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August 29, 2007

Larry Craig

Of course everyone is a-twitter about news of Senator Larry Craig's admission that he pleaded guilty to disorderly conduct after allegedly soliciting sex with an undercover police officer in a men's restroom at the Minneapolis airport.  Craig (R-ID) appeared with his wife to announce that he is not gay.

From a queer perspective, that is a highly plausible, almost indisputable, claim.  According to queer theorists, the fact that a man has sex with other men does not necessarily make him "gay."  Gayness is largely a matter of self-identification. 

One argument that conservatives offer for formal discrimination against lesbians and gay men is that it will deter individuals from so identifying.  Craig is only the latest example demonstrating that this logic just doesn't work.

I should be very clear at the outset: I think the best reasons not to discriminate on the basis of sexual orientation or gender identity is that no valid reason exists for such discrimination (outside of churches, which of course are and should be free under the First Amendment to adopt whatever discriminatory policies they wish -- white supremacist, male supremacist, heterosexual supremacist, etc.), and that many valid reasons exist to prohibit such discrimination. 

But the point remains that, even if you think the world is a better place with fewer LGBT persons in it, the evidence overwhelmingly indicates that even persons with extremely strong motivations, such as a successful career in politics, for avoiding same-sex sexual activity find it almost impossible to do so.  Part of the problem with the debate is that, every time someone like a Republican United States Senator from a conservative state gets caught with his hands in another man's pants, most observers tend to have forgotten the last time it happened, such that they think this is an unusual event. 

This time around, of course, the New York Times recalled the Mark Foley episode of just a year or so ago.  Foley was a Republican member of the House from Florida who got caught sending suggestive e-mails to congressional pages.  But virtually everyone has forgotten about John Paulk.  Paulk appeared with his wife on the cover of Newsweek in 1998 as the poster boy of the "ex-gay" movement, which promotes the idea that lesbians and gay men can become heterosexual with the right combination of psychotherapy and Christian conversion. 

Paulk got caught in a gay bar in Washington, D.C. in 2000.  He said he only went in to use the bathroom.  He failed to explain what he planned to use the bathroom for. 

These episodes illustrate the utility of LGBT rights claims for thinking about the purpose of law.  For conservatives, the moral signal of sodomy statutes and prohibitions on recognizing same-sex marriages are essential to keep most individuals on the (ahem) straight and narrow path.  The fact that such signals are never 100% effective is no reason to get rid of them because they represent, at least according to conservatives, the prevailing moral sentiment of the culture. 

Liberals are more interested in evaluating the practical implications of legislation, but they are so in part because of their own moral imperatives. 

Liberals emphasize the harm that Larry Craig has just suffered, but also the harm his wife and other family members have suffered, because of the fact that Craig apparently has sexual urges that he finds very hard to control.  Heterosexual supremacy, in other words, is not a morally superior framework.  Instead, it creates moral hazards. 

Few LGBT activists couch their arguments in terms of morality, preferring instead to take the absurd position that the state should not try to regulate morality.  All law deals with morality.  Whether one obeys the speed limit is, in an important sense, a moral issue.  I agree with Chai Feldblum and Carlos Ball that LGBT activists should articulate the positive moral arguments on behalf of equality for LGBT persons, rather than conceding the morality argument to conservatives.  For further elaboration of my own thinking on this issue, see my article at SSRN. 

The solution is not to repeal statutes prohibiting public sex, although at least some gay men would advocate that course.  The solution is to create a society in which people like Larry Craig feel no need to conceal their sexual orientation, such that they can form healthy relationships that include legal forms of sexual activity. 

Regardless of what you think about same-sex relationships, insofar as one of the key issues for equal protection analysis in the constitutional doctrine of the United States is access to full participation in the political process, I guarantee that the same fears that keep people like Larry Craig in the closet also keep them from participating fully on their own behalf in the political process.  It sounds strange to say that a United States Senator cannot participate fully in the political process, and I don't mean here that his arrest and guilty plea in Minnesota might cause him to lose his next election.

I mean that we cannot now know what Larry Craig might have accomplished in his political career had he been able to marry a man rather than marrying his wife.  I guess the key reason why I'm not a conservative is that I don't understand why that would be a bad thing.


August 29, 2007 in Equal Protection | Permalink


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I agree whole heartedly with this comment: "The solution is to create a society in which people like Larry Craig feel no need to conceal their sexual orientation, such that they can form healthy relationships that include legal forms of sexual activity."
Legally, that "solution" could come from equal rights under the law (both in theory and in application), in my opinion. Only then will people feel comfortable self-identifying as gay. It makes perfect sense to stay in the closet if you (quite logically) feel that you could be fired, harassed, or even killed due to your sexual orientation. Unfortunately, our laws have not come far enough to protect individuals from such outcomes. Until they do, these kinds of events will most certainly (and unfortunately) continue.

Posted by: Sara R. Benson | Aug 30, 2007 4:16:08 PM

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