Dorothy's friend goes to law school Kevin S. Reuther
I came to law school as an out gay man. Whether it's by nature or by choice, being gay influences nearly every aspect of my life. My experience as a law student is no exception.
As I set out on the task of recreating for the reader my experience "as an out gay person" I was immediately confronted with an uneasiness, however. "Gay" is only one descriptive adjective for my identity. I am also white. I am a man. I am Lutheran. I am from a small-town, middle America, upper-middle class, traditional but tolerant family. I am the youngest of three children. I am a few years older than the average law student. I eat meat... My "identity" is infinitely more complex and individualistic than the impression given by stating I am an "out gay man." The way I experience law school is necessarily influenced by many aspects of the history, roots, ideas and cells that give me an "identity."
Still, there is something peculiar and particular about being gay that makes it different from the other pieces that make up my identity. I feel it. And I am confident that it makes sense for me to write "as an out gay person" even if that agenda obfuscates other potential explanations for why my experience is different from that of my straight colleagues.
The vignettes that follow are all true. They have not been embellished or dramatized. That is to say, they are true accounts of experiences as I experienced them. Undoubtedly, my (gay) memory has highlighted and shaded the events I describe in a fashion consistent with my (gay) interpretation. In any case, since my objective is to give an account of my experience as a gay person any misrepresentations shouldn't really matter. This was what I heard as a gay person. This was what I thought as a gay person.
I have tried to be selective in choosing which stories to tell. Most of them have specifically gay content, since my gay identity is most obviously implicated in discussions or situations where being gay is at issue. This does not mean, however, that I only feel and think gay when "gay" is on the table. To the contrary, I almost always feel and think gay and I regret that that message may get lost in this narrative.
Finally, it is not without a certain amount of fear and discomfort that I share these stories. This is my first attempt at a narrative presentation of my thoughts for a course. I feel discomfort in being so self-indulgent. I feel fear in being exposed and vulnerable. This exercise has torn away the shield of objectivity I am used to employing to protect me from the words I put to paper. These words are my experience, my personhood.
We are invisible
1. Jacobson, assumed to be a homosexual, who illegally ordered magazines containing nude photos of teenage boys. (Jacobson v. US)
2. "Group of lesbians" at the California Rehabilitation Center who offered other inmates the alternative--"fuck or fight." (California v. Lovercamp)
3. Unnamed individuals engaging in "criminal homosexual conduct" spied by police officers peering into a public restroom. (Problem case--we're told to seek guidance in Smayda v. US)
4. Michael Hardwick, "a homosexual," charged with violating Georgia's sodomy statute. (Bowers v. Hardwick)
These are the lesbians and gay men I encountered in my assigned readings as a first year law student at HLS. All of these gay men and lesbians are criminals of one sort or another. Not surprisingly, I met them all in my criminal law class. They are the ONLY gay and lesbian characters who appeared in the thousands of pages I was assigned to read in my first year of law school.
Don't gay and lesbian people make contracts? Don't we own property? Don't we commit tortious acts? Wouldn't we make an interesting "class" for a class-action hypothetical?
My friends and I don't order magazines with nude photos of boys. We don't run around yelling "fuck or fight." Most of us don't even engage in tea room sex. Where are
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we? Where am I? I came to law school to learn skills to be an advocate for gay people. Did I make a mistake? Don't they need any legal help?
A person's (homo)sexuality seems to be of interest to the law school curriculum only when it is to be criminalized (or de-criminalized as the case may be). A curriculum which presents a world of contractors, property owners, and tortfeasors devoid of homosexual characters misrepresents the complexity of the social reality. In fact, such a curriculum perfectly exemplifies the insidious nature of heterosexism by erasing the (homo)sexual significance of actors' identities in the mainstream while highlighting an association between (homo)sexuality and criminal behavior--pedophilia, public exhibitionism, and gang raping "lesbians." Moreover, it gives straight students the false impression that gay men and lesbians will not be among their clients (unless they intend to make a career of defending the right to public sex).
Since the social conscience has traditionally only acknowledged (homo)sexuality to characterize it as deviant or criminal, it is not surprising that the same is reflected in our curriculum. To be sure, the (homo)sexuality which is present in most non-criminal contexts has been erased or ignored in the stories judges tell about legal actors. But what about hypotheticals? What about questions? What about group projects? What about new, interesting, evolving areas of the law--gay rights, anyone?
By the second month of my one-L year I had figured out that it would be my own task to seek ways in which the law affects lesbian and gay people. No professors had touched on the gay/lesbian experience. None of my syllabi had a lesbian/gay unit. No student in my section had yet uttered the G-word.
My criminal law professor was one of the authors of the Model Penal Code. As a result, we spent a considerable amount of time poring over the details of the model code. MPC Section 210.3 deals with manslaughter. It states, in part, that "[c]riminal homicide constitutes manslaughter when: ... (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be."
I read this statute as a gay person. I read it as a gay person who a year earlier had been a member of a gay community which experienced two separate murders within the span of a month. The murderer had sent a letter to the local gay community organization stating his intentions to purge the city of its AIDS-infested, perverted citizenry. Fortunately he was caught before a third gay man could be murdered.
As I sat in class and listened to people discuss the pros and cons of mitigating circumstances with respect to homicide my thoughts turned to the murders of these two gay men in my community. It angered me to think that the murderer might argue that he suffered from a mental or emotional disturbance and that it was "reasonable" in light of his circumstances. (As it turned out he was the HIV-positive (gay?) son of an ultra-conservative professor at a bible college. Perhaps his projected self-hate was reasonable on some level. I wished there had been a way to prosecute his father.)
I raised my hand, took a deep breath and asked: "Since the reasonableness of one's actions is judged from the perspective of the perpetrator--in light of the situation as he perceives it--couldn't one who is taught to believe and truly believes that gay people are aggressors and present a threat use this belief to mitigate in a gay murder case?"
A very long pause.
A scrunched up face looks back at me.
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All of the sudden my face felt red and warm. "I mean, like, what if there were a gay man who went up to another man and propositioned him. And then the other, infuriated, beat the gay man or shot him or whatever. Wouldn't this section allow him to mitigate simply by showing his education and social milieu--his 'situation'--taught him to believe that gay men were a threat?"
A cloud of uneasiness settled over the entire room. I felt bad. I felt like the whole class was thinking, "god, give the old guy a break."
"Well, no. I've never heard of that," he finally responded. And then from the back of the room, another question. The cloud lifted. I sank down in my chair and would not for the rest of the semester share my private (gay) thoughts with the rest of my criminal law class.
One year later I learned that my hypothetical application of MPC Section 210.3 was not so hypothetical after all. It even has a name: the gay panic defense.
dismissed and DE-vALUed
"Mr. Reuther, you're being too principled. Re-phrase what you're saying..."
I believe we were discussing that case in contracts where the woman sells her diamond ring to a jeweler for a dollar not knowing that it is, in fact, a real diamond. Obviously, she wants it back. Or at least she wants some more money for it. What should the court do? And why?
I sat and listened to other students' justifications for why the jeweler should be able to keep the ring: "She made a deal." "Our country was founded on the principle of making something from nothing. It's a slippery slope once you start eliminating windfalls--you'll destroy entrepreneurial incentive." "Blah, blah, blah..."
Then I listened to different students make the case for the woman who had sold her ring: "It was a mistake." "She made a deal to sell a ring worth one dollar and the ring she ended up selling isn't worth a dollar so there was no deal because the object of the deal wasn't what the parties thought it was." "Blah, blah, blah..."
I raised my hand and said: "I think each one should get half the true value of the ring. He deserves something because without him she wouldn't have known it was a diamond and she deserves something because it was her ring and she didn't know its true worth. Each should get half."
"But why?" questioned the professor.
"Because it's fair," I responded.
That's when I got the "Mr. Reuther, you're being too principled" comment.
As a gay person I think I come to the law with a heightened sensitivity for issues of fairness. As a gay person I am the victim of blatant discrimination constructed and reinforced by the rule of law. It is unfair that my gay partner would not have standing to bring a wrongful death action should I be killed through the negligence of another. It is unfair that the law does not recognize our partnerships and accord them the benefits of straight partnerships. It is unfair that employers can fire gay and lesbian people because they are gay and lesbian and the law approves. Arguments which appeal to fairness resonate with me because I have experience with the principle.
My experience is that the law and law school professors privilege doctrine. My contracts professor was looking for a sophisticated doctrinal argument to convince him of my outcome. Even those professors who are honest about their desire for fair outcomes (my
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property professor--the only woman professor I had as a first year--was one) search for doctrinal strains to manipulate in achieving the desired goal. Perhaps this simply reflects the reality of law and the legal process. In any case, as a gay person I privilege what resonates as fair. Doctrine is my oppressor.
out on the inside, but still out
I had the great opportunity of spending last summer doing gay advocacy work funded by the Harvard Human Rights Program. I appreciated the fact that the human rights program had taken steps to include lesbian/gay rights issues under their human rights umbrella. There are still those active in the international human rights community who refuse to recognize sexual minorities as people in need of human rights protection.
As a participant in the human rights program I attended a debriefing session at the end of the summer in which the entire group of grant recipients shared stories from their summer experiences. The professor who chairs the program was on hand.
One of the women described her internship working on women's issues at the United Nations. In passing she commented on the catastrophic role the Catholic church has played in the arena of women's rights. Her comments were seconded by another woman at the table.
Just then the professor leaned back in his chair and in a loud, booming voice challenged the women to re-think their impression of the role the church had been playing. Wasn't it better to look for commonality between groups with competing interests? Don't we need to sit at the same table as those who have different opinions if we want progress? Shouldn't we be celebrating the World Population Conference as a huge success? Wouldn't the kind of attitude they were demonstrating in speaking negatively about the church just alienate a very powerful actor? Shouldn't we look rather to the great strides the church has made in defending human rights in places like Latin America?
A lively debate ensued. The professor's position was supported by only one other person at the debriefing--a former Jesuit priest. They were two of only three straight (actually I think the priest might be a celibate gay man) white men present.
As a gay person I was very incensed and frustrated by the professor's position and his lack of respect for the first-hand experience of the woman who had been privy to the church's communiqus on women at the UN. As a gay person I was irritated by the implication that I was supposed to seek commonalities with an institution and a tradition that calls me a sinner and legitimizes my persecution.
I told the professor and the former priest about a gay Catholic group in Minneapolis called Dignity. Members of Dignity wanted to work at reconciling their religion with their sexual orientation. But the church denied them a place to meet. The Catholic church told their own members--people who wanted to remain Catholic--that they could not use the church's facilities to meet because they were homosexuals. How could they be talking about looking for commonalities when people are denied a spot at the table? I asked.
It was then that the priest leaned over and whispered in my ear--secreted from the attention of others present. He wanted to let me know that in fact there were two gay Catholic organizations: one called Dignity, the other called Courage. Members of Courage would be allowed to meet in the church because even though they are homosexuals they are not practicing homosexuals.
"HUMAN RIGHTS FOR ALL NON-PRACTICING HOMOSEXUALS" is not the banner I want to march behind.
I am in the group. I am at the table. But still my cause is not fully understood and my colleagues feel comfortable suggesting, with a whisper in my ear, that what I have done with my lover hours before is immoral, dirty, and a reasonable basis on which to exclude me.
rAdiCaliZed and ALONE
The final unit in my contracts class dealt with relational contracts. I was excited at the prospect of finally having a forum in which lesbian and gay issues could potentially become the focus of a class discussion. Who more than lesbian and gay people could
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possibly have a greater stake in the law as it relates to relationship agreements. Given the bar on lesbian and gay marriage, contracts which regulate personal relationships are the sole means for gay and lesbian couples to infuse the law into their partnerships.
I was disappointed to discover that, once again, I would need to inject "gay" into the discussion if I wanted the topic raised. And I did.
My hand went up as one of the students finished commenting on what a stupid idea relationship agreements were and how she did not want her tax money going to the adjudication of things like who was supposed to take out the garbage. Her words reflected the general tenor of the entire discussion: Relationship agreements were for 70s feminists and rich men; frivolous attempts at regulating what we post-modern, Reagan babies knew was unmanageable--feelings, commitment, relationships.
I tried to let the class know how important relationship agreements could be for lesbian and gay people. I told them that I didn't appreciate my tax dollars funding a divorce court which closed its doors to me and my kind. I stressed that relationship agreements could substitute for the background rules which apply to straight couples but not to gay couples. I said that relationship agreements were not frivolous, but in fact had real meaning and significance for people whose relationships are invisible to the code and common law.
No one else said the G-word. The discussion continued. Where are all the gay people in my section? I thought. Why is it May, eight months into our year together, and I am still the only person to have uttered the G-word in class? Are people uninterested, apathetic, scared? Why didn't another gay person at least come up to me afterward and acknowledge my attempt at raising our issues in class?
The gay student community at law school is much different from my community at home. Where I am from gay people kiss and touch. They take chances. They are out and loud. They are self-respecting and principled. They are caring and compassionate.
While it is difficult to generalize, there are, I think, characteristics of the law school gay community which make it distinct. This, it seems to me, is the "gay elite." We busy ourselves with sophisticated inquiries into the construction of our identities rather than committing and working for any one agenda. We accommodate the straight power holders and protect the closets of our "straight-acting" sisters and brothers. The bottom line is our pocket book not our self-respect. We are proud GUPPIES.
At a recent Lambda meeting (Lambda is the gay, lesbian, bisexual, transgendered student organization on campus) the gay and lesbian student community engaged in an hour-long discussion on the use of the words "queer" and "transgendered." Some members felt that the use of either term was off-putting and would prevent some people from coming out and affiliating with our student organization. In addition, they did not see any connection between themselves and transgendered people. This discussion made me feel like I was from Gay Mars. I was frightened by how willing the white gay male elite is to sell out our fringe elements in order to protect our own and get our piece.
Although changes, if any, in my behavior and beliefs since arriving here have been in a conservative direction, coming to law school has radicalized me.
a positive note to end on
I have spent most of this ink whining. As an out gay man at Harvard Law School I feel there is a lot to whine about. I make no apologies for that.
However, my tale would be incomplete without mention of the great advantage I have as an out gay man studying the law: the privilege of peering in from the periphery. I have a rich and full history of experiences with the traditional values which continue to inform our society and our law. Yet, the fact that I am gay kept me from ever fully integrating into the culture around me or espousing those values as my own. Although I participate daily in the dominant culture, my position is on the periphery. And as someone who is marginalized in this way I am in a unique position to observe and critique that which is at the core. I have come to embrace this position as something valuable, something unique to me as an out gay man.
I have learned, too, that the law can be my protector as well as my oppressor. I close ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 258---------------------------------
with a final story to demonstrate the positive power of law.
I was taking a cab from the airport to Woodbury, St. Paul's most easterly suburb, dreading the fare and wishing I had arranged to be picked up. I had spent the week in New York at the International Lesbian and Gay Association World Conference. I was both pumped and exhausted from the stories I had heard about gay people around the world.
The most clearly etched image I brought home from the conference was that of a gay man from China. He sat on the panel of people from Asia, dressed in a bright red t-shirt, his black hair falling squarely on his forehead. He told, through an interpreter, as the cameras clicked and the videos rolled, about the dangers of being "found out" in his country. How a conviction on "hooliganism" commonly leads to jail time and "re-education" for gay men and lesbians. And when he was finished, a member of the audience asked: "What about the cameras, the videos? What if they discover you were here?"
"I am not afraid," he answered. The auditorium roared with applause and then fell anxiously silent.
Now, back in Minnesota the scruffy cab driver asked me where to. When I told him I was headed for Woodbury he smiled and launched into a detailed story of the night before: He had "pushed around" his girlfriend--"well, let me be clear. I mean, I didn't really beat her up or anything. I'm not that kinda guy. I think guys like that's gotta problem..."--and now her mother, who lived near Woodbury, wanted a word or two with him.
"Oh god, please don't tell me this," I thought as my brain scrambled for the politically correct response. Should I get his name and call the cops? What did he mean "pushed around"? I did my best to compliment him on every phrase that signaled respect for his girlfriend and register my disapproval of anything that suggested the opposite.
It is an awfully long way from the airport to Woodbury and just as we were approaching the exit off of 494 our conversation died down and he popped the question: So, where had I been? What did I do?
A moment's panic: a lump formed in my throat, heat rose in my chest, my face was flush and I cleared my throat to buy time. Did I really have to come out to a woman-beating taxi driver? I pictured myself on the exit ramp, bag flung in the ditch, spit on my face.
And then suddenly I remembered my revenge: "I'll sue the hell out of the cab company," I thought. Minnesota has a human rights act that protects lesbian, bisexual, transgendered and gay people against discrimination. I remembered the words of the Chinese man in the red shirt, and I was privately embarrassed for allowing the option of hiding the truth to ever cross my mind.
"I was in New York for the gay rights march on the United Nations and the International Lesbian and Gay Association's annual conference," I replied clearly from the back seat, ready to fire back at any hostile remarks.
I am not afraid.
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