So, like, how do you guys, you know, do it?

There is a fetishization of difference that society engages in when it comes to queers. Stereotyping is just the tip of the iceberg. Underneath the faux-ironic, soul-numbing, pop-reactionary images of gay men being good at fashion and lesbians being good at sports lies the belief that Those People Are Just Different.

That iceberg ripped a new one in the now-ailing ship of Californian constitutional law just this month (hmm - has this metaphor gone too far?). October 5th saw the denial at the appellate court level of the right of same-sex couples to marry (or, to reframe, the right of all Californians to marry any person they choose, regardless of gender).

The court did not even see fit to subject the discriminatory state of affairs to any heightened scrutiny (which would require taking the government to task on its reasons for the law). The court would have had to do this if it had found marriage in this case to be a fundamental right. However, it did not.

Part of the reason the California Appellate Court gave for not considering marriage a fundamental right for same-sex couples is that marriage has always been between opposite sex couples:

Considering the importance of judicial restraint in this area, we must agree with appellants that, carefully described, the right at issue in these cases is the right to same-sex marriage, not simply marriage.

First of all, this is not true (there have been marriages between same-sex couples before). Second of all, it borders on saying that since a right has been denied to certain people for so long, those people never had that right (a sort of relinquishment of rights by adverse possession). Finally, it essentializes the difference between heterosexuals and homosexuals to the point that the same rights are somehow of a completely different nature when a homosexual asserts them (and are thus not fundamental). Under this analysis, "same-sex marriage" is sui generis, and so not "fundamental" in the right way.

The problem is that this sort of reasoning was already disavowed by the U.S. Supreme Court in Lawrence v. Texas? There are no such things as "homosexual rights" (assuming one buys into rights discourse, of course).

The Lawrence Court dismissed the ridiculously narrow definition of the right in Bowers v. Hardwick (which held that Georgia's sodomy statute was constitutional):

[R]espondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.

Contrast Justice Stevens' characterization of the issue in Bowers in his dissent (which the Court eventually adopted as part of its reasoning in Lawrence):

[M]ay a State totally prohibit [sodomy] by means of a neutral law applying without exception to all persons subject to its jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals?

To rephrase, Stevens recognized that a court must ask:

1) Is there a fundamental right generally (in that case, to consensual sodomy, in this case to marry)

2) Is there some reason inherent to the nature of the right that negates its fundamental nature when exercised in a particular way by a particular group? (this is not the same as whether the state has a compelling interest in restricting the right, despite its fundamental nature - that question comes later)

This "same-sex rights" shit is getting same-sex old.

This reminds me of a great quote in Kate Bornstein's My Gender Workbook from a transwoman whose femininity was challenged because she was smoking a "man's pipe". Her response:

I am a woman. This is my pipe. It is a woman's pipe.

Just one question today:

1) Are there contexts where when a queer person does something it's a queer thing and when a straight person does the same thing it's a straight thing?

Liberation vs. Liberalization

Having heard (and uttered the obligatory cry of dismay at so hearing) that Hersheys recently acquired Dagoba, I've been thinking about the relationship between pleasure and commercialism. It's not such a great leap from thinking about chocolate to thinking about sex (it's also not a great leap from thinking about sex to thinking about chocolate, by the way).

I recently read Mark Greif's article, "Afternoon of the Sex Children" that was originally published in n+1, issue 4 and excerpted in November's Harpers Magazine (which is not yet up on their website). From the excerpt, I gather that Greif is explaining the simultaneous social phenomena of sexualization of youthfulness and the stigma of adults actually having sex with youths. While doing so he makes an interesting distinction between liberation and liberalization:

Liberation implies becoming free to do what you ahve already been doing or have meant to do. But what passes as liberation has often become mere liberalization. Liberalization makes for a free traffic in goods formerly regulated, creating markets in what you already possess for free. It has a way of making your possessions no longer native to you at the very moment that they're freed for your enjoyment. Ultimately, you no longer know how to possess them, correctly, unless you are following new rules.

* * *

[Sexual] liberation went astray because another force turned out to have a use for the idea that sex is the bearer of the richest experiences - commerce. Sex was initially difficult to liberate against the rival norms that had structured it for centuries: priority of the family, religious prohibitions, restrictions of biology. But once liberation reached a point of adequate success, commerce discovered it had a new means of entry into private life and threw its weight behind the new values. What in fact was occuring was liberalization by commercial forces as they entered to expand and coordinate the new field of exchange. Opposition to this is supposed to be not only old-fashioned but also joyless and puritanical - in fact, ugly.

When I stroll down the Castro (which is increasingly rarely, by the way), I notice the commerce, first of all. It's almost become cliche to compare the street to a mall. Large retailers are moving in and replacing independent stores. There is a notable paucity of accessible public space. People are on the move, not spending time on the streets so much as moving to the next bubble of privacy, and many of them are clearly tourists. Any lingering notions that community should be free are safely confined to outbursts of sentimentality about the Castro theatre, as if saving one building can erase the fait accompli of commercialisation. I'm guilty of this behavior myself. So what is to be done?

This coming week I shall be working with some young queers who, I hear, share my concern about the lack of public queer space. I've got my hopes up, but the insistent voice in me mutters danger and hums despair. My unclouded optimism has been killed, and I blame San Francisco - the promised land that failed to deliver. That's the problem with the transcendental visions of the diaspora queer - they're almost always disappointed.

Discussion Questions

1) What are the differences between liberation and liberalization? Has sexual liberation failed, or has it merely stalled?

2) It's pretty clear to me that sex sells, and that this is not the ideal state of affairs, because it requires the creation of a false scarcity of sexual pleasure. But what about selling sex? How does prostitution fit into all this?

Are You Now Or Have You Ever Been A Homosexual

In doing my research for my Legal History paper, I found this great exchange in a case involving a German national petitioning to naturalize. The cite is Nemetz v. INS, 647 F.2d 432, 433-434 (4th Cir. 1981).

In 1976, Nemetz petitioned for naturalization. Although it is unclear from the record exactly how or when the Immigration and Naturalization Service (hereafter, the "Service") first became aware of Nemetz's homosexuality, at the Service hearings on his petition, he was questioned extensively about his homosexual activity:

Q. Mr. Nemetz, are you now or have you ever been a homosexual?
A. I'm now.
Q. You are now?
A. Yes.
Q. But you have and you so testified at this time dated women in Germany before you came to the United States?
A. Yes.
Q. Do you have sexual relations with your roommate ?
A. Well, we have a relationship. I like him.
Q. Have you ever had sexual relationships with him?
A. What do you mean sexual relationships?
Q. Intimate relationships. Getting into the sexual aspects.
Q. Either yes or no.
A. Yes.
Q. Mr. Nemetz, have you ever committed a homosexual act in public?
A. No.
Q. Have you ever recruited for any type of sexual activities in public?
A. No.
Q. Or everything you state that you have done as far as your private life is concerned, sexual life has been private. Is that correct, sir?
A. Yes.
Q. And to this date you still are (a) practicing homosexual. Is that correct, sir?
A. Yes.
Q. Ok. Have you ever been arrested or been questioned by the police for any of these activities?
A. No.
Q. Any complaints made against you concerning these activities?
A. No.
Q. So what you're saying is that your relationship in the United States has been with one individual. Is that correct?
A. Yes.
Q. And no others?
A. That's right. Yeah.
Q. And in your lifetime that is the only individual you've had a relationship of this type with?
A. Yes.
Q. Ok, Mr. Nemetz. In the last six years have you had sexual relations with (your roommate)?
A. Yes.
Q. Alright(sic). These sexual relations, were they oral type sexual relations?
A. No. Not particularly.
Q. Have there been any in the last six years?
A. I guess.
Q. Yes or no?
Mr. Murray: Can I ask a question?
Q. Yes.
Mr. Murray: Why is that particular question asked? I mean he has admitted to sexual relations.
Q. Well, ah, sex relations can be interpreted different ways and I don't want to get into, ah a linguistic battle of what sexual relations are at this point. There is (sic) either been penetration at one point [**4] or another, for sexual relations or sex relations at some point can be petting or kissing or things like that and inorder (sic) to further determine and interprete (sic) what exactly is meant by sexual relations, I'd like it specifically on the record.
Mr. Murray: But what I'd like to know is why this particular question when he has admitted to sex relations. What would be what's (sic) relevance to the proceeding?
Q. The relevance to the proceeding is a practicing homosexual whether it is would have a bearing on naturalization or not would be dependent on ah the type of activities that have ah gone that have gone before the activities that have gone with Mr. Nemetz and his roommate would have a bearing on depending on what the state law is concerning these activities.

My favorite part (besides the first question, of course), is the clearly uncomfortable line of questioning that begins with "These sexual relations, were they oral type sexual relations?"

They really know how to get into a man's head, those INS interrogators.

Personally, I've often wanted to go on a date type situation to a nice dinner type meal occasion, maybe some wine type beverage, then a film type situation, before being invited in for a coffee type situation, which of course I know typically leads to oral type sexual relations, and possible other types of sexual relations as well.

Come out and stay out

I've been working for the past few weeks (okay, two) on research for a paper I'm writing on the exclusion of LGB people (or, as Congress says, "homosexuals") from the U.S. through immigration laws. These exclusions were in place until 1990, when Congress changed the immigration law (removing the "psychopathic personality" section) and even arguably until 2003, when Lawrence v. Texas confirmed that sodomy laws were unconstitutional.

It's been pretty interesting. I've been reading (sometimes re-reading) books and articles on gay history. John D'Emilio has prose as crisp and tart as a cider apple.

Fluent in Fag Loves Footnotes

I came across this gem while reading William Eskridge Jr.'s Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981, 25 Hofstra L. Rev. 817. It's a footnote from a section discussion the regulation of gay pornography. For those with access to the article, it's footnote 323.

I am using the term pornography to mean erotic pictures or pictures-and-words, but not words alone. Also note that I advert only to gay (male) pornography. There was little photographic pornography aimed at lesbians; most images of two women making love were in products marketed for heterosexuals, as woman-woman lovemaking is highly erotic to many straight men.

Apparently the heterosexual men, they like the woman-woman lovemaking.

I guess there's just something about the requirements of propriety in law review articles that precludes him saying something like:

By gay porn, I mean pictures of men. There was no such thing as lesbian porn. Pictures of women getting it on were for straight men, who found such images majorly hot.

Gripe 1: Eskridge says that the woman-woman porn was for "heterosexuals", when what he really means is "heterosexual men". Are women not heterosexuals? Somehow I don't think Eskridge was giving an unspoken nod to the "compulsory heterosexuality" theory. My guess: he's just not that into including women in this analysis. I am guilty of the same sort of thing, on occasion, but that doesn't mean I can't gripe about it when others do it.

Gripe 2: Eskridge's reference to "images of two women making love" really stretches euphemistic license. People in porn are sometimes faking it, sometimes having sex, but "making love"? On the other hand, maybe his editors made him do it. Or perhaps he was just poking a little fun at the prudishness of law review culture.

Discussion questions:
1) What's the world of porn like today? To what degree do audiences expect to see themselves in porn? Is porn still "targetted"? Is that "targetting" still effective? Can straight men consume and enjoy porn meant for lesbians, can straight women enjoy porn meant for gay men? Are bisexuals the perfect audience? Can/do trans audiences enjoy porn featuring trans performers? Can gay men and lesbians enjoy straight porn? Do androids enjoy porn with electric sheep?

2) Do those "straight guys" who jack off in "audition videos" for male cameramen/directors really think that this is going to launch their straight porn career? Given that these "audition" tapes are really going to be aimed at the gay male market and there is likely no straight porn film in the making, have these men been defrauded? Do they have a contractual remedy?

Won't Somebody Think Of The Children!?!

I have only questions for this post.

1) To what degree is the current attention being given to the Mark Foley affair a function of popular homophobia and lack of any reasonable discussion of teenage sexuality and autonomy?

2) What does it say about the Republican party that it will adopt rampantly anti-gay policy positions while retaining open and not-so-openly gay people in the party? What does it say about those gay people?