THE ARGUMENTS FOR and against civil rights for homosexuals have become so predictable — and practiced — that they now sound like the highly ritualized bickering that takes place in nearly every marriage. From religious conservatives comes this: We cannot allow gays to marry because it will destroy the institution of marriage and our families. To which gay-rights advocates respond: We are families. All we want is protection from discrimination and the right to privacy.
Gay and lesbian civil-rights advocates are right: of course gay men and lesbians should be granted the simple constitutional right of equal protection, as well as a right to privacy. They shouldn’t have to face employment discrimination or sodomy laws. But for a variety of reasons, legal arguments based on these principles often don’t win in American courts or in the court of public opinion.
That’s why a new book by Janet R. Jakobsen and Ann Pellegrini is so important. In Love the Sin: Sexual Regulation and the Limits of Religious Tolerance (New York University Press), they present a fresh way to argue for gay rights and sexual freedom. The book’s argument comes in two parts. First, the authors assert that using the liberal conceptual framework of "tolerance" to fight for gay rights (or anyone else’s rights, for that matter) is ultimately self-defeating, because it is profoundly undemocratic. The ideal of tolerance has grounded four decades of legal strategy based on the rights to privacy and equal protection. Activists have lobbied legislators — as well as the general public — with the line that gay people are no different from anyone else. Going even further, groups such as the Human Rights Campaign, the National Gay and Lesbian Task Force, the Gay, Lesbian and Straight Education Network, and the Gay and Lesbian Alliance Against Defamation have sought much-vaunted tolerance from mainstream society with the claim that sex has nothing to do with gay identity. The trouble is, if queers succeed in winning the right to privacy, they will have won nothing more than the right to keep themselves outside the public sphere. And arguing that gay identity has nothing to do with sexuality — which is the strategy employed (albeit successfully) in Romer v. Evans, in which the US Supreme Court struck down a Colorado law that banned anti-gay discrimination laws — denies gay men and lesbians their full dignity as human beings.
That’s where the second part of the argument comes in: the quest for tolerance should be traded in, the authors argue, for the claim that sex is a social good, and not just some shadowy abstract transaction that takes place behind closed doors. In other words, Jakobsen and Pellegrini argue that queers need not only the right to "be gay," but also the right to "do gay" — that the identity is meaningless without the ability to act in any number of ways that manifest that identity. And what sort of legal strategy might protect that ideal? Freedom of religion. The beauty of Jakobsen and Pellegrini’s approach is its recognition that religion (especially the various forms of American Protestantism, from Unitarian to fundamentalist) is so intertwined with American law that the battle for gay rights is inseparable from the battle for religious freedom — a "freedom," they repeatedly remind us, that also includes the freedom not to believe. Even more interesting, the template they’ve created in Love the Sin can also work for a whole range of social and civil liberties beyond those that apply strictly to gay communities.
JAKOBSEN AND PELLEGRINI’S ideas about tolerance feel counterintuitive — after all, isn’t tolerance a good thing? Well, not as they present it. The gay-rights movement — as well as the mainstream and gay media — casts itself in terms of tolerance all the time: gay people are seeking "tolerance," or heterosexual America is becoming "more tolerant" of gay people. In the authors’ view, however, this strategy and language do nothing more than reinforce the idea that gay people are a separate, distinct minority that needs the kindness and benevolence of heterosexuals to become full citizens. Basic civil rights become not a matter of due process, but an act of charity. Nowhere is this better illustrated — as they point out — than on the covers of mainstream newsmagazines. A famous 1993 Newsweek story about lesbians featured a lovely photo of two smiling women holding one another with the caption what are the limits of tolerance?, and a 1993 U.S. News & World Report story titled straight talk about gays teased the results of an "exclusive poll" about "where a concerned America draws the line." Even a sympathetic 1998 Time cover story on the murder of Matthew Shepard carried the headline the war over gays. As Jakobsen and Pellegrini note, the war on gays would have been more accurate. But then, Time was invested in making gay citizens passive bystanders in this battle, as though they had nothing to do with the situation other than to get murdered and garner sympathy.
As if that’s not bad enough, tolerance-speak does nothing to advance democratic freedom for gay and lesbian people when the courts rely on theology rather than law. The best example of how religious arguments undermine gay legal cases comes from the US Supreme Court’s decision in Bowers v. Hardwick. Here, the court explicitly invoked theology; in his concurrence, Chief Justice Warren Burger stated that "condemnation of [sodomy] is firmly rooted in Judeo-Christian moral and ethical standards" and that "to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." Indeed, such thinking is endemic in the more conservative strains of American Protestantism that have historically influenced US laws and legal thinking. But what about everyone else?
Jakobsen and Pellegrini acknowledge that religion is at the heart of much anti-gay sentiment — and that this connection must be challenged. But they don’t therefore conclude that religion should be banished from public life, as if that were possible. Rather, they contend that the gay-civil-rights movement should push for a far broader notion of religious freedom that includes the freedom not to believe in what Justice Burger termed "Judeo-Christian moral and ethical standards." In fact, one of their most salient arguments is that the very idea of "Judeo-Christian moral and ethical standards" changes all the time. For instance, the Southern Baptist Convention proclaimed in 1999 that wives should be subordinate to their husbands — surely a religious tenet that can be read into both Hebrew and Christian scriptures, but hardly one that all Jews and Christians believe. And what about all those "Judeo-Christian moral and ethical standards" that were used to justify slavery and then, only 50 years ago, segregation? True religious freedom — and true disestablishment of religion — would kick the moral and ethical underpinnings out from under many anti-gay laws, too.