Julian Sanchez has the best analysis of the new round of religious freedom bills, and helpfully borrows Reason magazine’s description of Arizona’s attempt as a “homophobic stunt,” which is really all the rhetorical kicking it deserves.
Sanchez distinguishes among different kinds of discrimination, and persuasively argues that what African Americans went through in the 1960s is different from what lesbians and gay men are going through today. There are similarities between these discriminations, but they are not identical. And the differences require some different thinking about government solutions.
There is one quibble, though, which I think is worth some attention. After looking at our nation’s legacy of slavery and other laws and practices embodying naked racist assumptions, Sanchez moves on to sexual orientation:
Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism.
This misses something essential.
Laws criminalizing sodomy were virtually universal in America, embedded in our legal structure in ways that manifested – for homosexuals — far outside the criminal realm. For most of American history, homosexuals could have no identity as a group to lobby for different laws, no ability to form meaningful relationships (much less marriages), no lawful ability even to drink or dance together in a bar. Few knew there were other homosexuals to even meet, and trying to find out meant the risk of imprisonment. It was not until the 1960s that gay groups could freely send political magazines to one another through the mail without concern about exposure or prosecution.
Those generations that African Americans came from provided at least the comfort of family and identity that was inaccessible to nearly all homosexuals. The closet was a refuge, but had its own repercussions. No ordinary life can be lived entirely in private. For homosexuals, simply to function day-to-day required some level of denial, and the fabrication of an appearance of heterosexuality.
This is certainly different from the regime of racism in American law and culture. But in its own way the centrality of inauthenticity was no small psychological disadvantage, and it was borne entirely internally by each isolated person. Lesbians and gay men spent generations as an invisible population with an invisible burden. And this lasted well into the present.
With the sodomy laws gone, we may soon be able to retire the closet as well. Like racism, the homophobia won’t go away, but its practitioners will place themselves on society’s fringes, for whatever satisfaction that provides them.
A critical part of Sanchez’s argument is that this is already where most homophobes are, and he’s not wrong. Like many of us who are of a certain age, I don’t think the homophobes were prepared for how quickly the world could change around us all.
It did, and if we must still have laws, Sanchez is right that they should take the facts of that world into account. But we should also understand history as correctly as we can. Laws originally written in a world that had no open lesbians and gay men can be far more damaging to homosexuals than laws drafted today designed to flaunt what homophobia still exists.