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Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
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Abbe Gluck abbe.gluck at yale.edu
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Andrew Koppelman akoppelman at law.northwestern.edu
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Sanford Levinson slevinson at law.utexas.edu
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Jason Mazzone mazzonej at illinois.edu
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John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The majority of voters in November’s
election voted in favor for two kinds of decency: one a fiscal decency by
asking the well-off to shoulder a larger proportion of the tax burden, and the
other a kind of sexual decency by sanctioning the rights of same-sex couples to
the blessings and benefits of civil marriage.
But a politics of decency can be tricky business. Just as the lame-duck
Congress debated how we might avoid the self-imposed danger of the looming
“fiscal cliff,” another kind of danger has emerged on the front pages of our
daily papers. The illustrious career of CIA Director and retired
four-star Army General David Petraeus’ dissolved in disgrace when it was
revealed that he had had an “extra-marital” affair. Many found it deeply
troubling that Petraeus’ career ended in humiliation on account of adultery,
not the alleged war crimes and crimes against humanity committed by the U.S. government in the Petraeus-led military
campaigns in Afghanistan and
Iraq,
or the expansion of the CIA’s Predator drone fleet. The Center for
Constitutional Rights and the ACLU have filed a lawsuit charging senior CIA and
military officials, including Petraeus, with violating the Constitution and
international law when they authorized and directed drone strikes that resulted
in these deaths as part of a broader practice of extrajudicial “targeted killing”
by the United States. But adultery, not these global acts of illegal
violence and murder, pushed General Petraeus out of public service.
Then comes Elmo. Kevin Clash, the puppeteer behind the beloved Sesame
Workshop character, resigned from the job he had held for 28 years after
allegations emerged that he had had sex with 15 and 16 year old boys. It
is likely that Clash stepped down in response to pressure from Sesame Workshop;
it felt that it could no longer tolerate the association of its corporate brand
with sexuality, particularly homosexuality, illegal or otherwise.
In important respects Petraeus and Clash are the most recent objects of what
some call a “sex panic.” Both of these cases illustrate something
important and very troubling about how sex and sex panics continue to be
effective means to distract the public from other threats to security, while
providing the justification for greater modes of surveillance and weaker
protections for civil liberties and freedoms.
The General may be gone from public service, but the policies he crafted
remain. Not for a second did the attention that swirled around Petraeus’
resignation take up the legacy of state-sponsored violence characterized by his
tenure in the military and at the helm of the CIA. Rather, personal
hubris, sexual and otherwise, was his supposed crime. It was adultery
that brought down Petraeus in late 2012, but until recently gay men and
lesbians were vulnerable to this kind of shaming from public office on the
theory that illegal and scandalous behavior could render you susceptible to
blackmail, thus jeopardizing national security. What a moment this is
that on the heels of having won enormous victories in electing openly gay
candidates for national office such as Tammy Baldwin and securing marriage
rights for same sex couples in four more states, marriage remains an
institution whose mores, morals, and social standing can bring down someone as
powerful as David Petraeus when he violates them. It seems that we live
in a time when it’s safer to be gay than to be an adulterer.
The controversy around the Elmo sex scandal pushes the point even further: it’s
safer to be gay than an adulterer so long as “being gay” means being a
respectable husband or wife. When the sex part of homosexuality
threatens to break out into the open or break away from the domestic family
you’ll find you’re out there on your own, vilified for having acted
indecently. We don’t know yet whether the young men Clash is accused of
having sex with were underage at the time they began a sexual relationship with
him, the legal process will get to the bottom it. But I am confident that
Clash would have been driven out of his role as Elmo even if all that was
proven was that he liked sex with men whom he found on the internet who were
thirty years younger than he was. This kind of “sexual preference”
might not be illegal but it would likely have triggered a sex panic
nonetheless. In an ironic sort of way, sex and sexuality have been
collateral victims of recent advances in the rights of gay people to the extent
that their claims have been framed as a right to family, not a right to sexual
freedom. Whether by design or by accident, some of the advocates of
marriage equality who have defended and celebrated the sanctity, dignity and
special-ness of marriage have fortified the rather conservative notion that sex
outside of marriage (whether it be adultery or hook ups with people you find
out the internet) is somehow indecent and worthy of reproach.
Thomas Friedman famously observed that “9/11 made us stupid” – well, sex, it
seems, makes us even stupider. At precisely the moment when gay people’s
right to marry seems to be reaching a positive tipping point, sexuality is
being driven back into the closet as something shameful and incompatible with
honor (in the case of Petraeus) or decency (as in the case of Clash).
How did we get to this curious place, a place with a politics that
would be almost unimaginable to the sexual freedom fighters of Stonewall?
Once here, should lesbian and gay-rights activists see their cause to include
questioning the ongoing utility of sexual panics? Who, if not us, will
come to sex’s defense each time, in the name of decency and security, it is
used as a cudgel to justify public and private forms of vigilantism?
Katherine Franke is Isidor and Seville Sulzbacher Professor of Law and Director, Center for Gender &
Sexuality Law at Columbia Law School You can reach her by email at kfranke at law.columbia.edu