Mr. Write Now!

Just a reminder that this year's Outwrite occurs next weekend at the DC Center, 14th & U. In addition to attending you might want to volunteer (butch things like setting up and breaking down as well as the usual nelly "manning" the desks). As for myself, I will be sure to attend the writing-better-sex-scenes workshop Fade to Hot. (I hope they have live-streaming someplace nearby.)

Immutable

Regarding the Lawrence and Obergefell decisions, what is most interesting to me is the evolution in attitudes toward gay people—seeing them as a “class of persons”. (In this regard, I’d still like to take a look at the Romer v. Evans case.) The most striking evidence of this evolution, to my mind, is the use of the term “immutable” regarding same-sex orientation. This term was absent in the Lawrence decision, apparently appeared in a letter by Attorney General Eric Holder (2011?) (see Jost’s Trending Toward #Justice, p. 195) when Obama decided not to defend DOMA, and, finally appeared twice in Kennedy’s majority opinion in Obergefell. This is the culmination, perhaps, of the trend from, on the one hand, seeing gay people as heterosexuals behaving badly to, on the other hand, having the APA remove homosexuality from its list of psychological disorders.

However, welcome though such an enlightened view of homosexuality may be, it should not be the basis for decisions regarding the rights of private sexual behavior or the rights of citizens to engage in same-sex marriages. Such behavior and such rights should be based on the concept of “liberty” and not on reasons to “excuse” such (seemingly) exceptional behavior as “immutable”. Perhaps this falls into the realm of micro-bigotry, but doesn’t this represent a paternalistic majority attitude towards people who appear to be “victimized” by their genes? This all reminds me of an editorial I read in the Washington Blade back when Lawrence was hot: the writer said in effect, “Why can’t they see that I can’t help it? That I was born this way? That I don’t have a choice?” I recall being quite disgusted by this victim-oriented approach. My inner libertarian felt (and feels) that private sexual behavior should be a right regardless of one’s genes. Heterosexuals—who lack the “I-can’t-help-it” defense—have as much a right to engage in nominally homosexual behavior as gay people (as we all know, some of them do). And regarding Obergefell, if two heterosexual men or women want to marry, they have a right to do so regardless of their genetic make-up and without a need to identify with a particular class of immutably-programmed persons.   —Giogio

The trouble with the 'dignity' of same-sex marriage

At our most excellent meeting on the Lawrence v. Texas book, we spent some time talking about the supreme court marriage decision. In this article, Jonathan Turley discusses some of the potential consequences of Justice Kennedy's findings of a right to dignity in his SCOTUS opinions.

We are All the Same / Different

Afterwards, of course, it became clear to me what I wanted to say.

In Lawrence v. Texas and other gay rights cases there’s a dual track appeal to liberty and to equality. Liberty celebrates, or least permits, Difference. Equality eliminates or ignores it. We are not Other in the respect to which we are all equal. (We wouldn’t be equal in that respect otherwise.) The safer approach for petitioners has been that gay people and straight people are essentially (!?) the same and so it’s unfair for gay people to be treated differently. This has been the preferred approach because it doesn’t “frighten the horses.” It stays far away from "organs and orifices.”

This mainstreaming was perhaps the appropriate approach in Obefgefell v. Hodges, and earlier in Perry v. Schwarzenegger. But it qualifies the celebration we feel for Lawrence v. Texas. In Bowers v. Hardwick a predominantly Liberty (-tarian) approach had been tried and failed. It is certainly better to have won than to have lost, but I applaud the under-sung hero of Flagrant Conduct, Lane Lewis who said:

The Supreme Court never had the right or authority to take away my right to express love or sex through sodomy … Why are we all down on our knees thanking them for giving us something they should never have taken away?