Balkinization: Making the “Lonely Homosexual”

Making the “Lonely Homosexual”

Guest Blogger

David B. Cruz

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

“Love the sinner, hate the sin.” Some on the Christian Right might claim to take that injunction to heart when it comes to us lesbian, gay, bisexual, and transgender (or LGBT) persons. They love us, but they hate what we may do. They say they won’t shun us simply for having what some of them trivializingly dub “same-sex attractions,” or for believing we have a gender identity different from what they take our sex to be. But heaven forbid we should act on any of that, marrying our partners or bringing our bodies or identity documents into better conformity with our identities. We may think they’re thus trying to condemn us to lonely, inauthentic lives. But they’d tell us that we’re mistaken, that true nature and God’s plan for us require us to eschew sexual intimacy or daily living in the forms we find natural, even if some of them may grudgingly concede that we’re oriented toward those forms. “The lonely homosexual” is the image that “reparative therapy” or other efforts to “cure” or condition gay people not to act on our orientations hold out as a deterrent to people embracing a gay identity and entering same-sex relationships. (See, for example, David B. Cruz, Controlling Desires: Sexual Orientation Conversion andthe Limits of Knowledge and Law, 72 So. Cal. L. Rev. 1297, 1366 (1999), ).

That to some extent is also the message of many actual or proposed exemptions from obligations of equal treatment expressly on the basis of sexual orientation or gender identity or motivated by fear or loathing of the prospect of law requiring equal treatment of LGBT people. This may be particularly true where marriage for same-sex couples is at issue, or even, as Doug NeJaime has persuasively argued in the California Law Review (MarriageInequality: Same-Sex Relationships, Religious Exemptions and the Production ofSexual Orientation Discrimination, 100 Cal. L. Rev. 1169 (2012)), any same-sex relationships. The law has often told lesbigay people that we ought not couple, as Mary Anne Case showed almost twenty years ago in her Virginia Law Review symposium article (Couples and Coupling in the PublicSphere: A Comment on the Legal History of Litigating for Lesbian and Gay Rights, 79 Va. L. Rev. 1643, 1644 (1993) ). Constitutional law used to see “no connection” between on one hand the kinds of same-sex sexual activityproscribed by Georgia and on the other hand “family,” in the words of Bowers v. Hardwick.

Now, though, law is on many fronts increasingly recognizing the fundamental equality of LGBT persons, our “common humanity” in the words of the Vermont Supreme Court decision in Baker v. State, 744 A.2d 864 (Vt. 1999), that led to adoption of the first “civil unions” law in the U.S. And so now, people who want to be exempted from legal obligations to treat LGBT people equally because of their religious beliefs in the immorality of what we do are the ones telling us to lead lives we might view as lonely and inauthentic, and they’re asking for legal sanction to do so. They might not have any illusions that we will simply not celebrate our unions if they refuse to photograph our ceremonies, but they would prefer that we not couple, and they will turn away business so as to avoid complicity in what they see as our sin. They claim a religious right to use their economic positions in our common markets to discriminate against us. In so doing they would inflict what the Alaska Supreme Court two decades ago recognized as a serious dignitary injury. (Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994), involved a landlord discriminating against unmarried cohabitants.)

This is not different in kind from religiously motivated (or justified) use of market power to reinforce normative views of women’s roles as wives and mothers. Courts and to a large extent legislatures rejected this view of the relationship between religious faith and market participation then, and as a general matter I hope that they will do so now. If there is a conflict between the full participation of LGBT people in our society and the full participation of those who regard us and our lives as sinful and would discriminate against us, the ones who would discriminate should not as a general matter be privileged to make us bear the costs of their discriminatory beliefs. When the coherence of sincerely held religious beliefs is deemed irrelevant as under current free exercise of religion law, there’s little to distinguish such exemptions predicated on LGBT relationship activity from ones predicated against anyone who even publicly embraces an LGBT identity, leaving equality of access only for the heterosexually identified, for the silent “lonely homosexual,” for persons willing to hide their gender identity. The religiously objecting discriminator may be complicit in our supposed sin, or pursue other market activities, but our law’s commitments to civil equality should not be undermined with such exemptions.

David B. Cruz is Professor of Law at the University of Southern California Gould School of Law. These are expressions of his views as a legal scholar and not necessarily those of any organization or institution with which he is affiliated. You can reach him by e-mail at dcruz at law.usc.edu

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