IGF CultureWatch

Originally appeared Oct. 20, 1999, in the Chicago Free Press.

NOW THAT THE LAST National Coming Out Day of the 1990s has come and gone, let us reflect for a moment on a phenomenon that happens twice a year-on October 11 and every Pride.

I will call it Queer Dominance Syndrome (QDS).

During the rest of the year, gays, lesbians, bisexuals and transgenders live our common lives. We come out in large and small ways - yes, we are constantly coming out - but we come out and we fall in love and we basically continue on being a lot like people everywhere. Being lesbian, gay, transgender or bisexual might be a central part of our existence, but it is only one part. We are also musicians, academics, ball players, janitors, students, housewives, store clerks. We are ordinary.

QDS changes all that, especially on college campuses.

On QDS days, everyone who is gay, lesbian, bisexual or transgender is instantaneously queer. We are invited to become radicals. Suddenly, those of us who aren't shy about our sexuality, but who don't advertise it, either, are exhorted to march, wear ribbons, kiss a same-sex person in a high-traffic public area. That is, be someone who you aren't usually. Just to make a point.

(And what that point may be is not clear. GLBTs are more sexual than straight people? We create more explicit signs? We party harder? That we exist is certainly no longer up for debate.)

Unfortunately, those who are more comfortable with these ways of expressing sexual orientation often receive more attention (notoriety?) than those who don't.

Which makes sense, since those who possess a queer sensibility tend to co-opt the movement on QDS days. They prance naked through city streets. They deface property. They are outrageous, rebellious and insensitive. They decide that coming out is ultimately a political act, not a personal one.

Take, for example, what happened on Harvard University's campus this past National Coming Out Day.

Students in Harvard's Bisexual, Gay, Lesbian, Transgender and Supporter's Alliance wallpapered Harvard Yard with signs saying things like, "I praise the good Lord with my wet, quivering clitoris" and "Have more sex. Join BGLTSA." There were signs portraying lesbian sex that read, "We don't enjoy cock at all."

Offended members of BGLTSA responded by posting flyers advocating for a new gay, lesbian, bisexual and transgender group. These read: "I don't like the BGLTSA posters. Is there a group I can join with different values?"

Hooray.

The response, I believe, was exactly right.

Those of us who are anti-QDS are not necessarily assimilationist, conservative, or interested in renouncing GLBT identities or freedoms. I stand with columnist Amy Pagnozzi when she says, "Gay rights, civil rights, women's rights, it doesn't matter what issue you pick, the truth is, movements don't get very far if there aren't a fair number of hotheads to goose them along."

But at this point in our movement - and especially on college campuses - we need to ask ourselves: What does it accomplish when we are offensive? Whom are we winning?

More importantly - whom are we losing?

Recently, a new friend told me about the one time those in our community had made her uncomfortable. She was in college and, on National Coming Out Day, needed to go by the kiss-in gauntlet to get to class.

We all have a different tolerance level for public displays of affection, but this wasn't just kissing. It was groping, making out, practically having sex on the sidewalk. It made her angry, she said. She didn't know what this was proving.

It would have made me angry, too, and it does make me angry when I come across it. Kiss-ins aren't expressing love for a partner - they're expressing anger at society for not accepting all sexual orientations. But all that energy could be put to better use by lobbying for employment rights for GLBTs, or asking an employer to supply domestic partnership benefits.

Yet I've found that the people who make the most noise on QDS days are often the least likely to commit to making a real difference. Do I think we should silence those who want to be in our faces about their sexuality? No, of course not. But we can't let the straight world - or our closeted friends - -think that you have to be out there to be out.

There are other ways. Support groups for less outrageous members of the GLBT community is one solution, especially on college campuses, when the choice is often, "Be radical, or be closeted."

"Be-ins" is another answer. Some colleges have started replacing kiss-ins by these "homosexual acts," which often include such radical activity as reading a book, typing a paper, playing with a dog, etc.

The majority of GLBTs aren't queer. We are people who happen to be gay or lesbian, bisexual or transgender. But we have been lax about making our presence felt. We allow those with more radical sensibilities to take center stage.

We need to go back and mentor college students, helping them to understand that the GLBT universe is a much more diverse place than they know. We need to show up at rallies and put a rainbow sticker on our computer if we're not comfortable wearing one on our person. We must speak up on our issues, we must vote, we must write letters and make phone calls. We must remember to never, ever deny our sexual orientations unless we are in physical danger.

So, yes, if you didn't come out on National Coming Out Day, come out now. But do it in a way you're comfortable with, a way that deepens an understanding of who you are. In the end, that is the most radical act.

Originally appeared in National Journal, October 16, 1999.

ON AUG. 30, the Centers for Disease Control and Prevention reported the results of the first study of HIV infection rates among young urban men, ages 15 to 22, who have sex with men. The news was not good. In the seven major cities studied, 7 percent of young men were infected - and, bear in mind, these are young young men, still at the beginning of their sexual lives. Ten percent of the 22-year-olds were infected. Among African-Americans, the numbers were higher still. "We're not back to the mid-1980s," when the virus was spreading rapidly, says Dr. Linda A. Valleroy, a CDC epidemiologist who worked on the study. "But it continues."

It is hard to know for sure, but new infections of HIV (the virus that causes AIDS) appear to have stabilized at about 40,000 cases a year, according to the CDC. The vast majority of those cases were avoidable. HIV, after all, is not easy to catch. So why have infection rates stopped declining? What is going on out there?

Jim is 23. He is a man of medium height and light build, with wavy auburn hair and an agreeable face that is lent a triangular shape by his prominent cheekbones. His mother and father became acquainted while using and, for a time, dealing drugs. Later, after his mother was clean, she warned Jim ceaselessly about the dangers of drugs, warnings that he heeded. After her marriage to Jim's often jobless father ended, she raised Jim and his five siblings. His father got involved with crystal meth, borrowed money from Jim, did jail time for shoplifting, and then disappeared. Jim thinks his father may be living in Tijuana, Mexico.

His mother was happy for the first year or so after the divorce but then became manic-depressive and, at times, abusive. She would rage and throw things and hit; she would curse men and predict that Jim would turn out as bad as the rest of them, just wanting sex. For stability, Jim turned to school and church. But he told some church people that he saw nothing wrong with two men marrying each other; by then he was having homosexual fantasies. The pastors barred him from participating in church services and skits for younger children. Jim gave up on religion.

School, however, went well. He was admitted to the University of California (Berkeley). Freshman year, at a gay and lesbian community center, he told a coming-out session that he was unsure of his sexuality. A 28-year-old man offered him a ride home and expressed attraction. They had sex without a condom. "I was in denial about the fact that maybe there were bad people in the world," Jim says. "I wanted to believe that everyone was good. That's what kept me going - thinking that good things were going to happen, and people were essentially good."

Afterward, Jim rushed to have an HIV test and to receive counseling: "All of the education you could imagine," he says. "They really tried to help me make a better decision." An anxious week later, the result came back. Negative.

Jim next fell for a straight man in his dorm, to no avail. He imagined a relationship with an ideal man, but did not know where to find such a man or how to pass from sex to a relationship. He would meet men in sex clubs and exchange phone numbers (after exchanging glances, and more), but nothing ever seemed to come of it. "I would try to date them, but it would always wind up not working."

As the months passed, he despaired of finding a partner, grew depressed. He saw no hope for combining passion with intimacy and began to rely on sex for a sense of human contact. In the fall of 1997, he took to frequenting parks and the booths in porn shops. "Afterward, I felt guilty and kind of dirty, but at the same time it didn't last, so I had to go back. I started to get addicted, basically, to anonymous sex with lots of people."

By the time he was 21, the sex clubs were a fixture in his life. He used protection, but condoms broke. They broke more and more often, so that he sometimes wondered what was the point. "In terms of unsafe sex," he says, "there was a progression."

In November 1997, he entered a period of numb despair. "Since I'd had so much failure with all these different relationships, I just lost hope at that point. It was like I didn't care any more. I was giving up, a little bit." That month, he probably had 100 unprotected encounters.

Every so often, alarms rang and red lights flashed. On five occasions during the past few years, broken condoms or absent condoms would send him, panicked, to clinics, where he received counseling and medication to reduce the odds that the virus would take hold. Each time he would shudder with fear and with sickness from the drugs, and he would swear to change. Each time, the results brought a reprieve. Negative - negative - negative.

But, as he danced on the tightrope, he began to feel giddy. "Part of me felt that if I was having so much unprotected sex and I hadn't contracted HIV, I thought maybe I had a natural immunity to it." In 1998, he tried to be more careful about protecting himself, but he spent the summer hustling for money to pay for his apartment and for school. (All this time he was a successful undergraduate at Berkeley.) Meanwhile, the unpaid sex with strangers continued.

More warnings: In the spring of last year, he was raped in a sex club and bled for a week. Two months later, after a porn-shop encounter, the bleeding resumed. He was in the hospital for three days before it stopped.

Part of him was rational and tried to take control. He would swear abstinence but break down after a month. He was often moving between apartments and felt rootless, isolated. His gym workouts were increasingly making him an object of pursuit. This year, in the spring, he says, "I kind of went a little bit haywire." He would visit the sex clubs three times a week, having multiple encounters, many of them unprotected. "When I got in a certain mood, it triggered me to want to have sex, and I didn't want condoms to get in the way."

In June, yet another warning: The health department called. One of his recent sex partners had contracted HIV; the department suggested that Jim get tested. He did. Still negative.

"I felt good about that," he says. "I started to realize it was an addiction. I had to have sex every day in order to feel good about myself." At last, urged by counselors, he began attending Sex-Addicts Anonymous. A week into the program, however, he slipped, and failed to use protection. On July 1, as he swore "never again" yet again, he came down with a bad case of something like the flu. Once more, he went to be tested. This time, he was full of dread.

"I had this feeling it was going to be positive," he says. In mid-July, the results came back. He had HIV.

The weeks since the virus invaded him have brought despondency, regret, guilt, "a lot of fear and anxiety." To talk to him now is to hear him look back on his own recent life as though across a gulf. Three combatants now struggle to control him. One is the earnest and chastened young man who is going on to graduate school in psychology, and who says: "I guess I'm just wishing that I'll be able to find some kind of peace and happiness before I die. And contentment of some sort."

Another is lust, a demon that still roars and rages and breaks its bonds. Thirty-seven days after his positive diagnosis, Jim lost his self-control and had another unsafe encounter with the man who he thinks may have given him the virus. And 37 days after that, he went to a park for sex, and a condom broke. "I haven't been able to get past this barrier of 37 days," he says, sheepishly.

The third combatant is the human immunodeficiency virus. Jim is obtaining treatment through a clinical trial. The enemy is brutally stupid and brutally cunning. HIV is, yes, easy to avoid. But viruses are ingenious exploiters of vulnerabilities. One sort of vulnerability is an open sore or a compromised immune system; another sort is neurosis, folly, or the intoxicant of lust.

At the margins of neurosis, folly, and lust, human self-destruction is restrained not by self-control but by the embrace of institutions: the stabilizing influence of family, the calming influence of church, the settling influence of a sexual culture in which marriage is legal and expected. To Jim, those institutions all seemed, or were, vanishingly remote. They failed him and he failed them. Because his story is not so very rare, the virus will survive and even thrive. So, I hope, will Jim.

At one point in a long telephone interview, Jim asked leave to wash his face. Later I asked: Were you crying? No, he replied. "I feel like I've already cried a lot." One scarcely knows whether to hold Jim or to hit him. In the end, one simply cries, and hopes.

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.

A COMMON CHARGE against gay conservatives is that we are narrow and selfish, ignoring the needs of the disadvantaged. A typical example of this criticism is a recent article by Richard Goldstein in New York's Village Voice. Goldstein dismisses gay conservatives as "a recent arrival in the movement," then chides the Log Cabin Republicans for including too few poor, black, and female members. Finally, he upbraids Andrew Sullivan, the most prominent gay conservative in America, for focusing on gay marriage instead of things like "justice" and economic "security" for oppressed people.

Among progressives, words like "justice" and "security" are placeholders for a broad range of policy choices. As one recent and especially articulate letter to San Francisco's Bay Area Reporter put it, "our struggle for equality should include the struggle for universal access to health care, a guaranteed living wage, affordable and adequate housing for all," and so on. The writer reasons that these are "gay rights issues" because "we are everywhere." Gay conservatives, whom he disparages as out-of-touch, upper-class white males, are then faulted for not backing his policy preferences.

These critics are dead wrong about the gay right. As a matter of fact, gay conservatives are not "new arrivals" to the movement. Contrary to the widespread pop-history about the Stonewall riot, the American gay civil rights movement did not begin in any radical upheaval of the late 1960s. Embarrassing as this may be to some, many of the organizers of the movement in the 1950s were middle-class, white, male, and distinctly "assimilationist" (read: conservative) in their approach to gay civil rights. While it's true that there were also dedicated communists among these pre-Stonewall organizers, some, like Dorr Legg, were lifelong Republicans. They risked losing their freedom, jobs, families, and homes to a far greater degree than we do now.

Further, the undeniable demographic imbalance in the movement has not been limited to gay Republicans. As Stephen Murray notes in American Gay, even radical "queer" and AIDS street-theater groups have been mostly white and middle-class. Of course, there is no reason to conclude from this history that only conservative, wealthy, white males should lead the movement today.

Aside from its errors of history and fact, the left's critique of gay conservatives suffers more serious theoretical weaknesses.

First, it operates from an unworkably expansive definition of what constitutes a gay issue. If, as some would have it, anything that affects the life of any gay person anywhere is a gay issue, then there are no issues that aren't gay issues. It may make strategic sense occasionally to take sides on other issues in order to form political alliances (and the ideological tilt of those alliances will vary). An all-encompassing conception of gay civil rights, however, would make it illegitimate to focus on narrowly defined gay concerns.

That has profound consequences. Any organization that took this definition seriously would get little done for gay civil rights since it would constantly be distracted and divided by important peripheral questions. To avoid being unduly narrow, we become impossibly wide.

Even granting this limitless conception of gay civil rights, why are gays more qualified to hold forth on race and class issues than, say, a union of bricklayers? Sure, we're not incompetent to talk about them; but we're not more competent by virtue of being gay, either. To avoid being selfish, then, we become arrogant.

Second, accepting the notion that every conscientious citizen (gay or not) should be concerned about the problems of beleaguered groups, the next question is how to deal with those problems. Bromides about justice cannot mask how complicated the inquiry now becomes.

Consider the above-mentioned proposals, for example. There's a good argument that state-controlled "universal access to health care" would mean rationed and inefficient health care, with less incentive for entrepreneurial investment in lifesaving treatments and drugs for diseases like AIDS. A government-mandated "guaranteed living wage" - essentially a dramatically higher minimum wage - would be inflationary and would depress employment, hurting the lower classes most of all. "Affordable and adequate housing for all" is pleasant-sounding code language for things like rent control. Yet rent control discourages private investment in low-cost housing, hardly a boon to the poor. It goes on and on like that.

Third, even on strictly gay issues, the critique of gay conservatives' priorities badly misfires. Same-sex marriage, for example, offers more to Goldstein's disenfranchised constituencies than he imagines.

Allowed to wed, poverty-stricken gays will have an opening to the array of advantages marriage provides, including health care, tax breaks, testimonial privileges, and Social Security benefits. The generally higher physical, emotional, and financial health enjoyed by married couples will finally be available to disadvantaged gays - people that are in far greater need of those benefits than rich white boys are.

Women, whose desire for variety in sexual partners is on average lower than men's, are disproportionately more likely to access the benefits of same-sex marriage. Why belittle this simple measure of justice and security for gay women?

What we have is not a debate between a generous group of people who care about the downtrodden and a stingy group of people who don't. What we have, among other things, is a complicated debate between distinct visions of how to help them. That's a serious discussion, unlike the polemical one Goldstein and friends want.

The Religious Right theocrats may win an occasional skirmish, but by all accounts they've been losing the "culture wars" for some time. The public has reached consensus on abortion (leave it legal, except for viable fetuses about to be born), pre-marital sex (go for it, as long as the partners are of legal age), extra-marital sex (not good, but nothing to impeach a president over), and homosexuality ("They're Here, They're Queer, We're Used to It," to quote a recent cover of the conservative National Review).

These positions can change, of course, and on the gay issue attitudes are still evolving from mere toleration to full recognition of legal equality. But these are battles being waged in a fight that is clearly being won by the hundreds of thousands of gay men and lesbians who are not cowering in their closets. In short, the religious right is on the ropes.

Evidence of this can be found in the response received by a coalition of religious-right groups, including the American Family Association, the Christian Family Network, and Concerned Women For America, which asked the declared presidential candidates to sign an anti-gay "pledge." The statement included the candidate's promise to "uphold the sacred institution of marriage as the lifelong union of one man and one woman," to "vigilantly defend this age-old institution against any effort -- judicial or legislative -- to redefine it to include same-sex relationships," to "resist all attempts to provide the benefits and privileges traditionally accorded married couples to unmarried 'domestic partners'," to "oppose all judicial and legislative efforts to place children in homosexual households," to "oppose the promotion of homosexuality as normative in America's public schools," and to oppose "special legal protections based on sexual behavior or preference." That's a lot of "opposes"!

The "pledge" departs from sound conservatism -- the belief in limited government and individual liberty -- in a number of ways, especially by demanding intrusion by the federal government into areas typically left to the states (marriage), to local governments (public education), and to private agencies (adoption). And it even appears to urge measures to restrict private companies from offering domestic partnership benefits to their own employees.

Predictably, the GOP candidates who've positioned themselves on the "cultural right" compliantly signed on the dotted line, including Steve Forbes, Pat Buchanan, and Gary Bauer. What's news, however, is that all three of the GOP's national frontrunners -- George W. Bush, Liddy Dole, and John McCain -- refused to take the pledge. That, in itself, is a sign of the times.

Perhaps because the hard right is losing, it's interesting to watch some of its theorists revealing their true beliefs. The Sept.-Oct. issue of Family Policy, a publication of the Family Research Council, contains several articles blasting the widespread use of contraception. Yes, contraception! I suppose these ideologues feel that if they're going to lose the culture war, they might as well be honest about what their real aims have always been -- to control and regulate all aspects of private, personal, sexual behavior.

One of the articles is "The Deconstruction of Perversion: Paraphilias Come Out of the Closet," by Patrick F. Fagan, a fellow in family issues at the Heritage Foundation. He blames the easy availability of contraception for the rise and increasing openness of "paraphilias" (i.e., "perversions"), including homosexuality, pedophilia, sado-masochism, and voyeurism.

Writes Fagan, "The 'coming out' of paraphilias would never have occurred without the aid of contraception." Legal and accessible birth control, he laments, has led to "infertile sexual pleasure [becoming] an end in itself," which in turn has undermined traditional taboos. He concludes that only an understanding of "the role of contraception in the advance of sexual perversions" will provide "the substantive moral alternative to the distortion of sexuality needed in late twentieth-century America."

The funny thing about this argument is that, leaving aside the reactionary political program, it contains more than a kernel of truth. After "the pill" became widespread during the early '60s, human sexuality was freed as never before from being necessarily tied to procreation. Heterosexuals who value sex as much for emotional intimacy (or even, post-Playboy, physical recreation) as for reproduction can more easily make the leap into seeing "non-procreative" homosexuality as an acceptable variant of sexual expression.

More fundamentally, the idea that the widespread acceptance and use of contraception could be rolled back is about as likely as the horse-and-buggy replacing the car. If this is the position that the anti-gay right finds itself advocating, than we can rest assured that their jeremiads represent the dying embers of yesterday's fires.

THE MURKY MUCK OF compassionate conservatism is clearing up, and the emerging picture isn't always pretty. Texas Gov. George W. Bush's public statements so far in support of criminalizing gay sex, for example, reveal that his views aren't very compassionate. They're not really conservative, either.

The statements are all the more important as a signal about Bush's attitude toward gays because, although numerous states still have laws that forbid sodomy, only a handful aim solely at gay sex the way the Texas law does.

To be fair to Bush, he inherited his state's anti-gay sodomy law. Although it's been around for decades in one form or another, the current version was adopted by a Democratic state legislature in 1993 as part of a comprehensive overhaul of the state penal code. Then it was signed by a Democratic governor, the sainted Ann Richards, who opposed the measure but did almost nothing to stop it. Still, Bush cannot escape the consequences of what he is saying about it now - and neither can we.

Those who support anti-gay sodomy laws come two ways: hard and soft. The hard-on-sodomy position holds that gay sex should be illegal and those who practice it should be thrown in jail. The hard-liners are fully prepared to have the cops barge into your bedroom, arrest you, and haul you away to make license plates. It doesn't bother them that full implementation of their vision of a moral society would assault the traditional conservative principle of limited government. Rigorous enforcement of anti-gay sodomy laws would require the erection of a police state.

Bush is more flaccid when it comes to sodomy. He has promised to veto any attempt to repeal the Texas sodomy law, which he defends as "a symbolic gesture of traditional values."

Yet Bush has never called for actual enforcement of the law. Thousands of gay Texans violate it every night with little fear that a Bush-inspired Gestapo will kick down their doors. Although last year Houston police did arrest two men having sex in a private home, the incident was so bizarre that it was the exception that proves the rule of non-enforcement.

Implicit in Bush's endorsement of the sodomy law as a mere "symbol" and "gesture" is the idea that it should not be enforced. This soft defense is disingenuous. It says to the religious right, "I share your values." It then winks at everyone else and whispers, "But I don't really mean it." It's the kind of politics that promises something with its fingers crossed behind its back. Is this compassionate conservatism in action?

It is certainly not compassionate. Just what "symbolic gesture" does an anti-gay sodomy law make? It is a signal sent from one segment of the population to another and is clear as can be: You are so dirty and disgusting that even your most intimate, loving moments are a stench in our nostrils. It is a form of caste politics.

If you publicly denounce someone as a criminal, the compassionate act is then to jail him to protect him from the mob you've aroused.

But Bush's position is not conservative, either. The father of modern political conservatism, the 18th-century British statesman and political philosopher Edmund Burke, would be aghast at Bush's support for a criminal law he is not prepared to enforce.

"A penal law not ordinarily put in execution seems to me to be a very absurd and a very dangerous thing," Burke argued during a passionate speech urging tolerance for religious minorities. He reasoned that if the law at issue punishes a genuine evil it would be irresponsible not to administer it.

However, if its object is not the suppression of some real wrong, "then you ought not to hold even a terror to those whom you ought certainly not to punish." If it is not right to enforce the law against an offender, Burke argued, then "it is neither right nor wise to menace" him with it. "Take them which way you will," he said of unenforced criminal laws, "they are pressed with ugly alternatives."

A real conservative in the Burke mold would either have the courage of his convictions and enforce the law or drop the matter. The existence of sodomy laws as a middle-finger gesture from the traditional-values majority to gay citizens proves Burke's insight that unenforced criminal laws are a menace and a terror to those they target.

What issues politely from the mouth of a politician may finish crudely on a Wyoming plain. If Bush wants symbols, let him ponder Matthew Shepard on his fence. There's the anti-gay symbol of this era.

Shepard didn't get to that spot by accident. He got there because two boys grew up in a culture that judged gays symbolic criminals; because, as young men, they learned it was their place to execute that judgment, even if the law was unwilling to do so; and they learned that in part because - rather than standing up for real decency, the kind that encourages citizens in a diverse and free society to live side-by-side in peace - influential people like George W. Bush indulge a fake and pretentious decency, the kind that plays at moral judgments it no longer believes in.

I may side with Bush on everything from taxes to China, but as long as he thinks I'm an outlaw in my own land, he won't get this Republican's vote.

First appeared on September 8, 1999, in the Chicago Free Press.

AFTER I FINISHED a recent commentary about the slight shift toward gay inclusiveness by some GOP presidential candidates, it occurred to me that the language they use to describe their positions is as interesting as the moves themselves.

The language candidates Elizabeth Dole, George W. Bush, Steve Forbes, John McCain use to try to appear more tolerant, accepting or inclusive is intentionally evasive or ambiguous. It is designed to suggest as much as possible to voters on all sides of the issue while actually saying as little as possible.

Keep in mind, though, that obvious efforts at evasion are sometimes significant when there are strong pressures, say from the religious right, not to be evasive about issues such as homosexuality.

Perhaps the chief way Republican candidates try to show they are not anti-gay is their willingness to appoint a gay person to their administration. For instance, Bush said earlier this year that he would hire a homosexual "if someone can do a job and a job that he's qualified for."

This sounds positive enough, and we know that Bush has openly gay advisors. But notice the ambiguity. Bush leaves himself an out by saying that a person has to be qualified for the job. When it comes to political appointments, though, qualifications have a strong subjective component. That is, qualifications are partly a function of the person's acceptability to the constituency he will be working with or speaking for.

Is a Baptist "qualified" to be U.S. ambassador to the Vatican? How about an atheist? Not very likely. Is a union-busting corporate attorney "qualified" to be Secretary of Labor? Probably not. Is a gay man "qualified" to be Secretary of Defense, where he would have to deal with the Joint Chiefs of Staff and the military's anti-gay policy? What about a gay man as a senior official in the Department of Education, where he might influence policy for teaching our impressionable, vulnerable school children? What about ambassador to Luxembourg, where he would represent the U.S. government? Many Republican senators apparently think not. What about ambassador to Saudi Arabia, where gay sex is illegal?

In other words if there is sufficient objection to an appointment, that in itself means the person is not "qualified." So Bush's willingness to hire "qualified" gays seems considerably weaker and more flexible than it first appears. Maybe he would hire gays only when no one objected. Maybe the only "qualified" homosexuals are those no one knows about. Is this what Bush means? His answer tells us nothing, as it was designed to do.

Forbes' spokesman Bill Dal Col said his candidate too would be willing to appoint a homosexual "if the person is qualified for the job," but quickly added, "as long as it is not a statement on a lifestyle or promoting a lifestyle." That second part is even more evasive, and it is expressed in the language of the religious right with its overtones about choice and recruitment.

But we need to ask what Dal Col means. When is an appointment a statement about a lifestyle or promoting a lifestyle? Whenever a gay person is the first gay appointee to anything? If so, then no gay person can be appointed to anything higher than current gay appointment levels. In fact, almost any appointment of an openly gay person can be considered a statement about his or her lifestyle -- if only the minimal statement that such a "lifestyle" is neutral or irrelevant. In the current social climate, that is itself a statement about homosexuality to the extent that it rejects condemnation.

So the question remains: Would Forbes hire an openly gay person for anything, or is the concept of an appointment that "is not a statement about a lifestyle" an empty category, a concept with no possible examples? Dal Col's answer was meant to leave that question entirely open so as to commit Forbes to absolutely nothing.

Bush and Forbes also oppose "special rights." According to the New York Times Forbes frequently says he wants "equal rights for all, special rights for none." Bush spokeswoman Karen Hughes told the Times that Bush "doesn't believe in granting legal rights based on sexual orientation." Presumably both are thinking of gay non-discrimination laws or hate crimes laws.

But of course Bush does believe in granting legal rights based on sexual orientation. In Texas, heterosexuals have a legal right to marry the person they love; gays do not. Texas' sodomy law, specifically endorsed by Bush as a statement of "our social values," lets heterosexuals have sex legally, while gays may not. Forbes too opposes the equality of gay marriage and both oppose the right of gays to serve openly in the military, although they approve of open heterosexuals serving.

Which rights then are called "special rights" and which are not? It seems that when heterosexuals have a right that gays lack, and the candidate approves, it is not a "special right." So the "special rights" language does not refer to a real political category; it is merely a rhetorical term, designed to include whatever the candidate wants it to. Whether something is described as a special right or not depends entirely on whether the candidate is for it or against it. If and when Bush or Forbes or anyone else decides to endorse something for gays, he will cease to refer to it as a special right.

So what do these candidates really believe? They believe they would like to be president.

They believe they do not want to alienate voters on either side of a contentious and divisive issue such as homosexuality. They believe any specific position will lose them votes. And they believe they can formulate language that will appeal equally to both sides, allowing each to think the candidate is on their side.

Originally appeared September 4, 1999, in National Journal.

NOT LONG AFTER THE END of the Second World War, a young man named Shiu-kee gathered up a few things and set out to walk from a small village in the Guangdong province of southeastern China. The young man possessed almost nothing in the world, and he hoped to make a better life in Hong Kong. He was not the first young man in his family to make this journey. His elder brother had been vouchsafed the family's scant capital and was sent across the border, where he established himself in business. But the brother broke his promise to return his stake to the family so that others could follow. Shiu-kee thus set out with empty pockets, hoping for the best.

He was a married man with a baby son. Through a matchmaker, he had been paired with a village girl named Yuk-king, whose mother saw Shiu-kee as a hard-working, if poor, young man. The bride and groom met for the first time on their wedding day.

After a few years in Hong Kong, Shiu-kee managed to start a small business, a workshop that made heavy cotton blankets. His prospects looked promising, so he sent for his wife and son to join him in Hong Kong. Middle-class life seemed within their grasp. But then the workshop burned down. The family had no insurance and received no help from the elder brother, and, of course, they were too proud to beg. Thus it was that, in 1961, a baby named Kam-ho was born in a government resettlement building: a warehouse for the dispossessed in a country that does not believe in safety nets.

Kam-ho and his six brothers and sisters and his mother and father - nine of them - lived in one small room, the walls bare concrete, the floor also bare concrete. There was no kitchen or bathroom, no plumbing or central heating. Light was provided by an overhead bulb. They used toilets down the hall and fetched water in pails and cooked over a brazier outside on the mezzanine. They slept over and under one another, sometimes in shifts. In this place Kam-ho spent his early and middle childhood, until his parents, little by little, established themselves as small dealers in the jade business. Finally, they were able to move the family into a small but gloriously middle-class apartment.

Education being paramount in that part of the world, Kam-ho worked devotedly in school and went on to earn a diploma from Hong Kong Polytechnic. He got a job in the tour business and traveled a good deal, and in Tibet he met an American woman. They were both in their 20s and believed they were in love. They got married and lived in Hong Kong for a while, but she hankered for home. In 1990, she brought him to America.

Kam-ho's parents were not pleased that he had married a foreigner, and who would blame them? In the space of only a generation, the family had gone from the world of oxen and arranged marriages to the world of cell phones and multicultural love matches. Still, they were glad that their son had settled down, and they took some pride in his American success. In America, he became known by the English name given him by a teacher in grade school. Kam-ho became Michael.

He became a travel agent, and his wife did this and that, and they lived in a condominium in the Virginia suburbs of Washington, D.C. But the marriage did not go well. They tried to nurse it along, but the task was hopeless, and in 1993 they split, painfully.

Eventually it became clearer why their partnership had not worked out. Michael's ex-wife wound up, some years later, living in St. Louis with a girlfriend. As for Michael, he was given a book by a gay co-worker, who had noticed that Michael couldn't keep his eyes off the gardener. The book was a guide for people coming to terms with their sexuality. Michael began another journey.

In 1910, on the other side of the world from Guangdong, a 17-year-old girl named Sara and called Sadie set out from a small town in what was then Austria-Hungary (now it is in Poland) for the port in Hamburg, where she boarded the S.S. Pennsylvania, bound for New York. According to the ship's manifest, Sara carried $20 with her. She intended to join her sister in New York City and work, the manifest said, as a ``parlor maid.''

Her life, like Michael's parents' lives, would not be easy. The sister died in a fire, leaving Sara on her own, with not much by way of education or skill. She married an Austrian man and had four children, but he was a bigamist and had another family. His visits grew rare, and eventually he abandoned Sara altogether. She worked patchily until President Roosevelt's Aid to Dependent Children program was established in 1935 (the program later became Aid to Families with Dependent Children). After that, Sara got by on welfare and charity. The indigent single mother is not, after all, such a new creature in American life, nor is the ``deadbeat dad.'' Sara's third child, a boy nicknamed Sol, never knew his father.

The boy Sol grew up poor. He played stickball in the streets and went to school with his hair full of stinky kerosene to kill lice. But his grades got him into New York's City College, which was still, in those days, a notable institution. He married a vivacious girl and, with the help of the G.I. Bill (he had done an army stint in Korea), entered and graduated from Yale Law School.By the time Sol began practicing law, he had become Oscar, the name on his birth certificate. In his mid-30s, he and his wife lived in a sprawling house they had built on an acre in a fine Sun Belt suburb. Like Kam-ho, Sol had transformed himself in the space of a generation. Actually, in both cases, not even a generation: in the time, rather, that it takes a young man to set off on his own.

Oscar's three children grew up knowing nothing of stickball in the streets or kerosene in the hair. They knew only green playing fields and fragrant shampoo. They might have been removed from their grandmother Sara by two aeons instead of two generations; she remained crabby and Old World, with a heavy accent, till the end. They all attended Ivy League universities. One of them, in time, moved to Washington, D.C. There, in time, he met Kam-ho, who had become Michael.

Today, over a breakfast of orange juice and cereal, the two of them sit on Michael's back patio in the summer and listen to the cicadas sing. Michael's house is not a suburban McMansion, but it has a dishwater, disposal, central air, and two bathrooms (mirabile dictu - plumbing!). Michael owns it and makes a good living running a travel agency. Even so, he is not finished reinventing himself. He has been going to school at night, learning about computer networks. That, he figures, is where the future lies, and he is still young, and this is America.

His parents from Guangdong and Hong Kong, being traditional Chinese who are well advanced in years, believe him to be single and unattached. They ask, often and anxiously, when he will find someone and settle down. They do not know the truth, which is that he has found someone and settled down, because in their world to have a child living as he does is unthinkable, even incomprehensible. Oscar, for his part, knows all about his son. But he was born in America. His mother, Sara, probably would not have understood, and probably would never have been told.

If Michael had stayed in Hong Kong, he might today be unhappily married to a woman. He might be longing in his heart for--for something. Or perhaps he would be single and furtive. What he could not have been is simply himself, living, among his friends and neighbors, as he desires to live.

If Sara had stayed in Poland, she and her children would probably have been killed and her grandchildren never born. By leaving Europe in 1910, she fled, unknowingly, the gas and the fire that consumed the Jews, and she chose, unknowingly, to live. She chose life for her grandson Jon, who chose, and was chosen by, Michael.

America is not what America is because of its venturesome entrepreneurs or its efficient retail sector or its family values or its Judeo-Christian heritage or its rule of law or its constitutional government or its idealistic (sometimes) foreign policy or its melting-pot tradition. Such things are no doubt important. They are American things. But they are not what makes America a dream rather than just a place.

America is a dream because it is a country where you become someone new. In merely the time it takes you to grow up or to watch your children grow up, you can traverse a greater distance than the Hebrews and Egyptians and Greeks and Romans traversed over the course of a civilization's rise and decline. America is a place that remakes you, and that in so doing remakes itself. It is a place where two men, from worlds far away and far apart, sit together on the back patio in the summer, listening to the cicadas sing.

Delivered at the Log Cabin Republican national convention, New York City, August 28, 1999; televised on C-SPAN.

THE INVITATION HAS ME SPEAKING about an "independent vision," and my first reaction on receiving it was, "This guy's not a Republican but we're inviting him anyway." But in fact it's an extremely apt topic, and I'll take the next ten minutes explaining why I think it's so appropriate at the moment.

The bottom line is this: I'm 40 on my next birthday, which is longer than I ever thought I would live. But, in particular, I never thought I would live long enough to see the opportunity that now, at this moment, and in just the last very few years, is opening itself to gay and lesbian Americans.

The center in this country may soon belong to us. The old dynamic where we were the fringe and the centrist position was that we were strange, is very, very rapidly crumbling. And let me also add that the center is where the future is. In many ways the most profoundly interesting and deeply felt pro-gay, non-gay politician in the country is not a Republican and not a Democrat. It's Governor Jesse Ventura of Minnesota, whom I've had the pleasure of interviewing. This is a man who stood up in a campaign debate against two much better-funded candidates, a Republican and a Democrat, and when asked a question about gay rights said that he felt it was dreadful and ridiculous for the government to prevent, for example, a gay man from visiting his sick lover in the hospital; he said that the government should not be against love.

That's not the way Republicans and Democrats talk, but it is the way radical centrists talk. And the radical center, I think, is where we will go and where we will belong, and where the American public increasingly is. To get there, however, requires a kind of new vow of political independence, and thus the "independent vision."

We, I think, meaning gay people, are moving towards the center, but slowly -- and I think not quickly enough, given the extraordinary opportunity that now arises. And that happens mostly as a matter of a historical accident. I recently finished reading a marvelous book called Out for Good, by Adam Nagourney and Dudley Clendinen, a history of the gay movement since 1969 -- a book that's been mysteriously given the back of critics' hands. What comes out of this book very clearly, when you take 30 years of gay history in a single gulp, is the extent to which this movement was born of extremes -- on both the gay left and the right. As you know, the initial activists, the people who were willing to be openly gay, were predominantly of the left and far left. And also, you know, the only conservatives who were willing to talk about homosexuals, who weren't just too embarrassed to do it, was the radical right. So the initial gay groups had names like The Gay Liberation Front, and had their roots in '60s and '70s radicalism.

Now these people of course were important, courageous, bold, and were there when we needed them. But I think also that in 1999, thirty years later, the movement has basically paid its debt to the radical wing of the movement. And it's time to move on.

We are in fact moving on. But we have a hangover from our historical roots: dependence of two kinds. First, political. And second, intellectual.

The political dependence is that fact that from the beginning the gay movement has been linked at the belly button with the Democratic Party. And you all know all about that. And you probably also know the consequences, which I think have not been particularly good for gays and lesbians. It means that because gays are predominantly identified as Democrats, Republicans have typically had no use for us because they weren't getting our votes anyway; that moderates also had no use for us, because they were so turned off by some of the extreme rhetoric and by some of the extreme behavior that they saw from gay and lesbians. And perhaps worst of all, the Democrats used us as doormats, for the most part.

When looking at Bill Clinton's behavior as President, I'm often reminded of how masterly Ronald Reagan was in dealing with the Religious Right. He kept them happy by throwing them a few bones. He would give a speech, now and then, about the need for school prayer, knowing the Supreme Court would never allow it. And he'd give a speech, now and then, about abortion and how terrible it is, knowing again that the Supreme Court would never actually allow him to change the policy. And with a few words, he would keep the Religious Right happy, and they managed for eight years not to notice that he hadn't done a thing for them. [applause]

It was brilliant, and Bill Clinton, being Bill Clinton, noticed it and I think has done the same thing with gays, who also have not noticed that after eight years, not only has he basically not done a thing for us, but we now have two extremely anti-gay pieces of legislation on the books: the Defense of Marriage Act and the "Don't ask, don't tell" policy. [applause]

I certainly think it's nice to be met with in the White House, and it's nice to have the odd appointment or two, the ambassadorship to Luxembourg. I'm all for that. But I don't think it's enough. The significance of what you people are doing, and what Rich Tafel is doing, is not, in fact, the overt significance. The overt story line is that you folks are opening up the Republican Party to embrace homosexuals. You're often derided for that work because the Republican Party again and again all but says, "Don't bother, we don't want you." So why would you want to join a club that doesn't want to have you as members?

The real significance of what you're doing, however, is creating the possibility of a homosexual swing vote. There is a large block of people in this country who are gay, who are not deeply committed to either party, who vote Republican, or who are Democrats who will vote for Republicans or who will vote for people like Jesse Ventura, radical centrists. When those people have an alternative to the Democratic Party, both parties will have to fight for us -- and that may be beginning to happen now. In effect, what the Log Cabin Republicans are doing is making the world safe for gay independence, and making it possible to be a genuine gay independent. And only when that happens, [applause] only when we are free to swing and the parties have to bid for us, does our power becomes real.

Meanwhile, by the way, notice what is happening to the Religious Right. They only have one place to go, which is the Republican Party, and because they are now not getting what they want, they are in the same position that we used to be in. They're talking about separatism. More power to them, say I. [applause]

Beyond the political swing vote, however, more important and more fundamental to liberating ourselves from dependence is creating an intellectual center. Now, of course, intellectual sounds awfully airy and abstract, and I don't just mean the Queer Studies people and people like that. I'm talking about a place where you can go, for example, if you are comfortable with basic bourgeois values, like marriage; if you're comfortable with religion; if you believe that basic liberal (small 'l') institutions -- markets and property -- are basically good things that we should keep; if you believe that prosperity is as important in the long-run as equality, and in fact that the two must go hand in hand; and if, finally, you are not a revolutionary, if you don't feel the need to radically reform American society at its roots, if in fact you feel pretty darn happy to be here, and you feel that it's basically the most decent society that the world has ever produced.

If you think all of those things, you need a place to go where all your ideas seem to make sense. And as you all know, the signals from the gay movement have been at best diffident to these ideas and sometimes outright hostile. If you believe that abortion is not particularly a gay issue, you may be puzzled by some of what you hear from the activists, and you will certainly by puzzled by what you hear from the Queer Studies community, and many of the Marxists and so on who run that establishment in the academic institutions.

But on the other hand, if you're a member of this intellectual swing vote, you're probably also in your 20s, 30s, 40s, 50s.You're of a generation that's used to being out. You have no intention of going back into the closet and pretending to be straight.And you have no intention of ever insisting on anything less than full equality. Full equality means serving in the military, it means being able to get married, it means not being arrested in your home, as two men were in Texas this year, for making love. You simply won't stand for that; it's not on the table.

You need a place to go if you have these ideas, and I think that, too, is beginning to happen -- and really quite recently, in the '90s. To me a landmark was the publication of Bruce Bawer's book A Place at the Table in 1993. Andrew Sullivan's book Virtually Normal has been extremely important. And we're seeing these ideas now come out in various places. I think of Elizabeth Birch as fundamentally an ally in the center, which is where I think we need to be.

The center at the moment, as we've seen from the behavior from the congressional Republicans in impeachment, has become the great terra incognita of American politics and of American thinking. It's an amazing phenomenon to me.Politicians, and the parties, seem to be unable to find the center even if they trip on it. It's just an extraordinary thing; there's an enormous vacuum that's been created. To get there, I think, an important thing we can do, and are beginning to do, is to develop an intellectual critical mass that says to ourselves and to the public: to be a homosexual does not mean that you have to throw away the standard compact with American society. You can be pro-family, you can be pro-church, you can be pro-responsibility. You can also be pro-equality.

I'll end by telling you briefly about an effort that some of us are making to carve out a this intellectual radical center, this independent place, and begin to create a beachhead. We're calling it the Independent Gay Forum, a name that's modeled on the Independent Women's Forum, though I think the group is quite different. And it's small, we don't have much money. We're just a group of basically writers and thinkers, informally associated, who looked around about a year ago, and said, Hey wait a minute, there's now a critical mass of people out there, of writers -- Bawer, Sullivan, David Boaz, Walter Olson, me, Stephen Miller, Paul Varnell, you could go on -- who don't feel at home with the radical left, who don't feel at home with the radical right, who are writing things and saying things.

So we've created a Web site where we are pulling these ideas together and posting new material every week. There's quite a bit of it out there. You can find the Web site at the address www.indegayforum.org. And what you'll find there are articles where we attempt -- there's no orthodoxy, no single point of view -- to explore the ideas in this radical center.

For instance, why carrying concealed weapons can be a very good thing for homosexuals, as a self-defense strategy. Entirely apart from how you feel about gun control, in 31 states, you can get a license and carry a gun. Now only the most law-abiding people in the country do this, because you have to pay a $100 fee, in many states you have to take a gun safety course, you have to not have a criminal record, you can't have any mental problems, and so on. I know three gay people who will personally say that either their lives were saved or that they avoided very long hospital stays because at that critical moment, when the bashers were coming at them, somebody had a gun.

You can find writing about partner benefits, and why, yes, partner benefits may make sense for homosexuals; but that we as homosexuals ought to oppose partner benefits for heterosexuals, because those benefits really are a substitute for marriage and really do undermine the family. And indeed, when gay marriage is legalized, we ought to be against partner benefits for homosexuals as well.

You'll find criticism of the right wing. You'll find, for example, David Boaz's landmark New York Times piece pointing out, as no one had ever done, that the pro-family right has virtually nothing to say about divorce. He counted their publications and discovered that they have reams of stuff on the homosexual threat to the family, but they never want to talk about divorce. Which do you think is the greater threat to American families?

You'll find attacks on the quota mentality among many of the leading gay groups, for example, who want to say that 50 percent of the board for the Washington march, I'm told, has to be of certain colors, certain genders and so on -- and why that's bad for us. A lively debate on hate-crimes laws. Et cetera.

All this, I think, is beginning to come together in an intellectual safe place for independent thinking. And I suppose the message I want to leave you with is that what I fully expect to happen in the next ten years is a convergence of independent thinking and a convergence of independent political activity that means, finally, we will be the swing vote, and we will be the people you have to capture in the center. And that, I think, is the key to our future.

First appeared August 11, 1999, in the Wall Street Journal under the title "New Jersey Supreme Court Ruling on Boy Scouts Threatens Freedom for All - Including Gays."

IN A 30,000-PLUS-WORD DECISION, the New Jersey Supreme Court has ruled that the Boy Scouts may not exclude gay members from participation in the organization. Because the New Jersey court's ruling conflicts with others (including one made in March 1998 by the California Supreme Court), this issue almost certainly will be reviewed by the U.S. Supreme Court. For this reason, the New Jersey decision deserves scrutiny as well as criticism.

Three points deserve comment. First, this decision erodes freedom of association. Second, it further expands the definition of "public" at the expense of what is "private." And third, while the Court's written opinion offers a strong argument for why the Boy Scouts should voluntarily change their policy, it fails to demonstrate why the government should force them to do so.

One of the things I learned about as a Boy Scout in the early 1970s was the importance of freedom, as embodied in the U.S. Constitution and the Bill of Rights. The Boy Scouts asserted that, were the organization forced to change its membership (and hiring) criteria, its First Amendment rights to free speech, religious liberty, and association would be violated. The New Jersey Supreme Court ruled, incredibly, that "application of the [state's] Law Against Discrimination to Boy Scouts of America does not infringe on its First Amendment rights." Of course it infringes on those rights -- the question is whether such infringement is justified. The Garden State's Supreme Court argues that it is, and that the state's non-discrimination law trumps the First Amendment.

Freedom of association is one of our most precious rights. The New Jersey Supreme Court ruling threatens all of us who want to set standards for our organizations -- including gay men and lesbians.

The court's decision -- now limited to New Jersey, but with foreseeable national ramifications --undermines the right of gay men and lesbians to seek and maintain "queer-safe space" such as social clubs, fraternities and sororities, and social service organizations like Washington, D.C.'s Sexual Minority Youth Assistance League (SMYAL). If the Boy Scouts are not free to set their own membership standards -- however "vague" they might be (a key point in the New Jersey court's criticism) -- shouldn't these gay and lesbian organizations also lose their freedom to do so? Very few gay teenagers are likely to attend Saturday afternoon rap groups to discuss personal problems with their peers if they know that they might be forced to share this private space with heterosexual teens as well.

Diluting freedom of association makes it harder to combat government-based anti-gay discrimination. Respect for freedom of association, on the other hand, is the linchpin in persuading the U.S. Supreme Court to reverse its 1986 ruling in Bowers v. Hardwick, which gave state governments the authority to regulate our most intimate associations, sexual relationships. At the same time, the right to associate with whom we wish, when we wish, where we wish, will be an important factor in overturning the anti-gay Defense of Marriage Act and various state laws prohibiting same-sex marriage.

My colleague, Odell Huff, suggests that the New Jersey court's expansive definition of "public" will have detrimental effects on all citizens. "We should be protecting the private against the intrusion of the 'public,'" said Huff, vice president of Gays and Lesbians for Individual Liberty (GLIL). He adds: "Of course, we should be wary of any organization, which relies heavily on taxpayers' money to subsidize its activities, asserting a right to discriminate. But the Boy Scouts' reliance on government varies widely from place to place, and in most cases it provides predominantly 'private' space." Moreover, if taxpayers object to the Boy Scouts' use of their money in a "discriminatory" manner, the better course would be to withdraw their money, rather than to circumscribe the Scouts' freedoms of association, expression, and religion.

British scholar Nigel Ashford, writing in the Independent Gay Forum, argues a similar point, noting that Britain and the United States both face the same problem. "The distinction between private and state (usually expressed as 'public') is extremely important in a free society. Unfortunately the definition of the private has become narrowed to include only the person's home, and sometimes not even that. The distinction between private and public should be ownership, not who goes there. 'Public' should mean government owned, not open to the public, as in a bar or club." Ashford goes on to say that "a wide definition of private and a narrow definition of public (state) is the best protection for gays. The alternative is that government can legislate and interfere in areas open to the public," such as bars that cater to a gay clientele, erotic video stores, or even social clubs that meet in private homes. He concludes: "Those who control the power of the state will use it for their own purposes and preferences." A minimization of the private that expands the "public" hurts all of us, gay or straight.

That said, one should not conclude that the Boy Scouts' policy of excluding gay boys and men from their ranks deserves our approval. It does not. The New Jersey Supreme Court documents quite extensively how the Scouts' policy is contradictory and may, in fact, be harmful to the organization itself, as well as to the young men it aims to serve. The policy is archaic and bigoted and should be changed.

Still, a self-contradictory and wrong-headed policy does not require (nor deserve) the action of the state to correct it. Many commentators have noted that the Girl Scouts have chosen to practice non-discrimination in regard to sexual orientation. Lesbians are free to participate in Girl Scout programs. Yet no government action compelled this change in policy. The Girl Scouts' leadership acted on its own.

That is why we should encourage the efforts of those individuals and groups, such as gay former Scouts, who are trying to persuade the BSA to change its membership requirements voluntarily. Their attempts at moral suasion deserve commendation and support.

While on the surface it may appear that gay citizens have won something at the New Jersey Supreme Court, since the rights of all Americans are threatened, gay people have the most to lose.