History Unbecoming, Becoming History

Abstract

The last few decades have seen a torrent of legal commentary supporting gay equality and attacking the punishment, failure to protect, and refusal to affirm gay conduct and identity. William Eskridge, a prominent voice in this fin-de-siècle literature, now draws together and expands on his previous work in Gaylaw: Challenging the Apartheid of the Closet (1999). Though far more successful in shaping the uses of the past than in showing the way to the future, the book instructs even where it fails. It augurs a century that could well witness the end of official discrimination against gay individuals, and the relegation of "gaylaw" to American legal history. That the book works so well in its historical and doctrinal segments, but is less convincing in its final, theoretically thick segment, may suggest a technique for future gay equality appeals. Legal advocates might do well to underscore, as Eskridge does repeatedly and persuasively, how prohibitions of private, consensual sexual behavior often produce paradoxical, counterproductive results.

Keywords: homosexuality, gay equality, William Eskridge, gaylaw, discrimination