutilier v. INS was the last case concerning gay rights that the Supreme Court heard before Bowers v. Hardwick (1986).

Queer legal history has begun to reshape legal and historical scholarship through its contributions to social theory and to at least four substantive areas of law. Among the four, I focus first on the law of marriage, an arena of state activity that neither Canaday (2009) nor Stein (2010) addresses at great length. I argue that a fully rounded understanding of the place of LGBT people in US law must engage the findings on sex, gender, and citizenship of recent scholarship on the history of marriage. I explore histories of heterosexual marriage by Hendrik Hartog (1999, 2004), Nancy Cott (2000), Linda Kerber (1998), and Peggy Pascoe (2009) and the scholarship about sexuality and marriage law by Sarah Barringer Gordon (2002, 2010) and George Chauncey (1990, 2004).

Second, I examine the contributions of queer legal history to the study of the domestic welfare state. Here, I consider Canaday's work in the context of the gendered political history of the past fifteen years. Canaday (2009) builds on the histories of policy and law offered by such historians as Linda Kerber (1998) and Linda Gordon (1994), and “queers” their depiction of the US state. Third, I discuss the military. Debates over “Don't Ask, Don't Tell” and its precursors have spurred extensive journalistic and scholarly writing on the subject of sexuality and the military. However, Canaday and the historian of military law Elizabeth Lutes Hillman (2005) have extended the record of antihomosexual scandals, exclusions, and expulsions to an earlier period than most writers. They grasp the multiple roles of the military branches as signifiers of social status, gateways to decent employment, and sources of robust but conditional welfare state benefits. Fourth, and last, I focus on immigration, an arena in which both Stein and Canaday are interested and in which both offer new perspective on the role of sexuality in defining the literal and figurative boundaries of the nation.