Abstract

PRIVACY JURISPRUDENCE AND THE APARTHEID OF THE CLOSET, 1946-1961

WILLIAM N. ESKRIDGE, JR.

Copyright © 1997 Florida State University Law Review

The object of this Article is to explore the legal regulation of same-sex intimacy between 1946 and 1961 from the perspective of the homosexual closet. Part I traces in detail the regulatory moves made by an America seemingly determined not only to deny homosexuals any public space, but also to pry them out of their closets and erase them. Part II explores the failure of this regulatory effort, thwarted in part by doctors, prosecutors, and trial judges who worked from the premises of privacy jurisprudence and offered the mutually protective closet as a compromise: we won't ask about your sexuality, you don't tell us about it. So long as they confined their expressions and actions to a mutually protective closet, homosexuals were promised a regime of "separate but equal" toleration from liberals and legal protection from witch hunters. Just as racial apartheid was an unstable regime, however, so too was the apartheid of the closet, as is explored in Part III. From conventional society's point of view, there were always those who viewed the closet as threatening, containing predatory enemies. From the homophile point of view, the closet was always a confinement—really a badge of inferiority—as well as a refuge, and straight society's tendency to pry open the closet door left the homosexual with the worst of both worlds: neither privacy nor integrity. The privacy jurisprudence of the 1950s gave homosexuals a security that they soon questioned, and extracted from them a dishonesty that became increasingly intolerable. The success of free speech jurisprudence in the 1950s was also destabilizing to the mutually protective closet. Developed in response to the state's effort to suppress political and civil rights dissidents (namely, Communists and African-Americans), free speech jurisprudence became a means by which sexual and gender dissidents (such as homosexuals and cross-dressers) could claim public space for themselves. The American free speech tradition then being created was in favor of robust debate, and in the sexual sphere that debate helped create a homosexual "minority." Homophile publications, from the Kinsey reports to lesbian pulp romances, were the first evidence many gay people had that they were not accidental monsters. The article's account of gay-friendly privacy discourse reveals the familiar problem with privacy as a Millian concept, namely, the lack of criteria by which to distinguish the "private" from the "public," or acts that only affect the actor from those with third-party effects. The Article also adds a more profound problem, from a gay point of view, namely, privacy's contribution to an unstable culture of the closet. By channeling energy into privacy rights, homophiles slighted rights of equal citizenship and public expression that are also important. The right of privacy is the hermaphroditic parent of "don't ask, don't tell."

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