That’s right, today is the five-year anniversary of the landmark Lawrence v. Texas decision, which declared sodomy laws in the United States unconstitutional. I remember when the decision came down – I was eighteen at the time, and several of my gay male friends had AIM away messages up that said “CELEBRATING.”
Now that I’m a crusty old law student, I’ve studied the case, and I have two major thoughts about it. One, as usual, America is too damned slow on the uptake – before this case, if you plotted the countries with sodomy laws still existing on a map, you’d see countries Africa, the Middle East, the Caribbean, Asia… and us. Now I’m certainly not suggesting that developing nations should be behind the US, or that we’re somehow morally superior – quite the opposite. Those who think that we’re Nation Numero Uno, ready to depart on a civilising mission to “fix” the rest of the world – uh. Uh. Uhhhhh… No. We criticise the human rights records of developing nations while at the same time being by far the worst nation in the “Western world” on human rights and international law. If you aren’t familiar with this stuff, take a look at the major international human rights treaties and see how many the US has signed. You’d be surprised. So no, I don’t think it’s at all strange that it took us this long to strike down sodomy laws, more than twenty years after the European Court of Human Rights said that sodomy laws violate an individual’s right to privacy.
My second thought, however, is optimistic. Justice Kennedy clearly made quite an effort to avoid talking about level of scrutiny or fundamental rights or suspect class or really anything that would give lower courts a clear cue. But what did he do? Well, he cited international authority with approval for the first time in a majority opinion, for one. He also, despite the dicta that this wasn’t to affect laws on marriage, opened up a can of worms. Maybe LGBT folks don’t explicitly form a suspect class yet. Maybe they don’t fall explicitly within the fundamental right to marriage that straight people most certainly enjoy. But there’s an opportunity. We can say that the Court did take a step in that direction, and if LGBT people have the same rights to conduct their intimate affairs in their bedroom that straight people do, then it’s not much of a leap to say that they also have the same intimate sorts of relationships that straight people do, which often culminate (for them) in marriage. By being rather vague in terms of legal principles but at the same time making it clear that he was considering both practices and identity of LGBT people in that case, I think Kennedy did something revolutionary, something even (gasp!) rather European – he acknowledged, in some small way, a positive right to autonomy, the right to live one’s life and conduct one’s intimate affairs as the individual sees fit. By putting these two aspects together he acknowledged that queer people should be protected both in terms of what they do and who they are – that the two are inextricably linked. He could have simply focused on practices, on sodomy itself, but he didn’t. He made it bigger than that. It’s about the real people, in real relationships, who were being hurt by an arcane, stigmatising law. So good job, JK. I don’t always agree with you, but I think you took a leap of courage this time.
To celebrate the International Day Against Homophobia, instead of doing a post I offer you two items of possible interest. The first is an article that ran today in Le Monde, which I have translated for you. The original text in French appears here. Keep in mind that I am not a translator by profession, and I did this quickly without editing. It should be accurate, but if it reads a little stilted it’s because I only translated directly, instead of doing a “smoothing over” after the fact. The article is an interview with Daniel Borillo, and it caught my eye because I used an essay of Borillo’s on gay parenting in France for my seminar paper. Fellow history enthusiasts may find it especially interesting. The second item is the text of my high school graduation speech, delivered in 2003 in Raleigh, North Carolina.
Interview with Daniel Borillo: “The battle against homophobia is worldwide”
Since 2005, the International Day Against Homophobia has taken place each year, on the 17th of May. One of the objectives of this day is the decriminalization of homosexuality throughout the world. What regions are currently the most affected by the legal prohibition of homosexual practices?
There are, in the world, more countries that impose sanctions on homosexuality than countries that celebrate the International Day Against Homophobia! Homosexuality is penalized today, often in a very brutal fashion, in more than eighty countries.
In most of them, Islam is the official religion, to which we add the secular states like Tunisia, and the Islamist regimes like the Sudan. Homosexuality is a crime punishable by the death penalty in Saudi Arabia, in Mauritania, and in Nigeria. Homosexuals risk a life sentence in Uganda, in India, and in Singapore.
The Qu’ran isn’t more homophobic than the Bible, but in the countries of the Christian tradition, the action of the secular movements has allowed a weakening of religious power.
What is unfortunate is that, in these countries, the initiatives of civil society are immediately censured. In 2004, a very important website of information on the prevention of AIDS, gaymiddleeast.com, was thusly blocked by the Saudi authorities, which has had dramatic consequences for the diffusion of the epidemic. In this country the Islamists, who have pressured the governments to a virulent homophobia, are greatly responsible, but the society as a whole also participates in persecution in rejecting homosexuals.
You have shown, in a critical anthology that pulls together the writings of more than fifty authors, that the West has itself for a long time considered homosexuality a sin, seen as a crime. What were the successive faces of this stigmatisation?
In Europe, the victory of Christianity constituted the first step in a long persecution of homosexuals. In 313, under the Emperor Constantine, Christianity became a state religion, and in 390, under the Emperor Theodoseus I, the punishment for sodomy was death by burning. Homosexuals were then persecuted as sodomites, and in a systematic manner from the end of the thirteenth century.
These peresecutions, which culminated in the setting in motion of a veritable Inquisition at the European level, also targeted Jews and witches, but homosexuals have long had the sad privilege of being pursued as sinners, as sick persons and as criminals. After the Inquisition, the persecution of homosexuals during the Nazi regime constitutes the most tragic chapter in the history of homophobia. The Central Office of the Reich for Combatting Homosexuality, created by Himmler, took part from the beginning in the arrest, imprisonment, deportation, and death of tens of thousands of homosexuals.
Finally, until the end of the 1970s, homosexuality was, in one way or the other, punished in all the European countries: legal sanctions, police repression, jurisprudential practices.
It wasn’t until the decision of the European Court in Strasbourg, in 1981, that the repression of homosexuality among consenting adults was judged contrary to the European Convention on Human Rights.
These persecutions contrast with the practices of antiquity, which tolerated, even valued, certain forms of homosexuality. How do you explain that these cultures did not recognize what we today call homophobia?
Greco-roman antiquity basked in a climate of tolerance with regard to homoeroticism, but homosexual practices were very coded. The sole form of accepted homosexuality was pederasty, that is to say relations initiated between a young man who was to have public responsibilities and an aristocratic adult man. This was due to the fact that this profoundly misogynistic society strongly condemned the assumption by any free man – Roman or Greek – of the passive role, that is to say his behaving sexually like a woman. But this didn’t apply to a young man – who was in a relationship of apprenticeship to masculinity – or a slave – who was in a socially inferior situation.
It is then the active-passive dichotomy, and not the homosexual-heterosexual one, that determined the sexual morality of the ancients. In France, how was the calling into question of Christian heritage accomplished?
This was accomplished thanks to the veritable political and cultural revolution that the liberal thought of the eighteenth century, which pronounced the distinction between private and public life and the protection of the individual against the interference of political power, created. For the liberal philosophers such as Condorcet and Bentham, an act that didn’t cause any harm to others, such as homosexuality between consenting adults, could be morally condemnable but didn’t merit any penal or civil sanction. Later, the Industrial Revolution and the migration of populations into the cities permitted homosexuals to distance themselves from the rigid social structures of the countryside. Free from the familial constraints of rural life, homosexuals could assume their sexuality more freely.
Did the AIDS epidemic, starting in the 1980s, play a role in the growing consciousness of the discrimination experienced by homosexuals?
We often say that the AIDS virus is “intelligent” because of its manner of transmission, which makes fighting it medically very difficult. I like to say that the virus had “intelligence” to appear at the moment when the gay and lesbian movement took a structure. Until then, all epidemics on this scale were handled by classic mechanisms of imprisonment and exclusion of the sick. What is extraordinary with AIDS, is that the epidemic was handled, in the West, in a liberal and democratic manner, thanks to the individual awareness of responsibility among the infected and the partnership between associations and public powers.
This wasn’t obvious: in the case of AIDS, homosexual practices became dangerous and society could have taken on an attitude of growing hostility. But the existence of an organized gay movement showed that exclusion, instability, and isolation aggravated both the medical situation of the sick and the social problems that confronted this community. In spite of its dramatic dimension, AIDS did more for equality than all the previous mobilisations.
It is at that moment that society became conscious of the fact that a man who had lived for years with his sick companion wouldn’t be recognized by the hospital authorities and that he would be expelled the next day from their communal housing. It is thus due to the political mobilization around AIDS that one can enter into a PACS.
Has Europe in its many forms (the Brussels Commission, the European Parliament, the Council of Europe, the European Court at Strasbourg) participated in this movement for decriminalization of homosexuality, followed by the penalization of homophobia?
The Council of European and the European Parliament were pioneers in the fight for equality. These supranational bodies allowed for a change in perspective: in twenty years, Europe has replaced criminalization of homosexuality with penalization of homophobia. I often cite Sartre, who was asked about the Jewish question and responded, “There is no Jewish question; the real question is anti-Semitism.” For homosexuality, it is the same thing: the question, today, in Europe, is no longer homosexuality, but homophobia. Homosexuality is no longer a sin, a mental illness, or a crime. What is a problem for democracy is intolerance towards homosexuality.
What are today, in your eyes, the discriminations that persist in France with regard to homosexuals?
France lacks a real policy on the prevention of homophobia in the schools and in the education of police and judges, but the discrimination principle is written into the law: it is the refusal of gay parenting and marriage between couples of the same sex. For me, this demand doesn’t deny the difference between the sexes: it is freedom and equality, not masculine and feminine, that constitute the democratic values. I just read a UNICEF report that affirms that twenty million children in the world today are orphans: I said to myself that what is urgent is to welcome these children into families, and not to debate the difference between the sexes, as the opponents of equality do.
In the past decade, several European countries such as Belgium, Spain, and the Netherlands have opened marriage and filiation to couples of the same sex. Do you believe that this evolution is “inevitable,” using Luc Ferry’s word?
History doesn’t make itself: it is made, day after day, by social movements. If the gay and lesbian movement continues its struggle, yes, this change in legislation will be inevitable. France will join with Spain, where marriage is authorized and where homosexuality has become commonplace, this is the ideal situation.
But one must distrust the rhetoric of the mobilizers, because the gains are always fragile: the examples of yesterday’s Poland of the Kaczynski brothers or of Italy under Berlusconi today show that steps backward are always possible.
Raleigh Charter High School Graduation Speech, May 2003
Over spring break this year, I went to Key West to visit my family. One day I was riding my aunt’s spare bike to the Eckerd’s to get some film developed, and while I was unlocking the bike from a rack in front of the store, a woman walked by me. She looked fairly old, her face was very wrinkled, and she was wearing overalls and ratty sneakers. When she passed, she said “hello, sister.” Immediately, my guard went up. Was the woman homeless? Or perhaps mentally handicapped? Thinking I had misheard, I looked up and asked, “sorry?” She stopped and said, “I said hello, sister. You’re my sister, because I believe we are all brothers and sisters in Christ.” She paused, and unsure of what to do, I just looked at her. “You may not believe it, but that’s what I believe,” she said. I still couldn’t think of the appropriate response, and she continued on her way. As I rode back to my aunt’s condominium, I thought about the encounter with some guilt. I do, after all, consider myself a Christian in some respects, and I like the thought that we are all brothers and sisters. It demands a certain amount of love and respect for one another that seems lacking in the world today. However, I couldn’t just show my agreement, smile, and move on. I had to start churning out assumptions. Is she homeless? Is she insane? Am I in danger? This sort of experience is troubling, and I’m not the only one who has done something of the kind.
I have no doubt that the students at our school are kind and respectful, and that many would go out of their way to help someone in need. However, there is a mindset that many of us carry around that says, whether we admit it or not, that those who are different need to be “fixed” in some way. We are not comfortable around them, and we may not feel safe. It is easier to just be politically correct and stand for broad concepts like being against racism, sexism, and homophobia, than it is to actually accept and affirm someone whose thoughts or actions differ from our own.
College will be a place where intellectual and other kinds of diversity are celebrated, and where thought that differs from the norm is encouraged. However, it can be easy not to question the little things we do that reject other people, and to lock ourselves into an “it’s okay, my neighbor did it too” mentality. This is why it’s best to challenge yourself not just in the classroom, but throughout all parts of your life. Are you unconsciously more likely to associate with someone or agree with them because of factors beyond their control? Do you do unkind things without thinking about them, just because they seem acceptable? Are you unlikely to go against the grain and really think when someone asks you a question? Do you challenge yourself to answer truthfully no matter what other people think?
The other day, I was eating lunch with Ms. Solomon when Agnes came in for help with a speech on character for the NHS induction. Ms. Solomon gave her a piece of advice that really resounded with me. Those who have character are not always the most recognized people, or the ones you hear about. They aren’t necessarily the people who wind up in the statistics. People with character are those who only one person, or perhaps no one at all might recognize, but they are those who feel good about themselves because they have done the right thing, whether or not it was the easiest.
Last month, Caitlyn Meuse, a 16-year-old student in Massachusetts, was hit in the head with a baseball bat after participating in her school’s Day of Silence.
A few months ago, two gay men were murdered in their home by a man who also bombed an abortion clinic and a synagogue. His sentence could be as little as 23 years in prison.
Between 1994 and 1995, 1,459 hate crimes were committed. 95% of the perpetrators acted alone; obviously the hate they felt is something that pervades our society, not just isolated groups. Most of the perpetrators did not feel they did anything wrong.
9,271 hate crimes were committed in this country in 2001 alone. 4,367 were committed on the basis of race, 2,098 on the basis of ethnicity, 1,828 on the basis of religion, 1,393 on the basis of sexual orientation, and 35 because of bias against a person with a disability.
In June 2001 a 32-year-old member of a white supremacist group punched a 16-year-old black teenager in the mouth after seeing him with a white young woman, saying that he should only associate with black women.
You probably just said in your head about at least one of these cases, “that’s wrong” or, “that can’t be possible in this day and age.” Yet, despite how much statistics and stories like these affect us, it is the people who encourage and cultivate diversity that fail to get the most recognition, not unlike those with general good character. It takes courage to defeat the internal assumptions about other people that are founded on culture, upbringing, and history – not on logic. These comments, gestures, and attitudes towards other human beings are what keeps the culture that breeds stereotypes self-sustaining. Yet if you can think about these assumptions and consciously try not to submit to them, you will be all the better for it.
If you think about it, you will probably be able to recall an incident in which someone made an assumption about you based on some extenuating factor. Perhaps someone laughed at your southern accent once, or assumed you wouldn’t want to join in a basketball game because of your height. Everyone makes assumptions, and everyone is the victim of them. However, I believe this class can do something to improve this troubling social climate. It doesn’t take much to change an attitude, or think before you say something damaging to another person. If just the few hundred of us in this room try to challenge one assumption tomorrow, to give one smile to a stranger or to carefully consider one person’s viewpoint, I believe we will be making a big step towards improvement.
If you want to make a difference after graduating here, and be a citizen of a truly better world, be just a little more aware of who’s around you. Think before speaking, and challenge your assumptions. You may not feel like any big hero, but you will be able to live with a clear conscience and a knowledge that you’ve done what was right.