Gay Rights, Identity and Ideology

Nan D. Hunter

 

The subject of this paper is a constitutional mess.  It is the mess made by the courts of the question of how speech claims and equality claims relate to each other in those situations in which expression of the identity in and of itself is understood as also expressive of a message.  The problem was greatly worsened in 2000 by the Supreme Court’s decision in Boy Scouts of America v. Dale,[1] because of the Court’s holding that a gay man’s mere presence violated the Scouts’ right of expressive association, despite a rather loose analysis of what the BSA actually seeks to express on the issue of homosexuality. 

 

The Dale decision illustrates a catch-22 that has plagued lesbian and gay rights cases for several decades. On the one hand, because lesbian and gay rights cases center on an identity which is not visible, the identity must be literally expressed, usually spoke, in order to be culturally legible.  This fact enables the disaggregation of expression and identity, which in turn permits speech and equality claims to be pitted against each other.  Conversely, however, because gay identity cannot exist socially without expression, expression is a component of the very identity itself.  When confronted with the doctrinal boxes of First and Fourteenth amendment law, this merger of expression and identity that exists in social practice creates a paradox that current law cannot resolve.

 

But the gay rights conundrum is merely one component of a broader set of cases in which  equality claims conflict in some way with First Amendment-based arguments.  The ensuing confusion has been felt across all major fields of anti-discrimination law, including race, gender and religion, as well as sexual orientation.  In race-related cases, for example, such as debates about whether viewpoint diversity can serve as a justification for affirmative action,[2] or whether race-conscious redistricting can serve as a proxy for political interests under the Voting Rights Act,[3] the Court has waffled on whether associating race with viewpoint is empowering or insulting.

 

In such cases, courts tend to resort to either doctrinal categorization (was the exclusion based on status and thus is an equality claim or on viewpoint thus creating an expression defense?) or institutional categorization (is there a public forum?).[4]  These moves may suffice for resolving a dispute.  But there is a gaping vacuum at the level of jurisprudence and social theory.

 

Courts have failed to grasp that these cases present their own new species of equality claims, not simply a conflict between two traditional doctrinal categories.  Each case is treated as disconnected and unrelated to any common problem.  My contribution to this conversation has been to propose a concept of expressive identity for equality law,[5]  which I would describe as recognition that in equality claims the assertion of self-worth is inseparable from the demand for equal treatment.

 

My major current scholarly project is an explication of this expression-equality problem, an investigation of its historical origin and development, and an analysis of the discursive work that it performs in U.S. culture.  My goal is to weave a series of previous articles into a book and, along the way, probe more deeply into this problem and its ramifications.  This paper is a first step in that project.  Here it is my goal to examine how these issues have developed in the context of sexual orientation cases.  In particular, I ask three questions:

 

* Why is “gay” so powerfully expressive in the context of an equality claim?

* What exactly is “gay” thought to express? and

* Why does it seem (in the present moment) that only “gay” is so expressive?

 

I. Expressive Identity

 

Although identity politics has become part of the landscape of our social reality, the law has not yet grasped its full import.  Law fractures social reality into competing doctrinal boxes.  “Equality versus expression” has become a staple of legal and political debate.  Although one might sense that this dichotomizing is unfortunate, there has been no attempt to develop a theory of expressive identity that could be posed as an alternative method of analysis.  As a result, courts have coped with many  examples of its manifestation (in affirmative action and gay rights cases, for example) as utterly disconnected episodes reflecting different doctrinal problems.  Expressive identity remains an unacknowledged thread of the constitutional fabric.  In fact, expressive identity cases comprise a new stage in the dynamic interaction between constitutional law and oppositional social movements.

 

In most race cases, for example, the factor of visibility itself functions to communicate both difference and, implicitly, self-worth.  The expressive content of visible racial difference is powerfully demonstrated by the impulse to exclude.  “I don’t want blacks in this group” reveals two political stances: explicitly that of the speaker, and implicitly that of the African-American whose claim to a right of presence and inclusion bespeaks volumes about the rejection of any notions of inferiority.  Both the demand for inclusion and the impulse to exclude reflect viewpoints.  How the law manages this compound is an important and not easy question; but at the least, it should be managed in an equivalent way regardless of the basis for the inclusionary claim.

 

Identity cannot exist without representation.  Individuals can often communicate certain kinds of identity, such as race, without conscious action.  Other kinds of identity, such as religion, are typically invisible. But even individuals with visible identities also communicate messages of group pride and dissent from negative assumptions or stereotypes. 

 

Speech and other expressive activity associated with identity is also a form of dissent.  Claims of equality based on identities of difference are intrinsically a kind of protest.  An example is found in one of the (many) First Amendment cases arising out of the African American civil rights movement, where one placard carried by protesters stated simply, “I am proud to be a Negro.”[6]  Or, as Kimberly Crenshaw has pointed out, consider that “I am Black” can function as both “a positive discourse of self-identification” and “a statement of resistance.”[7]

 

Identity claims in law arise not merely from a social context in which a particular group shares a certain history, culture, or status.  Underlying that kind of identity is a shared viewpoint, not a set of opinions or a viewpoint specific to any particular topic or issue, but "view-point" in a more literal, basic sense:  a shared point of view(ing), a shared position from which one's views emerge.

 

What distinguishes the viewpoint embedded in expressive identity is its inextricable linkage to the identity itself.  It is not merely viewpoint alone, as in the shared expression of a group composed of members of the Republican Party.  The underlying identity claim is not undermined by its association with a non-identity cluster of viewpoints, even arguably surprising ones such as gay Republicans.  Both components of that category -- gay and Republican -- are expressive, but only the former aligns with a system of social stratification that inscribes it as identity in the sense that this book contemplates.  In the domain of law, that minoritarian status paired with social disempowerment renders the group defensible against majoritarian rulemaking. The ways in which an individual is raced or gendered carry over to the full range of social life.  One's identity, therefore, is based not on an individual’s self-perception of the salience of certain characteristics, but on the centrality of those characteristics to her standing and treatment in society.

 

The phrase "identity politics" captures the moment of recognition of, and reaction against, a system of exclusion.  Recognizing exclusion, one's place, and one's community's place in that discursive system (but outside the bounds of the purported universalism of liberal precepts, such as the First Amendment) is the experience from which identity and identity politics emerge.  Simply put, "when a group recognizes its own exclusion, [that] tends to signify the formation of an identity that has political consequences."[8] The moment of affiliation, of realization of exclusion, is a (perhaps the) moment of identity formation.  It is the moment when identity's social meaning becomes manifest to the identities that are created and sustained.

 

Difference is a position that law conventionally links to status, but it is also a position or point of view.  The very differences that constitute the meaning of identity categories reflect the social hierarchy that equality claims disrupt.[9]  This is the duality that the expression/equality dichotomy in law cannot accommodate.  The outsider viewpoint becomes part of the very nature and social definition of the identity.  To a significant extent, that point of view(ing) creates the identity.

 

The interrelationship can be so essential that when the belief structure associated with an identity is challenged, the identity itself can seem to be at risk.  Some of the most vituperative debates in law and politics erupt when the assumed unity of identity group membership and political belief is ruptured, as in the case of disagreements among African Americans over the nomination and the philosophy of Supreme Court Justice Clarence Thomas.[10]

It is because of the extent to which viewpoint is constitutive of outsider identity that disagreement among identity group members may seem like betrayal.  Political differences become identity differences, and disputes are seen as "fundamental disavowals of who we are."[11]  Another such example occurred when feminists argued fiercely among themselves over whether anti-pornography laws represented an “authentic” voice of women oppressed by sexualized commerce, or whether they were a misguided throwback to treating women as presumptively victims of sexuality.[12]

 

This phenomenon does more than make for vituperative intracommunity debates, however.  It can be understood in one of two ways.  Arguments over “who we are” could essentialize viewpoint by linking it to identity characteristics thought of as natural, such as race.  This approach extends to the realm of ideas all of the dangers of an essentialist belief that black experience or women’s experience is universal for persons within those identity groups.  Alternatively, such arguments could denaturalize identity, by exposing one aspect of the contingency of categories often viewed as quasi- or literally biological.  This second approach paves the way to an understanding of expressive identity.

 

As Alex Johnson wrote in another context, the voice of color is "variegated."[13]  Clarence Thomas speaks in a "new dialect,"[14] but still within that voice, however contemptuous the tone, because he draws on his experiences as a person of color. Whatever his specific viewpoints, Justice Thomas, too, is a product of profound outsiderness.  And it is precisely because his arguments oftern derive from his experiences as an African-American that his point of view is singular.

 

Identities, once formed, require expression in order to exist, but they also require expression in order to be created.  Expression is the crucible in which identity is formed.  Identity cannot exist subjectively without the constitutive impact of complex discursive systems, one of which is expression.  Discourses shape individual experiences of self-identification, in part by a process of normalization that makes particular differences matter.  Ideas shape identity, and culture creates the self, at least as much as the reverse.  Identity is not a prediscursive, biological given.

Judith Butler’s work introduced the concept of performativity to the body of scholarship addressing the process of gender construction.  Butler's theory of the performativity of gender posits that gender attributes and acts "effectively constitute the identity they are said to express or reveal."[15]  In that sense, we all “perform” gender, a performance that, like others, is not preordained by nature but is itself generated and sustained by a matrix of cultural mechanisms, a matrix that allows the performance to be read and understood.  Drawing on that analysis, feminist legal scholars have argued for reframing cultural notions of gender as constructive of the social and legal significance of biological sex categories,[16] and for the importance of importing a recognition of constructivism into the procedure by which narratives of woman-ness are assessed.[17]

 

Initially, applications of Butler's theory of performativity were limited to the parameters of equality law.  The concept of expressive identity raises another set of questions about the operations of performativity by asking us to address the nature and origin of the messages that are generated and communicated.  An examination of those messages highlights the ideational function of identity, pushing it outside the confines of equality law as such and more fully into the realm of expression.

 

Butler's recent work extends the theory of performativity.  She explores the concept of speech acts, the process by which speech enacts and creates new social realities. As developed primarily in the work of J.L. Austin, a speech act is a verbal statement that itself alters material conditions or legal status, such as the statement “I pronounce you husband and wife.” Butler examines identity politics using the related concept of interpellation, which posits that the act of recognition functions as an act of constitution, creating a moment not only in which the addressee is acknowledged in her cultural meaning self, but also in which she and her identity are simultaneously created.[18]  In Butler’s explication of the epistemology of hate speech, for example, she asks, "what does it mean for a word not only to name, but also in some sense to perform, and in particular, to perform what it names."[19]

 

Butler uses the military’s “don’t ask, don’t tell” policy as a primary example.[20]  Under the statute, service members can be expelled if they demonstrate a “propensity” toward homosexuality; one of the markers of this propensity, which can itself lead to expulsion, is the statement “I am gay.”[21] The policy defines “I am gay” as proof of propensity, and propensity as equivalent to a “homosexual act.”[22]  Butler argues that the policy makes that statement, in effect, a speech act:

Does the statement reveal the performative power of homosexual utterance, or does it merely underscore the productive or performative power of those who exercise the power to define homosexuality?[23]

 

Investing “I am gay” with such power raises the question of what act it is thought to perform.  Butler argues that the military policy normalizes a perception that coming out speech is a sexual solicitation, a threat, a kind of verbal assault. This overreading, in turn, prompts an understanding that exclusion of the speaker is a form of defense to solicitation.  This reading explains why exclusion is logically unnecessary as to closeted lesbian and gay service members, who are permitted under the policy to serve in the military.  One might also invoke the same understanding in aid of interpreting the Court’s decision in Dale, where the Boy Scouts, the defendant, may have been especially likely to over-read solicitation, given the persistent myth of widespread gay male molestation of boys.[24]

 

The notion that speech performs identity is richly significant for legal theory.   In particular, Butler’s argument about gay speech in the military has broader usefulness for expressive identity analysis.  It provides a context for analyzing why some, but not all, identity speech is treated as a speech act.

 

Butler focuses on the threat of sexual acts and of what is perceived as the challenge to the hearer’s implicit heterosexuality.  Expressive identity legal claims highlight a second misperceived message in coming-out speech:  a demand for agreement.  Courts interpret descriptions of oneself as nonheterosexual as distinctly and primarily a political viewpoint.[25]  Entities forbidden to exclude based on status thus acquire a defense through which they can exclude based on viewpoint.  As with the military policy, however, “the performativity attributed to the homosexual utterance can only be established through the performativity of a state discourse that makes this very attribution.”[26]  In this discursive dynamic, “who we are” becomes not an assault (or not only an assault) but an argument, to which silence or tolerance becomes agreement.

 

Understanding these problems opens a path for a better conception of identity speech.  If identity were understood to encompass not viewpoint but point of view(ing), the overreading of identity speech would not occur.  Equally important, the response of silence, or tolerance of the speaker, would be understood as a commitment to dialogue, of the sort that we expect after integration of “pure status” groups, and not as an imprimatur or endorsement.

 

In expressive identity case law, identity and performativity, dissent and equality, recombine in a new way.  Expressive identity theory envisions expression and equality as a continuum, rather than a dichotomy.  It embodies two components that can never be fully disaggregated.  As a result, identity becomes less fixed, less easy to define, classify, or contain, a development that could reinvigorate equal protection jurisprudence.  A theory of expressive identity differs from traditional identity politics because this unruliness arises not solely from the concept of difference, but also from that of dissent.  Expressive identity marks the juncture where equality claims can successfully incorporate point-of-view(ing) rationales.  In this way, theorizing expressive identity seeks to recuperate dissent for equality.

 

II. How “Gay” Came To Be Expressive

 

In the following section, I trace the evolution of the relationship between speech and equality claims in a series of legal contests involving state regulation of sexual orientation: cases seeking recognition by gay student groups in colleges and universities; legislation aimed at the suppression of the “promotion of homosexuality;” and the two cases in which the Supreme Court has ruled on equality claims by a gay group as against a First Amendment-based defense.   One sees that the relationship between these two aspects of gay equality claims – expression and status – has shifted over time.  Although the tension has been there since the beginning, the uses of the expression/equality distinction have changed, and indeed have been deployed both by advocates and opponents of gay equality.

 

A. Gay student organization cases

 

Twenty-five years ago, lesbian and gay student organizations began to file lawsuits challenging official university decisions denying them recognition and, therefore, access to the benefits available to recognized groups.  This body of law is seldom written about because its central holding (that public universities cannot selectively deny recognition or benefits to gay student groups without violating the First Amendment's prohibition on viewpoint discrimination) is so well settled.  A closer reading, however, reveals that the same demand for a right to recognition morphed from a viewpoint claim into an equality claim based on gay and lesbian identity.  The change in legal strategy came after some states added sexual orientation to the list of prohibited bases for discrimination.  The seamless transformation from an expression claim into an equality claim illustrates the fundamentally hybrid nature of expressive identity. 

 

In the typical case, an organization forms on campus, led by lesbian and gay students but open to and including others.  This group typically has multiple purposes:  advocating for gay rights, providing a safe harbor for gay students, and engaging the university community in dialogue on gay issues.  At some relatively early point, usually when the group first seeks recognition or begins actively sponsoring events, university officials deny it official support of the kind routinely provided to other student organizations.  The denial is explicit, often in writing, and bases the decision on one or both of the following factors:  the existence of the group would encourage the commission of crimes (usually citing a sodomy law), and/or formal recognition or the conferring of benefits would create the impression that the university approved of, or condoned, the tenets of the group.

 

The student organization cases arose in two generational stages.  In the first, which began in the early 1970s, gay student groups sued public universities for recognition as official student groups.  They relied on the First Amendment, claiming that the universities were denying their freedom of expressive association by refusing to charter them despite their having satisfied all of the neutral criteria for legitimate student organizations.  The courts universally found for the plaintiff students, ruling that universities could not deny them recognition based on their groups’ public adoption of, and implicit endorsement of, homosexuality.  One court of appeals, for example, framed the "underlying question" as whether "group activity promoting values so far beyond the pale of the wider community's values is also beyond the boundaries of the First Amendment."[27]  This cluster of cases is emblematic of a broad range of early gay rights cases that invoked First Amendment and procedural due process -- but not equality -- grounds.

 

The second stage of cases developed after jurisdictions began to add sexual orientation to the scope of local civil rights statutes.  Student groups at private colleges acquired the capacity to sue for recognition based on claims under those statutes.  The civil rights statute-based claims were used to challenge exclusionary practices by a broad range of public accommodations, not just educational institutions.  By necessity, in order to fit within the parameters of the civil rights laws, these suits had to be premised on equality claims.  Indeed, given the inapplicability of the First Amendment to private actors, the plaintiffs in cases based on a civil rights statute had to disavow any viewpoint claim.  Substantively and politically, these cases made exactly the same challenge as the first generation of student cases, but they were framed as the doctrinal opposite.  In the most important of the university cases, lesbian and gay students at Georgetown University Law Center filed suit, and the University defended on grounds of its First Amendment rights, including its free exercise rights as a Roman Catholic institution.[28]

 

Throughout the student organization line of cases, the initial dynamic between each claim and its asserted defense remained constant.  The viewpoint claim led to two defenses.  One was based on a conduct argument, and treated the demand for a publicly visible role on campus as a threat of conduct.  The logic of these arguments tracks very closely the logic described by Butler in her analysis of the Don’t Ask Don’t Tell policy.  The second was a viewpoint defense which contended that official recognition amounted to an imprimatur, a kind of compulsory endorsement.  In essence, the question became whether conduct or viewpoint defined the class.

 

1. First generation student cases

 

Underlying the first generation cases is a tension between the surface claim of viewpoint and what one senses everyone knows is the real issue:  whether a public institution must treat homosexuals just like everyone else.  It is central to a pure First Amendment claim that the issue be viewpoint, the content of the ideas and not the identity of the speaker.  What is being suppressed are ideas that anyone could express.  In the first three of the student cases to reach courts of appeals, it appears that the groups were composed of both gay and straight students, although gay students predominated.  This fact would seem to bolster the pure First Amendment viewpoint approach, but the language of the appellate court decisions is ambivalent. 

 

The two earliest opinions described the plaintiff groups in viewpoint terms, but the third shifted to a description of who the plaintiffs were.  In the first case, Gay Students Organization of the University of New Hampshire v. Bonner, the First Circuit referred to a group that "stands for sexual values . . . far beyond the pale"[29] and described them as “a cause-oriented group” with “a basic message.”[30]  The Fourth Circuit in Gay Alliance of Students v. Matthews,[31] explicitly noted that both gay and straight students belonged to the group as "individuals who believe in the right of self-determination with regard to sexual orientation"[32] and described the group as "at most, a 'pro-homosexual' political organization."[33]

The third case, Gay Lib v. University of Missouri,[34] produced not only a court of appeals decision but also a dissent from the Supreme Court's denial of certiorari.  The district court, which had upheld the University's action, characterized the issue as "the legal right of homosexuals to form a student organization."[35]  The Eighth Circuit reversed, asserting that the University could not "ascribe evil connotations to a group because they are homosexuals" and noting that "not all members of the group are homosexuals."[36]

 

Most dramatically, the dissent from the denial of certiorari signed by Justices Rehnquist and Blackmun framed the question from the University's position as analogous to "whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of a state law providing that measles sufferers be quarantined."[37]  The identity completely subsumes the viewpoint in this framing; indeed, the identity at one stroke causes, explains and renders ridiculous the viewpoint.

 

Similarly, the argument made by the defendants in each of the first generation cases that the expression in question posed an imminent danger of lawless action was fundamentally shaped by who the speakers were.  The University of New Hampshire argued in Bonner that allowing a gay student dance could lead to conduct that would violate the sodomy law then extant in that state.  The First Circuit was unpersuaded, citing the requirement established in Tinker v. Des Moines Independent Community School District[38] that even high school students could not have their political speech infringed based on "'undifferentiated fear or apprehension' of illegal conduct."[39]  In Matthews, Virginia Commonwealth University had argued that recognition of the gay group would “increase the opportunity for homosexual contacts” and “would tend to encourage some students to join the organization who otherwise might not join.”[40]

 

In Gay Lib, the arguments about the danger of criminal conduct shifted, profoundly, to a claim that this group was uniquely likely to violate the law.  The University Board of Curators justified the refusal to recognize the group on a series of "findings of fact," one of which was that "[h]omosexuality is a compulsive type of behavior."[41]  The district court held for the University, ruling that the latter’s action was justified despite the infringement on expression "where the result predictably is to bring on the commission of crimes."[42]  The Eighth Circuit reversed, finding that the district court had blurred the line between "mere advocacy and advocacy directed to inciting or producing imminent lawless action."[43]

 

Again, the "people with measles" analogy of Justices Rehnquist and Blackmun provides a dramatic metaphoric contrast, even to "mere" advocacy directed to incitement.  Under these circumstances, the two Justices said after offering the analogy, "the very act of assemblage"[44] threatens the state's legitimate interests.  In that view, this group of people could not help but violate the law byspreading their disease, so the institution that is prevented from restricting them is also rendered helpless to prevent crime.  "The very act of assemblage" becomes tantamount to a crime -- a stunning concept, and one completely derivative of who the group is.

 

Lastly, neutrality was not merely unappealing for the defendants in these cases, but was also considered to be impossible.  The defendants claimed that neutrality, as manifest in recognition and benefits, could not be seen as anything other than endorsement.  Only when compelled by a court would recognition by the university not constitute approval.

 

On this point, both positions articulated in these opinions appear to agree.  Writing in concurrence in Matthews, Judge Markey noted that the assertion that recognition of the group did not constitute approval was a "fiction,"[45] but a fiction required by the constraints of the First Amendment's privileging of expression.  From the opposite perspective, Judge Regan, dissenting in Gay Lib, asserted that "unlike recognition of political associations, whether of the right, center or left, an organization dedicated to the furtherance and advancement of homosexuality would, in any realistic sense, certainly so to impressionistic students, imply approval not only of the organization per se but of homosexuality."[46]

 

Thus, who the speakers are, what their speech will lead to, and the uniquely powerful contaminating effect of their self-identification, framed the First Amendment analysis throughout this set of cases.  Even as the student organization decisions reaffirmed First Amendment supremacy, they also taught that both the conduct and the ideas could not be disaggregated from homosexuality.  Indeed, because these cases reaffirmed First Amendment supremacy, they also taught that the identity itself is infected with criminality and inflected with viewpoint.

 

2.  Georgetown and the Head-on Collision

 

If the gay student cases put expression and equality claims on a collision course by beginning the process in law of cementing together homosexuality and viewpoint, then Georgetown University provided the point of impact when gay student groups at the University's main campus and at its law school sought university recognition.[47]  The students sued based on the D.C. Human Rights Act, a local civil rights law that prohibited discrimination by educational institutions on the basis of sexual orientation.[48]  The University asserted that the statute could not be applied to it without violating its rights under the Free Exercise Clause and its right to expression.

 

Sitting en banc, the District of Columbia Court of Appeals sought to protect the rights of both parties.  The court ruled that the University's denial of recognition, insofar as it involved only an intangible endorsement, did not violate the statute.  Stated another way, if the students were to be taken at their word that they did not seek an imprimatur, then losing this intangible endorsement was not a true loss, and therefore, not discrimination.  As to all tangible benefits, however, including those associated with official recognition, the court rendered judgment for the students.  As to what the court essentially classed as real benefits, it ruled that the District's compelling interest in eradicating discriminatory treatment based on sexual orientation outweighed the burden on Georgetown's First Amendment rights from providing those benefits to the students.

 

The most divisive debate on the court centered on whether the University's denial of recognition had been based on sexual orientation, the prohibited basis for such an act, or on the message that the groups sought to communicate.  The court ruled that the civil rights statute could not compel speech or endorsement from a private university in the form of formal recognition, but could compel such a university to act neutrally by requiring evenhandedness.  The court concluded that the prescribed neutrality could be compelled as to a class of persons, but not as to ideas.

 

On the first point, that of official recognition, the court ruled for the University, holding that in accordance with its Roman Catholic beliefs, Georgetown could not be made to "condone, endorse, approve or be neutral about homosexual orientation, homosexual lifestyle or homosexual acts."[49] 


 

 

As to the conferral of tangible benefits that recognition would entail, the majority ruled that University neutrality did not constitute endorsement.  Equality in terms of tangible benefits was an anti-discrimination principle that the Human Rights Act could mandate without burdening Georgetown's Free Exercise rights to an unconstitutional degree.  In doing so, the majority reached the question of whether the differential treatment arose from an opposition to certain ideas or discrimination against a class of persons.  Three perspectives emerged that, although not articulated as such, staked out a framework for expressive identity doctrine.

 

Judge Mack, writing for the court, ruled that a viewpoint could be attributed to the gay student groups absent evidence to that effect.  The majority found that class-based animus led the University to deny recognition based on the promotion or advocacy of ideas when the group's statement of purpose said nothing to support that notion.  Judge Mack noted that in one case, the University assumed that if a gay student group were to form, it would necessarily involve such advocacy, even though the group had not in fact formed.  In addition, the court found further evidence of animus based on sexual orientation in the University's assumption that the gay groups were necessarily -- "'by definition'" -- associated with "'a full range of issues'" raised by the gay rights movement in general.[50] 

 

Taken to its extreme, the majority’s ruling is unpersuasive.  In fact, it was perfectly reasonable for the University to impute a viewpoint as to the moral legitimacy of homosexuality to the groups even absent a specific statement to that effect.  However, the majority did act consistently with anti-discrimination law by focusing on the perpetrator’s class-based animus, in essence treating the case as one involving mixed motives.

 

The second position, argued by Judges Belson and Nebeker in dissent, asserted that Georgetown had a free expression defense as well as a free exercise defense.  They argued that Georgetown appeared to have treated the gay students differently because of their advocacy of "a particular message, viz. the morality of a homosexual life-style which was analogous to the promotion of political views."[51] No law prohibited discrimination on that basis. 

 

Although they did not characterize it as such,  Judges Belson and Nebeker used reasoning identical to the arguments upon which the gay student groups in the first generation of decisions had won their cases.  If the student groups did not communicate a positive message about homosexuality, they had no reason to exist.

 

For Judges Belson and Nebeker, that was the end of the argument.  The First Amendment defense trumped the equality claim with no trouble, and it would for any private actor, whether religiously affiliated or not.[52]  They did not address the question of when, or whether, any equality claim exists without an element of advocacy. 

 

The third analysis came from Judges Ferren and Terry in dissent.  They argued that the distinction between advocacy and identity, or status, was false.  In their view, discrimination against ideas inevitably discriminates against persons because "ideas -- and advocacy -- are an essential part of the person."[53]  They construed the Human Rights Act to mean that even if the Act does not forbid discrimination against "homosexual ideas, it unquestionably does forbid discrimination against homosexuals because of their ideas."[54]

 

So phrased, this is a somewhat garbled argument.  It seems quite possible to separate the ideas from the person.  There is no formal body of ideas to which all homosexuals subscribe.  One must assume that what the judges meant by "homosexual ideas" is roughly what Judges Belson and Nebeker defined as the student groups' message, "the morality of a homosexual life-style."  This is the concept of expressive identity in a nutshell -- the proposition that equality in all senses, including moral equality, is an idea that merges with status, when an equality claim is articulated.

Thus, Judges Ferren and Terry sharpened the point of dispute, posing the expressive identity dilemma in bold relief:  if equality is an idea and it has merged with identity, then which trumps -- the defense against compelled viewpoint endorsement or the equality command?  For these dissenters, the equality principle won, in part because there appeared no way to honor it without infringing to some extent on the defendant's First Amendment rights.  Yet that resolution begs the question of why one principle is chosen over the other, since the logic could as easily be reversed.

 

Even in this exceptionally thoughtful conversation among judges, none of the opinions escapes the trap of the expression/equality dichotomy.  The court’s confusion grew directly from how the parties and conventional doctrine had framed the case.  In fact, gay plaintiffs have argued that discrimination against them is based on viewpoint (the first wave of student organization cases); based on antigroup bias and not on viewpoint (cases like Georgetown); and based on both (the challenges to the “don’t ask, don’t tell” military policy).  Private defendants have argued that differential, adverse treatment of gay people is because of a clash of viewpoint, not bias.  The military, state universities, and other public sector defendants have argued that this discrimination is based on anything but viewpoint.  Both sides have been driven into these internally conflicting positions by doctrinal incoherence and the absence of a concept of expressive identity.

 

B. “No Promo Homo” legislation

 

As this point was increasingly locked into the case law through the gay student organization cases, the focus of efforts to enact antigay legislation shifted to laws prohibiting government agencies or grantees from promoting homosexuality.  Unlike the earlier student group cases, these newer laws codified a denial of some benefit to groups explicitly defined by their advocacy.  Successful challenges to such laws reiterated that "promotion" of homosexuality is protected speech, apart from advocating repeal of anti-sodomy or similar laws.[55]

 

The Briggs Initiative appeared on the November 1978 California state ballot as a referendum question that would have permitted the firing of any school employee who engaged in the "advocating, soliciting, imposing, encouraging or promoting of private or public homosexual activity directed at, or likely to come to the attention of, schoolchildren and/or other employees."[56] It was widely understood to be a vote on whether the state should fire gay teachers and thus purge that group from the schools and from contact with children.[57]  This understanding of the meaning of Briggs was consistent with the older purge-the-homosexuals theme that had long dominated public discussion. 

 

But the Briggs Initiative was configured to play a double role. It was framed in terms of banning a viewpoint, the "advocating" or "promoting" of homosexuality, rather than the exclusion of a group of persons. Lesbians and gay men easily fell within this proscription because to come out is to implicitly, or often explicitly, affirm the value of homosexuality. For that reason, a Briggs-style law could be used to target all lesbian and gay school employees who had expressed their sexual orientation, except in the most furtive contexts.

 

 The viewpoint target made the initiative more complicated, however. It threatened anyone, gay or straight, who voiced the forbidden ideas. Thus it simultaneously discriminated against gay people while extending its aim to everyone not gay who supported them.

 

The proposed law did not merely include the two distinct elements of viewpoint bias and group classification. It merged them into one new concept. This merger - what I would describe as the formation of a legal construct of identity that incorporates both viewpoint and status - would come to dominate both the right-wing strategy against gay rights and the claims of the lesbian and gay community for equality.

 

The Briggs Initiative referendum campaign marked the moment when American politics began to treat homosexuality as something more than deviance, conduct, or lifestyle; it marked the emergence of homosexuality as an openly political claim and as a viewpoint. That, in turn, laid the foundation for the emergence of a new analysis of speech about homosexuality. Instead of treating such speech as the advocacy of conduct, courts shifted to a consideration of gay speech  as the advocacy of ideas. The once-bright boundary between sexual speech and political speech began to fade.

 

A year after the Briggs vote, the California Supreme Court ruled that statements of homosexual identity constituted political speech protected by the state's labor code.[58] In a conclusion still unique in judicial decisions, the court ruled that a complaint that the defendant discriminated against "manifest" homosexuals and homosexuals who make " "an issue of their homosexuality' " stated a cause of action that defendants violated the labor code by trying to pressure employees to " "refrain from adopting a particular course or line of political ... activity.' "[59]

 

Measured by these standards, the struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as a political activity.... One important aspect of the struggle for equal rights is to induce homosexual individuals to "come out of the closet," acknowledge their sexual preferences, and to associate with others in working for equal rights.[60]

 

This was the first ruling other than in the student organizations cases that treatied self-affirming "identity speech" as explicitly political because of - rather than in spite of - its expression regarding sexuality, and not as a surrogate for, or prediction of, conduct.[61]

 

By contrast, the federal courts, in adjudicating the constitutionality of language identical to the Briggs Initiative, relied on reasoning that avoided the question of whether promoting homosexuality could qualify as political expression. Legislators in Oklahoma enacted the same language rejected by voters in California, after Anita Bryant, a former Miss Oklahoma who had led the effort to repeal the Dade County civil rights provision, urged them to protect school children  from persons who "profess homosexuality."[62] The Tenth Circuit found the Oklahoma statute overbroad because it had the potential to reach such core political speech as a school employee's opinions in favor of adopting a civil rights law or repealing a sodomy law.[63] The dissent attempted to create a new rule against incitement to sexual conduct, arguing that although advocacy of "violence, sabotage and terrorism" was protected under the Brandenburg test, advocacy of "a crime malum in se" - "a practice as universally condemned as the crime of sodomy" - should not qualify for First Amendment protection.[64] Bryant's own phrase had captured the paradox, however: one "professes" a belief, not an act.

 

In 1987, Senator Jesse Helms introduced an amendment to the appropriations bill for the Department of Health and Human Services that forbade use of any funds "to provide AIDS education, information, or prevention materials and activities that promote or encourage, directly or indirectly, homosexual sexual activities"[65] - language that closely tracked that of the Briggs Initiative. Unlike Briggs, however, the Helms bill was unstoppable. Opponents succeeded only in deleting the term "indirectly," thus arguably limiting its scope to the most graphic materials.

 

The Helms Amendment combined the Briggs Initiative's one-stroke targeting of both gay people and pro-gay ideas with the most successful argument made by the anti-choice movement in the abortion debate: that public funds should not be used to "subsidize" activity associated with what conservatives paint as sexual permissiveness. The difference here was simply that the target group was gay men rather than indigent women. And, unlike abortions, the funded activity, education, was public in its nature, raising the questions of how and on what terms the nation would discuss AIDS. In fact, gay-targeted educational campaigns were very unlikely to be seen outside gay venues, but the right launched an attack that spread from the safe sex comics and erotic videos distributed in gay bars to sex education and condom availability in the schools.

 

 The debate on adoption of the Helms Amendment centered on objections raised by Senator Helms to AIDS education efforts within  the gay male community, specifically those of the GMHC. Senator Helms made clear, repeatedly, that his objections were based on his views of what was moral and that the purpose of his amendment was to insure that the content of AIDS education be made to conform to what he believed to be moral precepts of behavior, which for him meant absolute opposition to homosexuality or any tolerance for it.[66]

 

By the late 1980s, the angle of attack was clearly directed at “homosexual ideas” and not simply at gay persons as such. Dozens of AIDS service organizations, many openly affiliated with gay community groups, received millions of dollars of CDC funding for education and other prevention efforts. Neither the Reagan Administration nor Senator Helms ever attempted to exclude all gay persons or groups as grantees; even if there had been the desire for such an exclusion, it was practically infeasible and politically implausible. The attack on gay identity had now centered on expression, and "no promo homo" was its theme song.

 

The "no promo homo" language that originated in the Briggs Initiative and was used to restrict AIDS education became the model for other anti-gay legislative initiatives, in the United States and beyond. At the federal level, Congress targeted programs promoting homosexuality “as normal,”[67] “homosexual beliefs,”[68] and “homoeroticism”[69] for defunding.  Arizona enacted criteria for AIDS education materials in public schools that prohibited any local district from providing instruction that promoted a homosexual lifestyle, portrayed homosexuality as a positive alternative lifestyle, or suggested that some methods of sex are safe methods of homosexual sex.[70] Alabama adopted similar legislation.[71] In Britain, Clause 28 of the Local Government Act of 1988 stated that local governments could not "promote homosexuality or publish material with the intention of promoting of homosexuality" or "promote the teaching ... of the acceptability of homosexuality as a pretended family relationship."[72] Nor could government funding go to private entities engaged in those acts.[73]

 

Each of these post-Briggs "no promo homo" campaigns utilized a concept of homosexuality that not only incorporated a concept of ideas or viewpoint, but was defined by it.

 

C. St. Patrick and the Boy Scouts

 

1. The St. Patrick’s Day Parade case

 

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,[74] the Supreme Court decision upholding the right of the private group sponsoring the Boston St. Patrick's Day Parade to exclude a gay group that wanted to march as part of the parade, seems easy at first.  The Irish-American Gay, Lesbian and Bisexual Group of Boston ("GLIB") asserted that the Massachusetts public accommodations law, which banned discrimination in public accommodations based on sexual orientation,[75] required that the parade organizers admit them to the parade and treat them equally.  "Equal treatment," as defined by the GLIB membership, meant being allowed to carry a sign bearing the name of the group, just like all of the other contingents in the parade.

 

If one accepts, as the Court did, that the issue was whether parade organizers could be required “to include among the marchers a group imparting a message the organizers do not want to convey,”[76] then the First Amendment trumping of the equality claim is almost self-evident.  The Court's result rests comfortably on the notion that an antidiscrimination law cannot be enforced when its inevitable and only impact will be to compromise the defendants' own right to speak.[77]  As the Court framed it in Hurley, the application of the Massachusetts statute made the sponsors' speech itself a public accommodation.[78]

 

But the Court’s formulation ignores the complexity of the problem.  Beneath the Court's seemingly easy, unanimous decision lie many unexamined assumptions and unanswered questions.  The Court made no attempt to escape the equality/expression dichotomy.  On the Court’s analysis, if GLIB’s presence imparts any message, it loses.  GLIB’s message simply drowned their equality claim, transforming it from an assertion of civil rights into “a proposal to limit speech in the service of orthodox expression.”[79]

 

Justice Souter closes Hurley with a coda, in which the character of the parade as primarily expressive is hardly significant.  Drawing on the private club cases in which the Court had forced the admission of women by applying antidiscrimination laws,[80] Justice Souter wrote that no prior decision would force a private defendant, no matter how significant the economic, tangible benefits of association were, to admit those "whose manifest views were at odds" with positions taken by the club.[81]

 

The Court simply avoids the question of whether identity itself may be inseparable from "manifest views."