One result of the recent procession of federal court cases, beginning with Romer v. Evans and including Lawrence v. Texas, and the latest, the Ninth Circuit panel rejection of Prop. 8 in Perry v. Brown and Galinski v. OPM, is that we can now see that the intellectual foundations of the future are being constructed. I don’t just mean the legal constitutional structures that are going to control how we are going to fit into the body of the republic, but also the emotional and psychological structures that will control the way we think about ourselves. The concept of “gay people” is congealing and solidifying. We are, apparently, here. “Gay people” is taking on a definition written by the courts—always a dangerous enterprise—and consequently we are probably headed into a prolonged period of intellectual and psychological error, when biological and legal constructs are out of whack with our felt reality.
The heart of the error that’s developing is this: Our constitutional jurisprudence—and journalism and education and medicine and the rest—is beginning to agree that a person has a “sexuality.” We seem to agree there are two, or maybe three, sexualities, gay and straight and bisexual. Apparently the courts and the other opinion-makers in the culture agree that there aren’t any other possibilities. Sexuality is immutable. A person is either straight or gay or bi all that person’s life. And we know what these three possibilities mean. Sexuality, in this view, is like skin color. It doesn’t change. Sexuality and skin color both indicate characteristics of distinct populations that must be treated equally under the law. And, implicit in this construct that we’re seeing raised in front of us is the demand, written into law, that, to get our rights, we have to come out.
I know how we got here. Before Romer we had no rights recognized by anybody that were founded in the constitution. Bowers v. Hardwick showed us that we wouldn’t get anywhere by claiming there was a right in the constitution to engage in sodomy. So, when they had a chance, legal theorists proposed to follow the lead of the great civil rights cases of the fifties and sixties. Gay people would claim to be a “suspect class,” that is, a class set aside by one immutable characteristic and by a history of discrimination. It seems to be working. Beginning with Romer, and then moving through the other gay civil rights cases, the federal judiciary seems to be buying this approach. Gay people are becoming a suspect class whose rights can only be abridged after “heightened scrutiny.”
The problem, buried in all this, is a version of human sexuality that ain’t necessarily so.
There are many people whose sexuality is not defined by the words “gay” or “straight” or “bi”—men who want sometimes to have sex with another man but who call themselves “straight,” and women who sometimes want to have sex, or even long-term relationships, with men, but who call themselves “lesbians.” There is no hard line between gay and straight. A person may breach that line concurrently or serially, and it gets breached all the time, and over and over. It won’t do, in trying to understand people, to say, as gay people have long said about those who don’t fit its theories, that these people “don’t have courage” or “are confused.” We should take them at their word, and then see where that leads us. And yet, what we’ll actually do is tell them you don’t have courage, you are confused.
Since this is such a big error that is developing, the consequences are going to be dire and hard to correct. A man or a woman can have a real, deeply-felt, consuming sense that he or she is gay—and yet want to have sex with a person of the opposite sex. And a man or a woman can be straight—and yet want to have sex with someone of his or her own sex. People want to go back and forth, without changing any of the words they use to describe themselves, but the ideas that are developing don’t provide an intellectual framework for a description of these people. That’s the problem. For that man who is straight but who has sex only with men—where do his rights come from? How does he feel about himself? Lonely, I’ll bet. Nor do those ideas take into account what is happening in people’s heads. A straight friend, who has a monogamous relationship with his wife, told me that when he has sex with her, he always thinks of naked men. Jimmy Carter’s option—call that adultery—won’t work for most of us or for that friend of mine.
Our culture is developing an understanding of sexuality—and writing it into the law through these court cases—that is rigid, narrow, confining, and immutable, while our sex is fluid, expansive, mutable, and constantly surprising.
The consequence of what’s happening is that people who follow their hearts, or their genes or their lusts, are still not going to find themselves reflected in the structures laid down by the culture and are going to be told, “You do it wrong,” “You are wrong to feel that way.” We are developing an intellectual framework for our sexuality that is going to be as guilt-inducing as the one we’ve had for the last forty years, and it’s clear that it’s the culture, which likes binary thinking because it’s simpler, that has gotten it wrong again.