A Review Essay: Limits of Gaylaw
Constitutional Commentary, Vol. 17, No. 3, 2000
48 Pages Posted: 21 Aug 2016
Date Written: 2000
Part of Professor William Eskridge's mission in Gaylaw (Gaylaw: Challenging the Apartheid of the Closet by William N. Eskridge, Jr., Harvard University Press, 1999) is to describe the historical development of the complex legal and, to some extent the cultural, landscape for gays. (pp. 17-137) Though not much of Eskridge's presentation of the history of American law's treatment of gays draws from original research, its synthesis of the available secondary sources is a useful contribution and will likely become a staple of classes treating the subject.
The larger part of Gaylaw is the book's greatest challenge and the place where Gaylaw will draw the most fire. Eskridge offers some fairly standard but nonetheless powerfully-reasoned arguments that the right of privacy should be applied to protect individuals from criminal sanction for consensual sodomy. (pp. 152-73) He makes an intriguing but incomplete case that state criminal prohibitions on sodomy run afoul of the First Amendment. (pp. 176-202) On Eskridge's view, the Equal Protection Clause should invalidate a wide range of laws discriminating against homosexuals. (pp. 207-31) Finally, he urges that the similarities between religion and homosexuality should lead to greater constitutional solicitude for the latter. (pp. 296-302)
Gaylaw is an admirable attempt to liberate us--gay and straight--from what Eskridge calls in the book's subtitle, “The Apartheid of the Closet.” Yet it turns out that in subtle and unintentional ways Gaylaw manages to liberate from a closet what it then confines to a prison. It is an “identity prison”, to borrow Eskridge's useful phrase, (p. 7) one that has the virtue of being roomier than the old closet but the vice of being another confinement.
Nevertheless, Gaylaw is a clear and soberly written argument, a powerful accomplishment that both reflects and reinforces what have become some of the principal approaches to legal scholarship in the area. It manages to connect contemporary discrimination against gays with the extensive historical record of such discrimination. And it envisions a moral dimension to gay equality that is both provocative and refreshing. For those reasons alone, it cannot be ignored.
Keywords: book review, William Eskridge, homosexuals – legal history, gay rights, Constitution, gays – discrimination
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