Created Equal: Why Gay Rights Matter to America
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Created Equal: Why Gay Rights Matter to America

by Michael Nava, Robert Dawidoff

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Why should Americans who are not gay care about gay rights? In Created Equal, Michael Nava and Robert Dawidoff argue that the movement for gay equality is central to the continuing defense of individual liberty in America. Beginning with an examination of the determined assault on gay issues by the religious right, the authors show how this sectarian movement to


Why should Americans who are not gay care about gay rights? In Created Equal, Michael Nava and Robert Dawidoff argue that the movement for gay equality is central to the continuing defense of individual liberty in America. Beginning with an examination of the determined assault on gay issues by the religious right, the authors show how this sectarian movement to legislate private religious morality into law undermines the purpose of American constitutional government: the protection of the individual's right to determine how best to live his or her life. The book starts from the premise that gay and lesbians are, first and foremost, American citizens, and then looks to what rights belong to every individual American citizen, arguing from the Declaration of Independence and the Constitution. Addressing their argument to the great majority of their fellow Americans, Dawidoff and Nava emphasize that what is at stake is not the fate of the gay community, but the future of constitutional principle and the rights of free individuals in American society.

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St. Martin's Press
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Created Equal

Why Gay Rights Matter to America

By Michael Nava, Robert Dawidoff

St. Martin's Press

Copyright © 1994 Michael Nava and Robert Dawidoff
All rights reserved.
ISBN: 978-1-4668-8739-8


The Ick Factor

Homosexuality, Citizenship, and the Constitution


Homosexuality disqualifies an American for citizenship. Whatever rights someone may enjoy on account of other identities, attributes, accomplishments, and positions cannot ensure either the free exercise of individual liberty or equal protection of the laws if that person is known to be lesbian or gay. American society still automatically accepts homosexuality as a sufficient cause for deprivation of normal civil rights, and American culture promotes the prejudice that sustains this second- class citizenship. For instance, in September of 1993 a Virginia judge took a child away from his mother solely because she was a lesbian. Routinely exposed to official persecution, common violence, prejudicial treatment, and denied legal recourse, gay and lesbian Americans are only whimsically protected in life, liberty, and property, let alone the myriad understandings of happiness.

Consider what amounts to a national epidemic of gay-bashing. A 1987 Justice Department study reported that gays are the "most frequent victims" of hate crimes. More telling is the fact that 73 percent of these attacks were not reported to police because, as another study concludes, 14 percent of the victims feared more harm from the police. In 1991, antigay harassment and violence increased 31 percent in five major cities, including New York, San Francisco, Chicago, Boston, and Minneapolis–St. Paul. A 1993 study found that 28 percent of lesbians and gay men surveyed were subject to anti-gay harassment or gay-bashed within a one-year period, the vast majority not reporting the incidents to authorities. Yet, despite such evidence of the sometimes lethal effects of hatred of lesbians and gay men, the anti-gay right continues to object even to classifying attacks on homosexuals as hate crimes.

Our point in this book is to expose these phenomena for what they are and to question their status. What is the argument for denying civil rights on the basis of sexual orientation? Is the "moral" claim of opponents of gay rights based on something the Constitution protects? Historically, lesbians and gay men have been intimidated into aquiesence in their oppression. One can define being in the closet as what you have to think of yourself to put up with the denial of your civil rights. But once you stop internalizing the message of inferiority conveyed by this deprivation and begin to see the second-class citizenship of lesbians and gay men for what it is, a whole spectrum of opportunity opens up. This is the source of the powerful contemporary movement for gay civil equality. This movement has replaced gay acquiesence with the demand for equal citizenship and has decisively shifted the constitutional and moral ground to lesbian and gay claims for equality under the law.

At times, the controversy surrounding the recognition of sexual orientation as a category of individual liberty makes it seem that what homosexual Americans are claiming differs in some fundamental way from what other groups of individuals have claimed in their movements for the recognition of their civil rights. Frequently, for instance, when gays talk about gay rights, heterosexuals hear talk about sex, not personal freedom. The claim that gays want "special rights" reflects the degree to which lesbians and gay men are seen as so out of the ordinary that their claims to ordinary rights seem special.

But in fact, gays want an end to their special status, their status as pariahs under the Constitution. In twenty-three states sodomy statutes criminalize certain sexual practices—specifically, oral and anal sex—that both homosexuals and heterosexuals engage in. In the 1986 decision Bowers v. Hardwick, the Supreme Court held, in effect, that these laws are valid when applied to homosexuals but not when applied to heterosexuals. It doesn't take a legal scholar to ask how these laws, which govern the most intimate behavior, can be an affront to the protected liberty interests of heterosexual people, and not also be an affront to the protected liberty of homosexual people? It was a question the Court declined, with startling animosity, to answer. Yet this refusal was itself an answer: The sexual behavior of homosexuals, the Court implied, is not constitutionally protected because they are not heterosexuals, even though the practices are identical.

Sodomy laws, however lax or intermittent their enforcement, are the foundation of discrimination, hindering family formation and preventing legalized same-sex marriage. They justify second-class citizenship and cannot be looked upon honestly without acknowledging that they still stigmatize certain citizens, making them virtual outlaws, and encourage and reinforce prejudice and violence against those citizens whether or not they break the law. Even in states without sodomy laws, the attitudes that support such laws persist, enforcing discrimination against gay and lesbian Americans in virtually every area of civil life. Seeking health care, employment, housing, access to public facilities, homosexuals encounter discrimination simply by identifying themselves as gay or lesbian.

A patriotic American who happens to be lesbian or gay can only serve in the military by hiding the existence of a private life. The recent and thwarted attempt to lift the ban against gays and lesbians in the armed forces has not changed the message that has greeted returning homosexual soldiers in every American war: You can give your life for your country, but you can't live your life in your country. The line between private and public life overlaps for everybody, not just heterosexuals. The effort to compel gays to lie about their lives and deny their own human experience is itself a deprivation of liberty.

The constitutional status of homosexuals is inextricably bound up with the intense prejudice against them. The straight majority acquiesces in the constitutional disenfranchisement of the gay minority because lesbians and gays have sex with partners of the same sex and because that goes against the majority's grain. That, rather than any truth about homosexuals, has resulted in the common belief that gay rights are about sex. This struggle is not about sex. It is about privacy, individuality, and civil equality and the right of all Americans, not just gay and lesbian Americans, to be free. And, yes, that freedom must include the freedom to express one's own desire for sexual intimacy, homosexual or heterosexual.

The routine denial of civil rights to gays and lesbians reflects a powerful prejudice, one so pervasive and so connected to everything else in society that it is treacherously hard to isolate. Even when not activated into energetic hostility, this prejudice is deeply rooted in and continually reaffirmed by the rituals of family formation, child-rearing, and gender in our culture. One of the tragic ironies in the lives of lesbians and gay men is the degree to which they inevitably assimilate much of this prejudice against them. Another is how the prejudice against homosexual thrives, even among the family and friends of gay people. (But it is also true that people who know someone who is lesbian or gay are less likely to oppose gay rights than people who claim not to know someone gay; indeed, a recent survey of American voters showed that 53 percent of respondents who know someone gay are inclined to be more favorable to gay rights than the 47 percent who think they do not know someone gay.

This bias against same-sex love has not been universal, nor is it founded on some universal truth. In our culture, because most people are heterosexual they regard the prospect of sexual relations with members of their own sex with ambivalent distaste. Prejudice arises against those who do not share this distaste. The prejudice is also fueled by the cultural tradition of encouraging same-sex bonding as a rehearsal for the eventual relations between the sexes. Boys and girls learn intimacy, comradeship, and sexuality from one another, the better to practice those things ultimately with their heterosexual partners; in this schema, homosexuality is perceived as a danger to maturation in the culture of heterosexuality. It presents an unwelcome alternative to traditional roles played by men and women in the formation of families, upon which the entire social order rests.

The decision to regard homosexuality as a species of alien behavior, and to punish it, makes a law of the majority's personal taste and habits. For most people, the "sin" of homosexuality is a question of taste. The question embarrasses people not because they can't imagine it, but because they can and do. The revulsion many men and women feel at the thought of sexual activity between people of their own sex remains a formidable obstacle on the path of gay rights. This revulsion, which we call the Ick Factor, equates distaste with immorality. It is a child's vision of life, in which the things one wants to do are natural, and the things one doesn't want to do are matters of morality: "I don't like it; it's bad." The undertone of the debate and the refusal to entertain a discussion about gay rights echoes the schoolyard din of "Ick," "Yuck," and "Gross." Teenagers apparently react this way to scenes of gay affection in movies. Of course, teenagers react that way to all but a few things. Adults are supposed to leave this stage when they assume the responsibilities and privileges of citizenship.

We believe that adults can think about issues of sexual orientation without being threatened as if they were adolescents imprisoned in the metabolism of puberty. We think that adults can learn to treat lesbians and gay men with the calm and neighborly regard democracy requires to survive. The prejudice against homosexuality is not so much religious as visceral, but neither religious nor visceral feelings justify the denial of constitutional rights in our system of government. Discrimination against gays reflects an awkward and inevitably failed attempt to isolate some people on account of whom they love, a matter that is supremely and constitutionally their own business.

Prejudice requires an elaborate social support to thrive, and the formidably articulated system of reinforcing prejudice toward homosexuality remains the bulwark of legal discrimination against gays and lesbians. What it all boils down to, however, is neither elaborate nor particularly complicated. At the core of the alleged "unnaturalness" of homosexuality is how unnatural it would feel to someone for whom it would indeed be unnatural. This distaste—understandable, though not constitutionally privileged—lurks among even those who wish gays and lesbians well and indeed would sympathize with, if not champion, their claiming of their rights. What blocks gay equality is prejudice. What fuels the movement for gay equality is the conviction that this prejudice is not constitutionally protected, but that the individual rights of homosexual Americans are.

Joined to this distaste is a corresponding desire to avoid thinking about homosexuality. Gays and lesbians have always been present in the culture, but when they have been acknowledged at all, they have been presented in stereotypic and restricted ways. More often, their presence goes unacknowledged, mirroring in the culture at large the determination of individual heterosexuals not to think about gay people. When they are forced to do so, the results have frequently been catastrophic for the lesbian or gay man concerned. Faced with homosexuality, family, religious, ethnic and racial solidarity commonly crumble; lesbian and gay people are likely to face ostracism from the very people and communities from which they had every reason to expect support. Every lesbian and gay man can recite a tale, frequently her or his own, about how a disclosure of homosexuality was met with revulsion, fury, and finally ostracism from parents, friends, teachers, clerics, employers, and the myriad others on whose support the gay person relied.

The dividing line between hetero- and homosexuality is a modern notion. Human sexuality seldom conforms to the explicit and precise demands of law and social policy. In societies as different from one another as fifth-century Greece and traditional Native American cultures there has been a place for same-sex love within and without marriage and the family. What is happening in contemporary American society is that people who prefer to be with members of their own sex no longer see this as a reason to be deprived of the rights to citizenship, family formation, and privacy.


At stake in the movement for lesbian and gay equality are established constitutional protections of a species of individual liberty, called by the courts the right of privacy, and the more familiar guarantee of equal protection of the laws. The agitation for gay civil rights confronts the nation with the question of whether these rights will be subordinated to the religious and ideological views of a minority that blames gays and lesbians for what it dislikes and fears in society. Unquestionably, their attack on gays and lesbians amounts to an attack on individual freedom itself.

At its core, gay rights are an issue of individual liberty, the very individual liberty protected by the Constitution. At times, the controversy surrounding the recognition of sexual orientation as a category of individual liberty makes it appear that what homosexual Americans want differs in some fundamental way from what other groups of individuals have claimed in their movements for the recognition of their civil rights. Civil rights movements do differ according to the category of person whose rights are being vindicated and according to the challenge posed to whatever powerful interests are served by continuing the discrimination. Whatever the differences between the individuals whose rights are at stake and whatever the institutional and intellectual consequences of the movements, the ground of the claim remains essentially the same. The traditional American doctrine that governments are instituted for the purpose of protecting the fundamental rights of individuals, and the historical process by which these rights have been extended to groups who were enslaved, oppressed, and otherwise unacknowledged at the time of the founding, are the twin pillars of the gay rights movement—as they have been of every struggle to extend the promise of individual liberty to Americans.

There is nothing new in the opposition encountered by those attempting to extend to themselves the protections of constitutional rights. The fears that each historic new claim on individual liberty stir up are to be expected and remain irrelevant when considering the justice of the claim. In the process of owning their own rights, which is essential to free society, people unfortunately tend to see these rights as exclusively theirs and to view individual liberties as a limited commodity the extension of which will deplete their own store. On the contrary, the price you must pay for the enjoyment of your own liberty is the recognition that other people, especially people with whom you may not like to identify, have an equal claim to the same liberty. America requires an allegiance to a stern principle of individual liberty. This is the reason gay rights matter to Americans generally and not just to lesbians and gay men.

The character of American liberty is not static; the perfection of liberty is the metabolism of the American body politic. To stay that progress is to alter the fundamental process of our system. That is why the opponents of gay rights, like the opponents of every other historical struggle for civil rights, have to encroach on the liberty of the majority to prevent liberty from being extended to the minority. The movement against gay equality has already trespassed on the common rights of free expression: Witness the banning of gay books, the attempt to keep references to lesbians and gay men out of school curriculums, and the withdrawal by the National Endowment for the Arts of grants awarded to gay artists. This movement will go beyond present infringements against artists, teachers, newspapers, broadcasters, and publishers. Liberty, unlike nationality, cannot be safely restricted. Restriction turns liberty into privilege, and no American's freedom is safe if individual liberty changes from a right rooted in nature to a privilege rooted in custom.


Excerpted from Created Equal by Michael Nava, Robert Dawidoff. Copyright © 1994 Michael Nava and Robert Dawidoff. Excerpted by permission of St. Martin's Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Michael Nava and Robert Dawidoff are the authors of Created Equal: Why Gay Rights Matter to America.

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