The War on Gay Rights

I feel violated by American democracy. I live in Georgia, one of eleven states across the nation where an electorate recently approved–with resounding margins–bans on same sex marriage. Almost seven of every ten Georgians who I have to live around voted for legal discrimination against gay people. There is now popular approval for legal homophobia. Heterosexism in law is violence against the lives, bodies, and futures of people who are not straight. This craven use of the administration of justice is violent because the state defines gay people in a way that disables our right to satisfy human needs. A physical blow does not have to be struck. Violence is denying human beings the right to define themselves as they wish. Realize the power of the state to alter lives when gay couples in America are stopped from hospital visitation, prevented from making inquiries about joint financial arrangements, and unable to claim the other’s corpse from a morgue for burial if the blood-kin object. Make no mistake this is American democracy at its worst: using the ballot box to violate human dignity.

Law expresses violence and now tens of thousands of gay couples across the Union are its targets. A legal theorist, the late Robert Cover, once argued that the mere act of legal interpretation is violence. Why? When a judge issues a ruling on a point of law, any point of law, an arbiter says to one side that their claims are meaningless, the court finds some other principle to be operative, and that the state must protect that principle with “legitimate” force. In the case of gay people it matters not that legal principles banning same-sex marriage debase human dignity. Criminal law, also sanctioned by electorates, provides the clearest example of the law’s violence because the guilty are punished with prison, or, in some states, and depending on the crime, killed. Law convicts criminals and orders their punishment. The point is that through the combination of jurisprudence and police force, law fixes identities and determines the remedy for deviance. Marriage laws are now the explicit vehicle of heterosexism; an arrogant way of ordering the world which rests upon the exclusion of gay people from full participation in society so as to shore up the heterosexual standard.

Prior to the November elections, I’d been suppressing the fear that Georgians would pass the same-sex marriage amendment. I subtly suggested to my students in U.S. History classes that if marriage has been about women and men continuing the human race then it has also been about solidifying a particular set of power relations, none of which we need to choose to legitimize in the present and for the future. Other than making these comments, there was little point in trying to organize against the ballot measure in Georgia. Earlier this year, one of the most popular movies in cinemas just outside Atlanta was The Passion of the Christ, by the noted homophobe Mel Gibson. If the consumption of popular culture in the Peach State demonstrates anything, it’s that Georgians are overwhelmingly conservative when it comes to the so-called culture wars.

This fact chills even more than the election of George Bush. But coupled with the prospects of that president appointing at least two, perhaps four, Supreme Court justices, there is reason to recognize our descent into open warfare over so-called “moral issues.” Conservatives permit the law to violate the autonomy of human beings in pursuit of happiness, and popular culture, right-wing politics and evangelical Christianity assist this dehumanization. The mechanics of heterosexism are much like those that permit racism to exist, fear and intimidation. Take this extract from a recent e-mail to the British-born gay American blogger, Andrew Sullivan:

true Americans do not like your kind of homosexual deviants in our country, and we will not tolerate your radical pro-gay agenda trying to force our children to adopt your homosexual lifestyle. You should be EXTREMELY GRATEFUL that we even let you write a very public and influential blog, instead of suppressing your treasonous views (as I would prefer). But I’m sure someone like yourself would consider me just an “extremist” that you don’t need to worry about. Well you are wrong–I’m not just an extremist, I am a real American, and you should be worried because eleven states yesterday proved that there are millions more just like me who will not let you impose your radical agenda on our country.

In those American states that define marriage as the sole privilege of straights–and close down any possibility for the “marriage lite” option of civil unions–a gay identity can bring only marginalization and humiliation.

The effects are most harrowing for gay people who struggle with the straight world. The law’s restriction of rights and the defense of straight privilege in which state actors such as the courts and the police are complicit, will undoubtedly reinforce the closet as a prison. Revealing anything other than a straight identity immediately confirms the status of second-class citizenship. As one teenage correspondent wrote to blogger Sullivan on the significance of Michigan’s prohibition on same-sex marriage:

the American people have just shown my classmates that it’s perfectly fine to discriminate. A direct quote from a ‘friend’ at school today: ‘It’s so cool that all these states just told all the faggots to eat shit and get the hell out’

Heterosexist parents convey this message to discipline their children. Legal inequality, marginalization, and punishment for deviation from the straight norm transmit the same signal: disapproval. In an election debate in South Carolina, now Senator-elect Jim Demint said that gay people and single pregnant women should not be allowed to teach in public schools. When confronted repeatedly over these remarks on the campaign trail and asked if he would apologize, Demint demurred, stating only that he was sorry because so many people kept on thinking about this statement. He brazenly said that he was simply preoccupied with leaving his school-age children with people of dubious moral values. He exhorted people to see the reason behind his concern: fear of difference. Isn’t the state apparatus being used as the tool of the frightened parent? If so, the only way to try to deal with the situation is to question conservatives about the morality of using the state to ban expressions of love.

Federalism will not remedy these injustices. The Bush Administration and the Federal Courts approve of legal homophobia too, so we cannot appeal to the better nature of the executive or the good sense of the judiciary to step in to support equal protection under the law for gay people. In Massachusetts, straight forces employ lawyers who serve the anti-gay cause to undermine that state’s fair-minded marriage laws. Even if lawyers of evangelical religious interests are unsuccessful, a Massachusetts marriage is meaningless in Georgia, unless it’s straight. What in fact we’re seeing is the erosion of federalist cooperation between the states to provide all Americans with access to equal justice under the law. Although Massachusetts may not define marriage in the same way as its heterosexist counterparts, surely it shouldn’t be possible to prevent gays from beyond New England who choose to marry there. And, similarly, on return from their honeymoon, gay couples should be met with peace and equality before the law in their home state. No, the benefits to gay Americans within the federal system have value if one moves to only one state, Massachusetts. Many privileged homosexuals who believe in federalism choose their state of residence. But the majority of gay people cannot move to protect themselves from legalized homophobia. Rather, why should anybody have to move states or countries to become a full human being? Is that really the message Americans want to send the rest of the world: that the land of the free again tolerates legal inequality?

Using the law to violate dignity is a persistent feature in the history of the American republic. I was in Virginia–in Thomas Jefferson’s town of Charlottesville–when I heard the news that two thirds of Georgia’s electorate had outdone those fair-minded Georgians who did not want to ban gay marriage and civil unions. Being in Virginia reminded me that in the late eighteenth century Jefferson had no problem violating the human dignity of Black people even as he celebrated the virtue of the democratic, free republic. The experience of current gay Virginians serves as a foreboding sign of what is to come in the United States: gay couples there cannot enter into any contract with somebody of the same sex who is not related to them. A husband cannot will his husband property in the event of death. Unforgiving straight relatives can now mess in everybody’s business.

The point is that so-called democratic institutions and respect for human rights do not always exist. But the inability to extrapolate meaning from the American history of discrimination further complicates the strategy for undoing these bans on same sex marriage. It’s not apparent to most Americans–and even well-meaning liberals seem to forget this point–that the country’s history, present and now likely future share the feature that the American people have chosen consistently to violate human rights. What seems to be an innovation is that states participating in the newest form of legitimate human rights abuse cannot be defined by region or section and do not enjoy a common set of economic and social arrangements. This form of discrimination is resoundingly national. Gay people cannot make claims upon the language of civil rights to ensure that the nation can still do them justice. The fact that courts permitted slavery and later sanctioned Jim Crow legislation through the 1970s serves as a powerful reminder that the Constitution is a document supportive of the states’ rights to pass such offensive legislation. Should claims for gay equality in marriage ever come before the Supreme Court–especially one staffed by Bush appointees–the writing is on the wall, or at least in the footnotes of federal appeals: one can easily envisage, “In November 2004, electorates in eleven states passed–with overwhelming majorities–explicit bans on same-sex marriage and, in certain instances, bans on civil unions. The states have decided in which direction things will change, and we must follow the precedents that they set.” Unlike in times past, there is no way to turn to the Bill of Rights for redress. Wily conservatives understand that no federal court will undo the way a particular interpretation of Christianity sanctifies marriage. For fear of the activist label, the courts dare not challenge the shield which faith brings to homophobia.

The anti-gay movement can now point to popular approval in thirty-nine states with some sort of Defense of Marriage Act legislation. Throughout the nation, ballots have told gay people that their lives mean less than those of straight people. Supreme Court Justice Antonin Scalia must be reveling in the way the states have demonstrated their approval for conservative values. While Scalia’s commander, Rehnquist, lies dying, their legacy of shoring up states’ rights in Supreme Court jurisprudence will live on. Did the states’ rights constitutionalists on the Court realize that their inability to see beyond their own prejudices would wreak violence upon gay couples?

Bush’s election and the passage of heterosexist marriage laws means that we can have no faith in the power of Americans to do the right thing at the ballot box. Both at home and abroad, the majority has used democracy to sanction violence. Tyranny–the abuse of power–is at hand. There is only one appropriate course of action. My partner and I must now pursue a strategy common to all those who, by virtue of their existence, have ever been subject to the law’s violence. Soon we must immigrate, become refugees, to a place where we can feel like humans as we fight for human dignity. We must join the local and international movements of human rights organizing. Our target must be the violent homophobia of the American legal system. Our weapon is free speech. We must find the spaces to argue that people do violence to other human beings when they ban expressions of love by same-sex couples.

PATRICK TIMMONS is a college professor in Georgia. A British and U.S. national, he researches the death penalty in nineteenth-century Mexico and the contemporary United States. He and his partner were one of the first one thousand couples to enter into a Vermont Civil Union in August 2000.




Patrick Timmons is a human rights investigator who teaches History at El Paso Community College. Criticize his arguments via Twitter @patricktimmons.