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Gay Rights on the Right

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First appeared on October 13, 1999 in the Chicago Free Press.

SINCE OCTOBER IS GAY HISTORY MONTH, it seems an apt time to correct one of the persistent errors about gay history - the notion that support for gays came only from the political left. In truth, there was a certain amount of support for gays from libertarians and libertarian-leaning conservatives throughout the 1960s and 1970s.

Perhaps the best place to start is 1960-1961 when two libertarian academics published books that helped set the agenda for future discussion.

In 1960, Friedrich Hayek, an economist and social philosopher at the University of Chicago, and later a winner of the Nobel prize, published "The Constitution of Liberty." Hayek's chief aim was to set out arguments for personal liberty and explain why government coercion was harmful both to the individual and to society.

One of Hayek's key points was that just because a majority does not like something, it does not have the right to forbid it. "The most conspicuous instance of this in our society," Hayek wrote, "is that of the treatment of homosexuality." After noting that men once believed that tolerating gays would expose them to the fate of Sodom and Gomorrah, Hayek added, "Where such factual beliefs do not prevail, private practice among adults, however abhorrent it may be to the majority, is not a proper subject for coercive action for a state."

Just two years later one of Hayek's students wrote a long article, "Sin and the Criminal Law," for the libertarian quarterly "New Individualist Review." Using Hayek's framework, the article attacked all so-called "morals" legislation - e.g., laws against gambling, drug use, suicide, prostitution, voluntary euthanasia, obscenity and homosexuality.

The article dismissed all these as "imaginary offenses" and developed Hayek's argument that such laws should be repealed because the personal freedom of individuals is what creates the conditions for social progress.

Hayek's influence was pervasive among libertarians. To take just one example, in 1976, one of Hayek's students wrote a 12-page pamphlet, "Gay Rights: A Libertarian Approach," for the fledgling Libertarian Party and its presidential candidate Roger Lea McBride.

The pamphlet, one of the major outreach tools of the campaign, outlined the libertarian approach of repealing bad laws instead of passing new ones. It urged the repeal of all laws that prohibited gay sex, gay marriage, gay participation in the military, gay adoption and child custody, cross-dressing and laws that permitted police entrapment. Many of these have become more pressing issues 25 years later.

The other early libertarian book was Thomas Szasz' 1961 "The Myth of Mental Illness," in which Szasz, a professor of psychiatry at Syracuse University, argued that psychiatry was simply a system of social control, that "mental illness" was just a label for socially disapproved behavior and the goal of all therapy should be individual autonomy and self-understanding for the person seeking therapy.

Just as Hayek provided a powerful theoretical structure for opposing sodomy laws and other government controls, so Szasz provided a powerful general argument against the notions that gays are sick and could or should be "cured."

Szasz' argument was quickly adopted by early gay activists and other advocates for gays. In a pioneering essay in Hendrik Ruitenbeek's 1963 anthology, "The Problem of Homosexuality in Modern Society," the independent-minded conservative psychoanalyst Ernest van den Haag reinforced Szasz' approach by arguing vigorously against every possible reason that could be offered for describing homosexuality as sick or immoral or unnatural.

"I do not believe that homosexuality as such can or need be treated," van den Haag wrote, and added that when one psychiatrist said all his gay patents were sick, van den Haag replied that so were all his heterosexual patients.

Van den Haag also mischievously turned traditional neo-Freudian theories about homosexuality upside down by arguing that powerful American mothers and passive fathers probably caused most fear and hostility to homosexuality. Because of this family structure, van den Haag explained, boys have a more precarious identification with their fathers. Their resulting fear of feminine identification leads to an exaggerated insistence on masculinity manifested in part by hostility to homosexuality.

Szasz himself applied his general argument to gays in "Legal and Moral Aspects of Homosexuality" in a 1965 anthology "Sexual Inversion," edited by psychiatrist Judd Marmor.

Szasz repeated his arguments that psychiatric diagnoses were merely labels used for social control. Accordingly, attempts to change homosexuals to heterosexual were simply attempts to change their values. Szasz added that there was no basis for saying that homosexuality was unnatural unless one's standard was universal procreation - hardly a modern necessity.

And Szasz pointed out that homophobia arises because homosexual acts seem to devalue the privileged status of heterosexual acts for heterosexuals. If anyone doubts the cogency of that argument, they need only remember that the most common argument the religious right offers against gay marriage is that it will cheapen or undermine heterosexual marriage.

Szasz returned to the mistreatment of gays in 1970 in "The Manufacture of Madness," where he argued with numerous historical examples that modern psychiatry is best understood as a continuation of the Catholic Inquisition but using pseudo-scientific language.

He described the legend of Sodom and Gomorrah as the first recorded instance of police entrapment of gays, noted that the Catholic church opposed homosexuality primarily because it gave pleasure and urged that the proper goal of psychiatry should be to help people value their own selfhood more than society's judgment about them.

There are other pro-gay libertarians and conservatives, but Hayek and Szasz are particularly important for their broad theoretical frameworks.

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History Lesson: Capitalism, Not Socialism, Led to Gay Rights

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Via David Boaz:

Some historians like to claim socialist ideas helped bring about gay rights in the modern era. But they’re mistaking academic theory for reality….Those gay intellectuals talked a lot about socialism, but they lived in capitalism. And it was the capitalist reality, not the socialist dreams, that liberated gay people.

Some of us can remember when socialists, unlike libertarians, were adamant about not associating their movement with something as disreputable as gay rights.

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Unintended Consequences Undermine Gay Rights in Africa

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U.S. Support of Gay Rights in Africa May Have Done More Harm Than Good, and that’s the New York Times’ summation.

The paper reports:

After an anti-gay law went into effect last year, many gay Nigerians say they have been subjected to new levels of harassment, even violence. They blame the law, the authorities and broad social intolerance for their troubles. But they also blame an unwavering supporter whose commitment to their cause has been unquestioned and overt across Africa: the United States government.

The U.S. support is making matters worse,” said Mike, 24, a university student studying biology in Minna, a town in central Nigeria who asked that his full name not be used for safety reasons. “There’s more resistance now. It’s triggered people’s defense mechanism.”

And there’s this:

Since 2012, the American government has put more than $700 million into supporting gay rights groups and causes globally. More than half of that money has focused on sub-Saharan Africa. … But tying developmental assistance to gay rights has fueled anger across the continent.

Anti-gay American evangelicals have blood on their hands here, but resistance to liberal America’s attempt to impose its values also is a significant factor.

Good intentions expressed through heavy handed actions by a foreign government can and will backfire. A better strategy would be quiet support by privately funded NGOs backing locally controlled LGBT efforts, rather than the U.S. government throwing money around and issuing ultimatums, even if that’s what U.S. LGBT lobbies want to see.

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World Bifurcates on Gay Rights

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As this Washington Post map shows, the world is divided on legal rights for gay people. And lately, in Russia, India, Uganda and Nigeria, things have gotten much worse, as those nations and others pass legislation that in varying degrees deny gay people liberty, or even life.

At the same time, marriage equality and gay inclusion is sprinting forward in the developed Western world. As a tangent, Walter Olson writes about the advances by gays in conservative political parties in the West.

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Gay Rights and Gun Rights

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Writing in the New York Daily News, Akhil Reed Amar, who teaches constitutional law at Yale, argues that “gun lovers should invoke a landmark gay-rights case where the court’s liberals won out,” namely Lawrence vs. Texas. Writing at the Reason magazine blog, Damon W. Root comments on Amar’s column and points to the relevance of a Cato Institute amicus brief filed in Lawrence that states: “America’s founding generation established our government to protect rather than invade fundamental liberties, including personal security, the sanctity of the home, and interpersonal relations.”

Root adds that Lawrence and the Supreme Court’s ruling supporting gun ownership in District of Columbia v. Heller “each represent a major victory for the libertarian approach, with individual liberty triumphing over intrusive government in both cases.”

More. “Instapundit” Glenn Reynolds blogs: “Over the years I’ve often said that in my ideal world, happily married gay couples would have closets full of assault weapons.” The first part hasn’t gone over so well with social conservatives.

Yes, Indeed: ‘Gay Rights a Tricky Issue for Republican’

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The Wall Street Journal reports:

Rep. Nan Hayworth has spent much of her first term in Congress alongside her boisterous, tea-party-backed fellow Republican freshmen, fighting earmarks and trying to slash government spending. But the 52-year-old ophthalmologist from Mount Kisco, N.Y., is tip-toeing down a lonely road largely untrodden by other Republicans on a sensitive social issue: gay rights. Ms. Hayworth, who has a 21-year-old gay son, joined the congressional LGBT Equality Caucus in November, making her one of three Republicans in the largely Democratic group. She’s one of six Republicans backing a bill to give the health benefits that same-sex partners receive the same tax treatment as those that straight couples receive.

And this:

Democrats are trying to tie her to Mr. Romney, the presumptive GOP presidential nominee. “Congresswoman Hayworth has chosen a presidential candidate who would reinstate ‘Don’t Ask, Don’t Tell,'” said Josh Schwerin, a spokesman for the Democratic Congressional Campaign Committee.

Which, despite Romney’s other, real flaws on gay equality issues, is a big cheap partisan lie that some Democrats keep repeating.

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Frank Kameny’s Brief for Gay Rights

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In 1961, Frank Kameny, the pioneering gay-rights activist who was fired from his government job because of his homosexuality, asked the Supreme Court to intervene. The court ignored him and his appeal was forgotten—until now.

Frank’s Supreme Court petition has resurfaced and is now in print via Amazon Kindle, courtesy of Charles Francis and the Kameny Papers project. It’s short; read it. At the very least, buy it (proceeds go to benefit Frank). It is a staggering document, not just of historical value but still, 50 years later, a summa of what the gay civil-rights movement is (or should be) about.

Later in the 1960s, with the emergence of the countercultural left and the counter-countercultural response from the religious right, gay rights became a left-wing movement. (As one activist put it in the 1970s: “Never forget, what this movement is about is fucking.”) Frank, from the start, set his sights much, much higher, drawing a straight line from the Declaration of Independence and the Founders to gay individuals’ right to be left alone and choose their own destiny. The natural home for Kameny’s rhetoric and argumentation is the libertarian right, not the left. The voices he channels are those of Thomas Paine and Thomas Jefferson:

In World War II, petitioner did not hesitate to fight the Germans, with bullets, in order to help preserve his rights and freedoms and liberties, and those of others.  In 1960, it is ironically necessary that he fight the Americans, with words, in order to preserve, against a tyrannical government, some of those same rights, freedoms and liberties, for himself and others.

In a more rational country, gay equality would have been a conservative cause.

When I say the document is staggering, I’m thinking of passages like this:

Petitioner asserts, flatly, unequivocally, and absolutely uncompromisingly, that homosexuality, whether by mere inclination or by overt act, is not only not immoral, but that for those choosing voluntarily to engage in homosexual acts, such acts are moral in a real and positive sense, and are good, right, and desirable, socially and personally.

Imagine the vision and courage it took to say that…to the U.S. Supreme Court!…in 1961! He’s saying that being gay shouldn’t just be tolerated. It shouldn’t even be merely accepted. It should be admired!

Half a century later, when 43 percent of Americans still tell Gallup that homosexuality is morally wrong, and when many gays are still reflexively hostile to the classical liberal tradition, the country is still struggling to catch up with Frank; but now, at least, we can all recognize this amazing man for the prophet he was. See for yourself.

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The Radical Gay Rights Ruling

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For all its morally admirable qualities, Judge Walker's ruling sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty. Which, in America, is a dangerous place to be. (Link to article at the New York Daily News)

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