The Love That Need Not Name its Speaker


David M. Munsey{1}

"I've always said [homosexual] was just an adjective. It's not a noun, though it's always used as a noun. Put it the other way. What is a heterosexual person?" I've never met one....I'm in favor of any form of sexual relationship that gives pleasure to those involved. And I have never heard a convincing argument to the contrary."

-Gore Vidal{2}

Ethics and Individuality are two topics currently everywhere out of fashion. The "morality" of the self-styled Moral Majority and its fellow travelers among the Pentecostal white trash, various Churches of Aryan Nations, and Contractors with America is closer to a Nietzschean lampoon of the religion of ressentiment{3} than anything a sane person could glean from the Gospels and the Constitution. In academia and elsewhere there is a self-styled Left who declares values "relative,"{4} denounces individuality, and praises multiculturalism, a theory that advocates people emphasize their differences from others (racial, religious, and ethnic) and form discrete exclusive groups where the well being of the tribe supersedes that of the individual. Diversity is celebrated unless one happens to disagree, in which case one is censored and denounced zealously. The tolerance is along the lines of leftists such as Stalin and Mao rather than Locke or Jefferson. These groups have a lot in common with the rightwing rejectamenta they despise, indeed critic Harold Bloom has dubbed multiculturalists "the School of Resentment."{5} Of course this "Left" is reacting to actual history of oppression, as opposed to the lunacy of asserting that "reverse discrimination" has put African Americans in a superior position to whites, and the lunacy on stilts of denying the Holocaust indulged in by the Right. In the middle are the unconscious Silent Majority of Richard E. Nixon.{6} What does the person who is homoerotic do if she or he wishes to live an authentic existence as her - or himself? The only possible relations with the Right are violent since they are beyond the rational, ergo beyond suasion. The Left, as described above, is only open to those willing to label themselves, and thereby reduce their selves to some virtual non sequitur as "lesbian of colour."{7} The mob is capable of being educated, but actually joining the herd would be a renunciation of individuality. The answer then is to look nowhere outside for help and to be yourself. This can be a terrifying prospect, and few persons of any sexual orientation or in any historical epoch take this path. Those who do are known as individuals.

In this paper I shall examine the essentialism/social constructionist debate in Gay and Lesbian Studies. I shall begin by surveying the current philosophical and legal literature as to how it answers the question "What is homosexuality?" and examine some various classification schemes proposed in attempting to arrive at an answer. I shall then explain what version of

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essentialism I intend to explore and why it is germane to this topic. A brief metaphysical analysis will yield the conclusion that even if there are essential categories and/or essential properties, homosexuality is not one of them because sexual orientation exists along a spectrum as opposed to a binary either/or, hetero/homo duality, and it is capable of changing in the life of an individual. Jean Paul Sartre's ethics of authenticity are then put in the context of western thought and explicated in some detail to provide a framework in which the ethical and psychological implications of the debate can be analyzed for both homoerotic individuals and society in general. The result will be that it is dehumanizing to allow society to reduce a diverse group of millions of individuals to a single stereotype, and that it is an inauthentic retreat from responsibility and an emotionally full existence to objectify one's self, or allow others to objectify one. The legal and political consequences of abandoning essentialism are shown to be less deleterious than those who urge an essentialism/equal protection nexus assert. A merging of gay and lesbian political activism with other groups in opposition to the ruling elite and its minions on the religious right is urged to facilitate psychological well being, and pragmatically advance the cause.

How homosexuality is understood is important to lawyers for two reasons, both relating to how they represent their gay and lesbian clients. The essentialism/constructivism debate is at the cynosure of the equal protection question, many legal theorists argue that an essentialist outcome is necessary to gain suspect classification which would result in strict scrutiny of laws that classify on the basis of sexual orientation. More generally, attorneys must deal with their gay and lesbian clients as individuals, their view of the nature and relative importance of a person's sexual orientation will affect their ability to understand and serve their client. Further, the way gays and lesbians are portrayed in court, and in the opinions of courts will have a potentially enormous effect not just on how the law will view homosexuality, but on how society at large will think about it.{8}


The question "What is homosexuality?" has been answered in a variety of ways by many different theories in recent gay and lesbian studies and legal literature. In order to understand these answers, it is important to identify, and distinguish among several ongoing debates, some of which overlap one another. Two of the more traditional debates have to do with the causes of homosexuality, or its etiology. The most familiar is what is commonly called the nature/nurture debate. This debate concerns the question of whether homosexuality is biologically determined or the result of a person's rearing and early childhood experiences. Those who hold the former position focus on genes, hormones, or pre-natal causes. Most of the nurture theories are rooted in some form of psychoanalysis, although sometimes the culture itself is implicated. Both nature and nurture theories assume the resolution of a logically prior debate, that of determinism vs. choice, in favour of the former. Determinists, whether they adhere to nature or nurture causes, claim that a person's sexual orientation is an immutable trait determined by

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factors beyond her or his volition, ergo beyond their moral or legal responsibility. The alternative is that it is a voluntary choice, that is capable of being changed by an act of will. While those on either side of the nature/nurture debate have already concluded that sexual orientation is determined, those who claim it is a personal choice avoid the nature/nurture debate altogether, rejecting both sides. In many discussions, the actual debate is between biological determinism and choice, or psychoanalytic causes and choice, but it is important to sort out the various claims.

The other major debate that more directly answers the question, "What is homosexuality?" is often referred to as essentialism vs. social constructionism. This is more metaphysical than scientific. There are many subtly different versions of this debate (and a set of definitions for each author on the subject), but they all centre on how homosexuality is defined.{9} Essentialists assert that homosexuality is a core trait, that is an intrinsic, objective property that does not vary across cultures or history. Social constructionists claim that the concept of homosexuality is culturally dependent and cannot be understood, even does not exist, independently of certain cultures and historical periods.{10}

One school of thought, represented by Daniel Ortiz, claims that the essentialism/social constructivism debate is independent of the causal debates in the sense that either essentialism or constructivism can be combined with any of the causal theories biological determinism, nurtured determinism, and voluntary choice.{11} He articulates six categories which he posits represent each of the six combinations. They are laid out in the table below.

group determined/choice nature/nurture essent/constr _______________________________________________________________ Republican choice --- constructed

Christian determined nurture constructed children

race determined nature constructed

biological determined nurture essential eunuchs

biological choice --- essential mother

biological determined nature essential sex

According to Ortiz, a person chooses to become a Republican or a mother,{12} and whether someone is a member of one of the remaining categories{13} is decided for them by things beyond their control-genes in the case of race and sex, other people in the case of Christian children and eunuchs (he assumes no one chooses to be castrated). Ortiz avers that a person's biological sex, whether she has borne a child, and biological eunuchs are all essentialist categories, because they do not vary across history or culture. There have been men and women for centuries.

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While it is easy to see that the category of Republicans is tied to a very specific time period and culture (part of the 19th and 20th Century America), and the category of Christian children, while broader than that of Republicans, is still limited in time and culture-dependent, the category of race is more problematic. Ortiz says, "While simple skin color and other physiological features may remain stable categories across time and culture, the roles, expectations, and meanings race typically implies are not. A black person enjoys a completely different social role in early modern Africa than in contemporary American society."{14} To my reading, however, he misses the key distinction, in equatorial Africa before the arrival of Europeans,{15} persons were not "black" for any relevant social purpose, in a society where all persons are black, there is no difference. Ortiz draws the distinction between biological sex and gender, claiming that biological sex is essential and gender is socially constructed. A society that makes no distinctions based upon sex cannot be cited, a hypothetical one, however, could be constructed. In the future (perhaps) menstruation could be eliminated, even now a woman need not carry her own child, but some woman must. This too is subject to change in the future, but one wonders if all differences could be effaced.{16} But if Ortiz is correct about this, then there is both an "essential" (biological) component to race and a socially constructed one. According to Ortiz, this is also true of homosexuality. If being "gay"{17} is defined as having same-sex desire (being homoerotic), then it is culturally and historically independent, or essentialist. There is plenty of evidence of homoerotic behaviour in other cultures and historical periods, most notably Ancient Greece.{18} On the other hand, if being gay means denying the validity of traditional gender roles, or being a member of a group on the periphery of society, then it is culturally dependent and hence a socially constructed property. From this Ortiz concludes that each of these positions, essentialist and constructivist, are merely different descriptions of homosexuality that serve different purposes. If one wishes to show that homosexuality has always existed and been accepted by many cultures, to combat current homophobic attitudes, an essentialist description works best. If one is trying to mobilize a political group or create a new culture, a social constructivist description may work better. Ortiz takes a pragmatic approach to the issue, stating, "There is a grand debate only if one demands a single master description of gay identity to serve all purposes. But if that is the case, the debate has meaning but no victor. Our purposes of description are simply too various and complex for any single description to serve."{19} This begs the question by assuming that essentialism, which claims that homosexuality is a single unchanging property, is false. Only social constructionists are free to choose pragmatically, because they hold there is no fact of the matter. This option is not open to essentialists. I shall argue later that even if Ortiz is correct in his assumption that essentialism is false, the ethical and psychological implications of choosing either an essentialist description or social constructivist description need to be factored in along with the pragmatic political and legal ones.

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Ortiz' categories are somewhat simplified, but they do help sort out the various strands of debate in the literature of gay and lesbian theory. The philosopher Richard Mohr draws the lines somewhat differently, identifying two kinds of social constructionism, each with two subspecies, in his book Gay Ideas.{20} The first he calls antirealist social constructionism, which he defines as the view that "no one could be considered of some sexual orientation without taking into account causal forces from society or culture, forces that vary from culture to culture and within the same culture over time."{21} This is a theory of the causes of sexual orientation that opposes the theory that the sole cause can be found in nature. It can be put rather awkwardly into Ortiz' determined/nurture/constructionist category. One subspecies of this theory as identified by Mohr is labeling theory, which says that once a person is assigned a label, others treat that person as such, and the individual so labeled takes on the traits of the label. Mohr believes he refutes this theory as applied to homosexuals because of "the closet." Many homosexuals do not exhibit the stereo-typical traits of homosexuals, indeed it is often difficult to identify a gay person unless they announce it.

And since many homosexuals do not come out of the closet, they are never labeled as gay, yet they still engage in gay behaviour, even if it is in private. However, while labeling theory is inadequate to resolve the entire issue, it does demonstrate the deleterious affect of labels and stereotypes, not merely on those who accept them directly, but also the affect from being treated as an object by those outsiders who accept the label's validity.{22} The second subspecies of antirealist social constructionism Mohr identifies asserts that social concepts of what homosexuality is are at least necessary (even if not sufficient) for homosexuals to exist. This position, associated with Michel Foucault, is defended by the philosopher Ian Hacking and can be summarized as the notion that for a person to be able to perform an intentional act, he must perform that act "under a description."{23} Mohr explains, "If a homosexual activity is intentional activity, so it is claimed, then the homosexual must have a description of the homosexual in mind in order to perform homosexual acts."{24} Mohr's argument against this position is that people have been performing homosexual acts long before the word came into existence. Even without the word 'homosexual' people still have the concept "a person with desires for sex acts with partners of the same biological sex." This seems to be the definition of homosexuality Mohr wishes to adopt to avoid the social constructionist theories and he uses it throughout the chapter.

The second main type of social constructionism Mohr identifies is what he calls antiessentialist social constructionism. This is a purely definitional theory that asserts that there is no culturally neutral, objective definition of 'homosexuality'. It says nothing about the causes of homosexuality, it is merely a claim about the concept-what it is to be homosexual. He then divides this into two subspecies. The first is "no content nominalism"{25} which says that the word 'homosexuality' is non denoting; it does not pick out anything in the world because the concept is context-specific, so always

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changing. Mohr's response to this is that if it were true, there would be no such thing as homosexuality because the term would have no content, thus making it impossible to discuss, define, or study. Since Mohr implicitly accepts the definition of homosexuality as same-sex desire, he easily dismisses this position. The second subspecies of antiessentialist social constructionism Mohr calls "fine textured nominalism."{26} This is the view that 'homosexuality' is so specifically defined that it could only exist in modern culture because it is defined by modern concepts. He uses the example of 'hippie'. If one tethers its definition to beat-up Volkswagens, one, by necessity, is not going to find hippies in the Roman Empire. But if you define "hippie" in a culturally neutral way so that the thesis that hippies did not exist in the past has bite, then it is at least possible, conceivable, thinkable, that there were hippies in the Roman Empire; and if one specifically defined "hippie" in culturally neutral terms such that hippies are communally living, socially detached spiritualists, then it is at least arguable that we should consider the early Christians as hippies.{27} As one might guess, Mohr falls back on the definition of 'homosexual' as "the desire for sexual relations with members of one's own biological sex," to escape this brand of social constructionism.{28}

Another view of the essentialist/social constructionist debate is given by Janet Halley.{29} Although the causal and definitional strands of the debate may be logically independent, they may not be politically so. Halley divides the political debate into four positions

* Pro-gay essentialism holds that because homosexual orientation is fixed, immutable, and definitional, it should be protected from discrimination. * Pro-gay constructivism holds that all forms of sexual orientation are mutable, either across an individual's life, at some important moment of personal choice, or across historical periods, and that social policy on sexual orientation should not impede these variations.

* Anti-gay essentialism holds that homosexual orientation is fixed, immutable, and normatively bad or sick, either in itself or in its manifestation, and that society should tailor discrimination against gay men and lesbians to express normative judgments, deter manifestations of homosexual orientation, or cure homosexuals of their illness. * Anti-gay constructivism either emphasizes the mutability of heterosexual orientation, arguing that heterosexuality must be shored up by anti-gay discrimination, or points to the mutability of homosexual orientation, arguing that discrimination should be designed to convert gay men and lesbians to heterosexuality.{30} Halley focuses on the determined/choice debate, initially declining to enter the nature/nurture debate, and linking determinism to essentialism and choice to social constructivism. By focusing on the political aspects of the debate, she emphasizes what is often considered important in that arena-the question of whether homosexuality can be changed.

Halley later fine-tunes her definitions of essentialism and constructivism, claiming that there are really several different versions of each theory staking out various positions between the two extremes. She does this in order to make the claim that the two theories are not mutually exclusive in the forms most

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commonly advocated, and that a common ground may be found from which gays and lesbians can launch their legal arguments. Halley divides essentialism into two kinds-strong and weak essentialism. Strong essentialism claims that there is a natural or biological trait that identifies and forms the essence of a thing. Weak essentialism claims, more generally, that there is such an irreducible, identifying trait, regardless of its source, without which that which has it would cease to be that thing.{31} Halley adopts Carol Vance's classification of constructivism, identifying five different types that "differ in their willingness to imagine what was constructed."{32} Social meanings constructivism regards sexual object choice and its attendant behaviour as fixed, claiming that different societies give this behaviour different meanings. Behavioural constructivism regards only sexual object choice as fixed, claiming that the behavioural patterns available for satisfying this desire vary across cultures. Gender-of-object-choice constructivism holds that sexuality is pre-determined, but the object of desire is socially determined. Sexuality constructivism, as advocated by David Halperin in his book One Hundred Years of Homosexuality and Other Essays on Greek Love,{33} claims that only the raw physical capacity for erotic pleasure is innate, and that the organization of this physical capacity into a concept with attendant meaning is socially constructed. The most extreme form of social constructivism is advocated by the late Michel Foucault. Halley calls it sex constructivism and it is the claim that "the sheer recognition of certain bodily sensations as sexual is constructed."{34} Halley argues that all but sex constructivism are compatible with weak essentialism, since they all regard something as essential. She chooses behavioural constructivism as the "common ground" from which pro-gay essentialists and constructivists should litigate, devoting the remainder of her article to the reasons why.

Yet another type of essentialism discussed in the literature is specific to lesbians and is articulated by Patricia Cain.{35} Its more general version can be called gender essentialism, which is a feminist theory that claims that there is a universal "woman's experience" common to all women which is independent of race, class, sexual orientation, and other aspects of life.{36} Ortiz identifies this as the essentialism/antiessentialism debate, arguing that it is similar to the constructivist debate in that it is a reaction to what is perceived as an over generalization.{37} Constructivists deny a universal gay identity over time and history, but do not have to worry about being labeled as the same as other "straight" men. Since historical lesbian stories are virtually nonexistent, lesbians are not generalized over time, but they are lumped in with other women regarding contemporary issues. Cain argues against gender essentialism, but endorses the more specific lesbian essentialism-the position that there is an essential lesbian experience common to all lesbians. She has two reasons for this that I shall discuss later in light of some further understanding of essentialism and its ethical implications.

The previous survey demonstrates the variety of "essentialisms" discussed in the literature, and how they relate to various versions of social constructivism to form a "grand debate." However, I shall argue that both sides of the debate

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are mistaken, because they each attempt to define a discrete identifiable thing that they wish to call "homosexuality." The essentialists are mistaken that such an essential property exists, and the social constructionists, albeit conceding that any imagined trait is socially constructed, overemphasize the trait allowing homoerotic persons to be reduced to nothing more than "homosexuals" by their enemies, and in some cases themselves, with catastrophic psychological and political consequences. In order to make these arguments more clearly, a more precise understanding of essentialism is necessary. METAPHYSICS

In this paper I am concerned with what I characterize as metaphysical essentialism. This is very similar to what Halley chose to designate as "weak essentialism." I shall now consider this question. Although my conclusions will be anti-essentialist regarding homosexuality, they will not follow from an ontological or metaphysical anti-essentialist starting point. That is to say I shall not argue from a metaphysical stance that essentialism is false, i.e. there are no essential properties, ergo homosexuality is not an essential property, that would be of no interest to the homosexual debate. I maintain specifically that homosexuality (and heterosexuality and every orientation in between) is not essential to a person's core identity, in some sense it is a social construction.

One distinction must be made before we consider the argument proper. It is the distinction between species and individual members of that species. The former are referred to by natural kind terms, the latter by proper names. Proper names, as we all know, refer to individuals and can be uses to pick out specific, identifiable things (e.g. Bill Clinton, Reed College). Natural kind terms refer to classes of individuals, and can be used to pick out discrete, identifiable classes (e.g. tiger, human being). A natural kind is a class to which a name refers. Many groups, such as southpaws or blondes are not natural kinds, because they are not determinative in terms of an individual's identity. Jean Harlow not blonde is still Jean Harlow, Jean Harlow not a human being is (literally) something else. The difference is best understood in terms of essential properties as possessed by individuals.

A "Black Letter" definition of essential property is a property that something cannot lose without ceasing to exist.{38}

Would that I were to have a different genetic code, I would no longer be the David Munsey who matriculated here in 1993. My genetic code is then an essential property of me. On the other hand, if Clinton had lost to Bush, he would still be Clinton, he would just lack the property of having been elected President. Catastrophic perhaps (to him), but to him, not someone or something else. So Clinton's being President is just an accidental property of him. To consider this we must bring to bear our intuitions on counterfactual situations or how we would describe other possible worlds. We can borrow a heuristic device from the logician and philosopher Saul Kripke{39} and imagine other possible worlds. A possible world (for our purposes) is the way this (the real) world might have been had some contingent event transpired other than it did. If there is no such possible world, then the event was not contingent, but necessary. We ask

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ourselves, for instance, "If Dave Frohnmayer had been elected Governor of Oregon in 1990 in a world as close to this one as possible, given that one change, would that object who is Governor still be Dave Frohnmayer, i.e. THE Dave Frohnmayer?" I think the answer is obviously that he would. A less convoluted way of looking at it is to ask whether it is possible in this world that Frohnmayer had won the election. Contrast that to the question of the world where 'Dave Frohnmayer' refers to a lion in the London Zoo. In that world there is no counterpart to the object that is currently (Spring, 1995) President of the University of Oregon. Intuitively, whether Mark Hatfield is straight or gay or in between, he is the same person who was elected Governor, feuded with Tom McCall over Vietnam, angered Bob Dole and others over his holdout on the balanced budget amendment, and so on. Even Hatfield as Pro-Choice Hawk is still Hatfield, but if 'Mark Hatfield' referred to a square in Venice in some other possible world it would be a different object. There would be no counterpart to Mark Hatfield, no Mark Hatfield (the thing we refer to) in that world. Keeping this background in mind, we are now able to proceed.{40}

Is homosexual a natural kind? Another way of posing the same question as we have seen is, "Is homosexuality an essential property of any person?"{41} Before I tackle the metaphysical problem, I shall examine the scientific, or physical findings.

Janet Halley critiques the three most important recent scientific studies that purport to demonstrate a connection between some biological trait and homosexuality.{42} They are Simon LeVay's study of hypothalamic structure,{43} J. Michael Bailey and Richard C. Pillard's study of male twins and adopted brothers,{44} and Dean H. Hamer's study of gay men's family tree patterns.{45} She carefully scrutinizes the selection and categorization of the subjects and the assumptions that were used to show that in each case the scientists have assumed rather than demonstrated that sexuality is bipolar and essential. She observes that "LeVay assumes essentialism in framing the finding upon which his conclusion is based,"{46} noting that he classified every subject in one of two categories, homosexual or heterosexual, putting a bisexual in the homosexual category (as the Religious Right and other hate groups do) and those subjects whose record did not indicate their sexual orientation in the heterosexual category on the basis that most men are heterosexual. Bailey and Pillard's study also has this flaw. Although they had better access to their subjects' sexual orientation since their subjects were alive and could be questioned, they still used only two categories, classifying all self-designated bisexuals as homosexual. Presumably for these objective scientists, a pervert is a pervert. Halley says, "[T]hey have simply assumed this bipolar model of sexual orientation."{47} Although she does not discuss the Hamer study as extensively, Halley summarizes the evidence from the study, concluding that it does not demand the conclusion that homosexuality is an immutable and identifiable property. Hamer himself said, "[W]hat we have found is a linkage between a small region on one chromosome and sexual orientation in men, and what that suggests is that part of whether a person is gay or heterosexual is influenced by the genes that they inherit. However we have not found the gene, which we don't think exists,

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for sexual orientation."{48} Thus it can be seen that the scientific evidence does not come close to proving that homosexuality is determined, much less an essential property, and even some of the scientists doubt that it is.{49} As we shall see when we arrive at the metaphysical analysis, for my purposes it does not matter whether sexual orientation is as rigidly determined genetically as eye colour, or complete caprice.

Psychoanalysis does not consider homosexuality to be a discrete property. Lionel Blackman says, "Latent homosexual feelings exist in all human beings. To put it in psychoanalytic terminology, identification with the parent of the same sex is never absolute and so there is no such thing as complete or absolute heterosexuality. We all have homosexual feelings, but they are generally denied or repressed and relegated to the unconscious mind."{50} That sexual orientation exists along a spectrum, as opposed to dividing the world into two mutually exclusive camps of homosexual and heterosexual, is obvious even to those who reject Viennese witch doctors.{51}

As soon as one attempts to define homosexuality and identify homosexuals, it becomes obvious that there is no single trait which allows one to pick them out. In addition to the metaphysical problem, there is an epistemological one. Janet Halley captures the problem nicely, stating

None of these distinctions predetermines what the essence of sexual orientation is. Some people define a "homosexual" as a person who entertains desire for erotic contacts with a person of the same sex. Others require same-sex fantasy, as well or instead. Still others require actual erotic contacts, and there is a lot of disagreement about whether it takes one contact or many, recent contacts or any, to make a homosexual. Finally, the problem of identity vexes any effort to establish all important aspects of homosexual orientation as unchanging. If a person has a lot of same-sex contacts, desires them and fantasizes about them, but does not imagine himself to be gay, or a homosexual, or bisexual, is he wrong? And public identity has its own range of mutabilities largely regulated by the closet and the rule that anyone not designated homosexual is by default construed as heterosexual.{52}

The fact that one cannot even pick out a candidate definition of 'homosexuality' that captures most people's intuitions and does not ignore the existence of bisexuals, is strong evidence that sexual orientation is not bipolar.

As is almost always the case with metaphysics, the question as to whether homosexuality is or is not an essential property must be ultimately adjudicated by individual intuitions.{53} That does not mean that we do not have a clear criteria. As stated above, an essential property is a property that something cannot lose without ceasing to exist. This may seem like a very exclusive category, but this is what an essential property is, and this is what the debate is about in Gay & Lesbian Studies. If homosexuality is an essential property, it would be (literally) impossible for a person to change it, the legal and ethical implications of this are manifest. As I also said earlier, a natural kind is a group of individuals that share some essential property. An example would

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be that all and only those objects that have the property of possessing an atomic number of 79 are gold. Having the atomic number 79 is what makes gold gold, as opposed to say iron pyrites.{54} If something ceases to have the property of possessing an atomic number 79, it ceases to be gold. Possessing an atomic number 79 is therefore an essential property of those things that have it, and those things constitute the members of a natural kind.

Is homosexual a natural kind? Is homosexuality a distinction such that if an individual who has the attribute of (say) being homoerotic, or engaging in acts of homosexual sex, ceased to have that property, she or he would cease to be that individual? We will look at some examples of individuals who lose essential properties (gold and a tiger) and those who lose contingent (or accidental or non-essential) properties (hair colour and wine preference) and see which homosexuality most resembles. Imagine five individual objects on 15 March 1995 a wedding band with an atomic number of 79, a pet cat that is a Bengal Tiger, a middle aged man who is exclusively homoerotic in mind and deed, a teenage girl with long strawberry blonde hair, and an elderly man who prefers Chateau Lafite-Rothschild 1970 above all other clarets. In all cases these individuals are commonly identified by the properties that I have attributed to them. The question is the nature of the properties, i.e. are they essential or contingent? If they are essential it would be impossible for the individual to lose it without ceasing to exist. On 15 April 1995 we have five individuals that are purported to be the same five individuals observed a month earlier in the Ides of March. We have a wedding band that possesses an atomic number of 78, a pet cat that is an African Lion, a middle-aged man who is exclusively heteroerotic in mind and deed, a teenage girl with short raven black hair, and an elderly man who prefers Chateau Lafite-Rothschild 1961 above all other clarets. Now is it possible in each case that we have the same individual? If it is even possible, then the property they had a month ago but no longer possess was not an essential property.

The wedding band is clearly a different object, it now consists of platinum rather than gold. If its possessor claims it is the same object merely transmogrified by alchemy, try purchasing it at the current Zürich gold price. The second individual, the lion, is also obviously a different individual from the tiger of a month ago. There is no satisfactory explanation to the contrary. The latter two cases, however, do lend themselves to such explanations. The teenage girl became ensorceled by Joan Jett and became a "Joan clone" via a haircut and dye. The Bordeaux connoisseur heard that John Steed of The Avengers favoured the 1961 vintage. There are numerous other possible explanations for these changes, the point is that in these cases it is not impossible that we are seeing the same individuals because the properties that they lost were not essential properties.

What about the middle-aged man? Is it possible{55} that his sexual orientation changed in a month? The above discussion of spectrums and the life histories show that it is. It is not a contradiction to say of someone that David Bowie used to gay, but now he is straight. It could be true, it could not be true of

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any individual that they used to be a tiger, but now they are a lion, or that they used to have a certain pair of biological parents, but now they have a different pair.{56} Homosexual is not, therefore, a natural kind like gold or tiger, but a contingent (if in some cases very important) property that like hair colour and wine preference can change over time.

Homosexuality is not an essential property because it is neither a natural kind term nor a stable property at all, either as a category or in the life of specific individuals. Sex preference is not divided between a majority of exclusively heterosexual persons, and a minority of exclusively homosexual persons. In the case of individuals it is not the case that all persons have a specific place on the spectrum where they remain for their entire mature life. Sexual preference is more akin to an appetite than a property. Gore Vidal once confided to an interviewer that his first sexual experience occurred when he was eleven. When asked if it were heterosexual or homosexual, Vidal replied, "I was too polite to ask."{57} In Vidal's experience then, sexuality is natural, while society, or some self appointed representative, must more or less arbitrarily classify various aspects of it to suit their purposes, often nefarious.{58} In Ortiz's terminology sexuality is thick while the spectrum of preferences is (perhaps, if anything) thin. Society historically labels others (such as southpaws) for being different. The difference need not be essential, only discernible. It takes traits that obtain along a spectrum (ambidexterity is ignored) and lumps all deviations from the pure norm (righthandedness) as unorthodox (lefthandedness) and evil (sinister in the case of southpaws). This does not make the property essential, it is only important because the ruling class and the mob assert it to be so, and act upon it in ways deleterious to the scapegoated minority. Of course heterosexuality is not the most common practice anyway-masturbation is.{59}

Race in the United States is an excellent illustration of this. As we saw earlier, race cannot be essential irrespective of time and place. In the nineteenth century United States there were, as today, persons of varying skin colour from black to what we call white (or "flesh" to emphasize what is normal). Nonetheless there were, socially and legally, only two races, and a barely secernable amount of African origin ("Negro blood"), such as one thirty-second, made a person a member of the minority race. This was very bad even after abolition and unspeakable before. A person was subject to public auction. Homosexuals are in this unenviable position today (not subject to public auction, but a hated and legally inferior{60} minority). 'Homosexual' equals 'pervert' rather than 'sinister' or 'nigger', but it is all the same thing.

It is the sign of fanaticism that any heterodoxy is the only heterodoxy (e.g. believing all one's political opponents are communists), by which I mean as in the above examples of southpaws and Negroes, any deviation from exclusive heterosexuality is homosexuality. The person with eight opposite sex lovers in a decade, and two same sex lovers is classified the same as an exclusive homosexual, namely a pervert or a deviate. It is also interesting, albeit unsurprising, to note that having made this deviation a crime, it is then (incorrectly according to all available studies) assumed homosexuals are more likely to

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engage in other criminal deviations such as rape and child molestation. It is always the minority's property that is considered essential, like a defect or a disease. A person's flamboyant behaviour is commonly explained by the fact he or she is a homosexual. Many people find this to be plausible, no one would find the proposition that someone's flamboyant behaviour was caused by his or her heterosexuality. This is social conditioning, one is as absurd and reductive as the other.{61} To reduce several individuals to a group with one trait makes it far easier to persecute them. They become less human, ergo easier to destroy. We have such objectifying epithets as "Krauts," "Japs," and "Gooks" that facilitated killing our "enemies" from recent wars as examples. Society, in this case the Christian Right with the acquiescence at least of the ruling class, is on a campaign to turn persons whose sexual orientation deviates from exclusively heterosexual{62} into objects to be hated, discriminated against legally, and denied full human status. It has not been a total failure unfortunately. There is then a contingent and under inclusive group called "homosexuals" in our society. Many persons in it are homoerotic, others may be merely cross dressers, athletic females, persons who enjoy gay or lesbian culture, and so on. This group has been created by the persecutors of persons with (most of them anyway) a sexual preference other than exclusively heterosexual. As I have argued there is no discrete group that is essentially non-exclusively heterosexual. There is no doubt that the majority of people in the United States believe otherwise to the detriment of a minority. The question to which I now turn is whether those in the oppressed group, those who are not exclusively heterosexual, should embrace this category (with modifications), or reject it.


The metaphysical issue has been settled, homosexuality is not only not an essential property, but there is probably no meaningful stable accidental property that embraces all those persons who are not exclusively heterosexual. I shall examine the moral and psychological implications of embracing a group identity in light of Jean-Paul Sartre's ethics of authenticity. Authenticity, a key ethical concept in twentieth century ethical thinking, arose from the two major texts of existentialism, Martin Heidegger's Being and Time{63} and Jean-Paul Sartre's Being and Nothingness.{64} As 'being' would indicate, these massive tomes are primarily concerned with ontology, however, by presenting such a complete picture of human existence, both authors have depicted what it is to be a self and posed questions about the integrity of the self in the world. Before I begin an exegesis of Sartre's theory of authenticity{65} I shall present a "Black Letter" definition of authenticity, then take a quick look at its origins in German thought.{66}

Authenticity is defined in The Oxford Dictionary of Philosophy as "The condition of significant, emotionally appropriate living. Contrasted...with inauthenticity a state in which life, stripped of purpose and responsibility, is depersonalized and dehumanized."{67} For Sartre the psychological and ethical dovetail as in Aristotle because doing what is good is good for you. This is a concept not found in

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many modern philosophers' ethics influenced by Christianity, notably Kant.

Heidegger and Sartre both agree generally that given one is a human being he or she has choices, ergo one must decide which choices are best (not choosing is seen as a choice to abstain). Both have the same basic answer, i.e. that those choices that reflect an authentic understanding of being are the best choices.

For Heidegger, the central tenet of authenticity is the acceptance, and eventually the embracing of one's own finitude. A person must be death aware and plan his or her life in light of this fact. A person must embrace her or his own death.{68} Christianity is among the most common refuges from reality sought by the mob. The dread and anxiety caused by the realization of one's temporality drives most people to just such a retreat, however, it can be better conquered by facing up to it and willing that it should be so. This solution obviously echoes Nietzsche's überman who never wishes for things to be other than they are, "My death I praise to you, the free death, which comes to me because I want it."{69} The idea also appears explicitly in Freud's 1913 essay "The Theme of the Three Caskets" where, in a pretty much otherwise zany reading of King Lear, he states that, "Eternal wisdom...bids [Lear]...choose death and make friends with the necessity of dying."{70} Prima facie, Sartre is not as straightforward on the subject of authenticity as is Heidegger.{71} We shall begin then by getting clear about what Sartre means by "bad faith" before suggesting what existential authenticity might be like.

We must start by seeing how Sartre's ethics spring from his theory of being for which he has three categories. The first is Being-for-itself (etre-pour-soi). This is defined by Hazel Barnes as "The nihilation of Being-in itself; consciousness conceived as a lack of Being, a desire for Being, a relation to Being. By bringing Nothingness into the world the For itself can stand out from Being and judge other beings by knowing what it is not. Each For-itself is the nihilation of a particular being."{72} This is what a human being is when fully realized. It is a finite creature who realizes that a human being is alone, abandoned in an absurd (devoid of objective meaning or value) universe with no values except the ones that it forges for itself out of experience. For the authentic human being one is the sum of his or her actions rather than some essential thing (see Being-in-itself), an authentic person can never say "I was not myself," to excuse behaviour because the self is just the total of its past acts and nothing more. The second category is Being-in-itself (etre-en-soi), it is "Non-conscious Being. It is the Being of the phenomenon and overflows the knowledge which we have of it. It is a plenitude, and strictly speaking we can say of it only that it is."{73} This is the being of objects. It is inauthentic to seek refuge from the responsibility to make free choices by turning oneself into an object, or by permitting others to do it (which is a choice to permit in any case.) A Secretary of State who, in the name of duty, certifies a ballot measure that he believes to be immoral, or a lawyer in the attorney general's office who, in the name of statutory obligation, litigates an issue from the side that she believes is wrong, or a concentration camp guard who, "following orders,"

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perpetrates atrocities-all three are in flight from their freedom (to choose otherwise) and in denial of the fact that by acting thus they have chosen. They seek to escape responsibility for their actions by objectifying themselves with phrases as, "I am an attorney for the state, this is what such people (things?) do." It did not wash at Nuremberg. The third category of being applies only to (inauthentic) human beings, it is Being for others (etre-pour-autrui). In this category "There arises here a new dimension of being in which my Self exists outside as an object for others. The For-others involves a perpetual conflict as each For-itself seeks to recover its own Being by directly or indirectly making an object out of the other."{74} This is a common form of inauthenticity that is intuitively recognizable to most of us. The son who goes to law school because his parents' want him to become a lawyer and the housewife who loses herself in being a mother and wife and daughter-in-law to others are two obvious examples.

Anguish is very important as key to self-realization for Sartre, as it is for Heidegger. Through anguish comes "the realization that a nothingness slips in between my Self and my past and future so that nothing relieves me from the necessity of continually choosing myself and nothing guarantees the validity of the values which I choose."{75} This latter part is all important in that it points out the absurdity or objective meaninglessness of all human values. The first part, about the necessity to continually choose, demonstrates the inauthenticity of seeing one's self as a Being-in-itself, that is to liken one's self to an unconscious object rather than a conscious being capable of changing his or her behaviour, and of making choices to change one's behaviour. Sartre's famous gambler has such an existential revelation in a brilliant passage when, after having resolved to become a non-gambler, he begins to weaken in a casino [T]he total inefficacy of the past resolution. It is there doubtless, but fixed, ineffectual, surpassed by the very fact that I am conscious of it. The resolution is still me to the extent that I realize constantly my identity with myself across the temporal flux, but it is no longer me -- due to the fact that it has become an object for my consciousness. I am not subject to it, it fails in the mission which I have given it. The resolution is there still, I am in the mode of not-being. What the gambler apprehends at this instant is...the permanent rupture in determinism; it is nothingness which separates him from himself....By the very fact of taking my position in existence as consciousness of being, I make myself not to be the past of good resolution which I am.{76}

Although similar to Heidegger, one difference in accent between the two, as I indicated earlier, is that Heidegger's inauthenticity could be seen as a flight from death while Sartre's is more a flight from freedom. Both flee to Being-in-itself and Being-for-others, however, and both are fleeing from reality. Both of these can be shown in the example of the person who practices homosexuality and a person the practice offends. The person who practices homosexuality frequently has an intolerable feeling of guilt, and his whole existence is determined in relation to this feeling. One will readily see that he is in bad faith. In fact, it frequently happens that this man, while recognizing his homosexual

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inclination, while avowing each and every particular misdeed which he has committed, refuses with all his strength to consider himself a 'homosexual.' His case is always 'different,' peculiar; there enters into it something of a game, of chance, of bad luck....The critic asks only one thing...that the guilty one recognize himself as guilty, that the homosexual declare frankly...'I am a homosexual.' We ask here who is in bad faith. The homosexual or the champion of sincerity?

The homosexual recognizes his faults, but he struggles with all his strength against the crushing view that his weakness constitutes for him a destiny. He has an obscure but strong feeling that a homosexual is not a homosexual as this table is a table or as this red-haired man is red haired.... Does he not recognize in himself the peculiar, irreducible character of human reality?...He would be right actually if he understood the phrase 'I am not a homosexual' in the sense of 'I am not what I am.' That is, if he declared to himself, 'To the extent that a pattern of conduct is defined as the conduct of a homosexual and to the extent that I have adopted this conduct, I am a homosexual. But to the extent that human reality cannot be finally defined by patterns of conduct, I am not one.' But instead of this he slides surreptitiously toward 'not being' in the sense of 'not-being-in-itself.' He lays claim to 'not being a homosexual' in the sense in which this table is not an inkwell. He is in bad faith.{77} "Destiny" of course does not obtain when existence precedes essence,{78} except in the Heideggerian sense in which it is the destiny of a human being to die. This would be fine with Sartre, but any other talk of destiny vis-à-vis a human being is a flight from Being-for-itself. But what about the champion of sincerity, the critic of homosexuality? The critic demands of the guilty one that he constitute himself as a thing....Who cannot see how offensive to the other and how reassuring for me is a statement such as 'He's just a homosexual,' which removes a disturbing freedom from a trait and which aims at henceforth constituting all the acts of the Other as consequences following strictly from his essence. That is actually what the critic is demanding of his victim-that he constitute himself as a thing.{79}

This is what the Rightwing hate groups do to individuals when reducing them to "homosexuals" or perverts, criminals, sinners, etc. In this society to be designated "homosexual" is to be reduced in the majority's eyes to a thing, a set of ill conceived stereotypes, and thus not taken as an individual. Persons like Billie Jean King and Martina Navratilova who were admired as tennis players and respected as persons before they came out found a great deal of acceptance from the average citizen when they did reveal their homoerotic proclivities. Had they been introduced to the public as lesbians to begin with they never would have been judged as individuals. Another revealing case along these lines is that of Christian Crusade founder Billy James Hargis.{80} On a somewhat grander scale, Walt Whitman is considered the greatest poet produced by the United States, Marcel Proust the century's most accomplished novelist, and John Maynard Keynes the century's preeminent economist. All of these persons projected their personalities and achievements on society to the point a later revelation anent their sexuality became unimportant.{81} The point is that individuals can be accepted

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on their own terms if they are seen as individuals, including the fact they are homoerotic, but to be introduced as merely a homosexual, a representative of a group with a label such as lesbian or communist or born-again Christian, that is to be put in a position of having to overcome a shallow stereotype. As St. Jerome admonishes, early impressions are hard to eradicate from the mind. Another classically inauthentic mode is to say that one cannot help what one is. This reduces the individual to a person incapable of free choice or responsibility. People can tell their parents for instance that they are biologically homosexual ergo not responsible. This is fine to keep financial support flowing, but not as the basis of an authentic loving relationship. It has two other problems, one is that a typical response would be that one cannot choose one's sexual orientation, but one can refrain from engaging in sin. The other is especially deleterious to those who are not only attempting to deceive others, but themselves as well, namely that it virtually concedes that homoeroticism, or at least the practice of homosexuality is bad in some way. This means that not only is the person who takes refuge in this flight from freedom bad, but it is an essential property of theirs that is bad. This can be psychologically devastating.

The above paragraph considers the effects on the individual of the biologically determined position, but what about how the group is viewed by the rest of society. First, of course, the arguably irrelevant difference is raised to paramount importance as mentioned above, but what evidence is there that the critics would be quieted? Everyone agrees that AIDS is not deliberately contracted, yet many on the religious right advocate exiling HIV-positive persons to remote islands (except those who subscribe to the theory that it can be carried by mosquitoes, they recommend more drastic measures). In the near future nothing is likely to sway the lunatic fringe, but what about the sympathetic heterosexual? James Bond, who enjoyed as wide a public acceptance, indeed respect, as any cultural figure of the early sixties subscribed to the theory that biology is sexual destiny and reflected thus

Bond came to the conclusion that Tilly Masterton was one of those girls whose hormones had got mixed up. He knew the type well and thought they and their male counterparts were a direct consequence of giving votes to women and 'sex equality'. As a result of fifty years of emancipation, feminine qualities were dying out or being transferred to the males. Pansies of both sexes were everywhere, not yet completely homosexual, but confused, not knowing what they were. The result was a herd of unhappy sexual misfits - barren and full of frustrations, the women wanting to dominate and the men to be nannied. He was sorry for them, but he had no time for them.{82}

While I fear that 007 is not educable, his public, the public, is, and they are the landlords and employers who discriminate as well as the swing vote in ballot measures. Bond's is not the sort of response most lesbian and gay activists are after. Given that it is healthier to be one's self and take responsibility for who one is, I suggest minimizing the overall differences between persons of differing sexual orientation is preferable to exaggerating and emphasizing them. Homoeroticism must be seen as no more and no less important to individuals than

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heteroeroticism, that is to say sexuality should define an individual to the extent an individual defines her- or himself in sexual terms. Don Juan and Graham Greene's priest protagonist in The Power and the Glory can both be labeled as heterosexuals, but it is hardly informative. Some people live for sex{83} while others appear to be uninterested{84} and most people are somewhere in the middle. It is the successful strategy of the hate groups to emphasize sex preference allowing them to reduce and dehumanize their victims. I believe that showing Middle America that people are not very different from themselves is the best practical strategy to defuse the attack. As William James observed, a difference that does not make a difference is not a difference. It follows that a target that does not make a difference is not a target. This is most emphatically not to follow Messrs. Kirk and Madsen{85} who show their sagacity concerning human psychology with howlers like labeling Oscar Wilde's insights "perverse"{86} and the ingredients of "half-baked political pronunciamentos [sic]."{87} As the West's leading literary critic never tires of pointing out, "...the sublime Oscar Wilde was right about everything."{88} I presume they are contrasting Oscar's wisdom to their own, which at this point in their text consists of listing, a la Pat Robinson, ten categories of moral offenses committed by homosexuals less constrained by the fetters of bourgeois morality than themselves.{89} This is followed by a stern admonition to clean up their act,{90} so that they, Messrs. Kirk and Madsen, will be better accepted by the academic community where they are currently condemned to the outer fringes, less for their sexual orientation than their slipshod work and lack of credentials I would infer from their book. Since I reject the notion homosexuals modify their behaviour in any manner that would be untrue to their selves, I obviously do not advocate that people deny their sexual orientation, only that they not be goaded into reducing their entire identity to it by a bunch of hate mongers. Of course the targets of an election campaign to deny homosexuals their rights must group together as homosexuals and fight their oppressors, solidifying their identities as (merely) homosexuals in the minds of Middle America, who rarely sees them in any other context. This cannot be avoided, at least for the nonce.

While Sartre abounds in rich illustrations of the inauthentic and rebuffs previous philosophy as being in bad faith, he does not have much in the way of a specific account of the authentic and even seems to deny it is possible, both explicitly ("Man is a useless passion") and implicitly by never writing his promised book on ethics. So the authentic is only gestured at and implied in most of the work. There is, however, one major contribution by Sartre which can be extrapolated from the late section "Existential Psychoanalysis."{91} This notion is that every human being has a true self or lifetime project of which she or he is either aware or potentially aware through introspection. This theme is that which would unify one's life into a whole but only at its completion.{92} What then is it for a homoerotic person, or for that matter any person, to be existentially authentic? One is tempted to use illustrations as Sartre himself does so effectively. It is clear that a list including Percy Shelley, Barney Frank, Jerry Brown, Molly Bolt and Sartre himself would capture our intuitions about

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authenticity while one comprised of William Wordsworth, Mark Hatfield, Bill Clinton, Daisy Buchanan, and the Nazi collaborator Heidegger would not. This is inadequate however for two reasons.

Firstly, in all cases but the literary ones we lack access to inner states, and in some cases the life is not yet complete. Secondly, it is much too vague. How do we determine cases in the gray area, or problematic ones like Hamlet, Sir John Falstaff, or Ivan Karamazov? It may not be possible to list the properties of an authentic person. Someone who is in bad faith either by reducing themselves to an object, or allowing others to do it is inauthentic.{93} One thing is clear from our discussion, there is no essential difference between homoerotic persons and others along the spectrum, so there is no essentially different answer as to how they should best live.

It is clear then that the existentially authentic hero is an individual owning up to reality and creating her or his own values as the überman does, and not the one who has "chosen" Kierkegaard's craven leap of faith. Christianity, especially the Pentecostal white trash ilk, is not only the chief haven of those who would escape the dread of freedom and individual responsibility, it is also, by no mere fortuity, a stronghold of homophobia and other hateful practices. The homoerotic or bisexual person is in the same position as the heteroerotic, he or she must become who he or she is.


I shall now discuss more fully some of the legal consequences of the positions I have been advocating. The most commonly cited legal reason for adopting an essentialist position has to do with equal protection. Many people wish to argue that homosexuals are a suspect class deserving of equal protection. This is much easier to do if homosexuals are a distinct identifiable group, preferably marked by some immutable, biological trait over which they have no control, or so the argument goes. Before I undertake an extensive critique of this proposition, I shall briefly discuss the implications of my theory for other gay and lesbian legal issues.

First I shall state the implications of my theory 'Homosexual' is an adjective that describes acts or desires when used in strict conformity to metaphysical and authentic precepts.

Many persons have homoerotic desires to some extent, this does not in the least cause them to be essentially different from persons who do not have them. The majority has tried to objectify and dehumanize those whose sexual orientation differs from theirs, this is inauthentic of them, and it is inauthentic for those who have them to allow themselves to be reduced in this way to escape responsibility for who they are. The political agenda of homosexuals and their allies (which I shall discuss in detail below) should aim through education and political action to reduce this so-called difference to the status now enjoyed by left handed persons.

Because this process would minimize difference and deny there is even such a thing as a homosexual, the "Don't ask, don't tell" would fail because there would be nothing to ask or tell. You cannot infer conduct from a status that does not obtain, and

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albeit the military will, presumably, prohibit all sexual acts under certain conditions (e.g. in combat, in boot camp etc.) and ignore all sex acts in other contexts, if sexual orientation is seen as neither concrete nor important, it will not occur to anyone to employ it as a category. I would have been philosophically inclined to take this route in the dissenting opinions{94} in Able{95} and Steffan.{96} This is a projected result of a long campaign of education, a process of changing how non-heterosexuals are viewed by everyone in society, it must begin, of course, with non-heterosexuals themselves. "The strongest of all warriors," says Tolstoy in War and Peace, "are these two-Time and Patience."

Same sex marriage and adoption would also benefit if the gender of one's partner were deemed no more important legally than the once explosive question of skin colour is legally germane today. Take, for instance, the way same sex parent adoption was facilitated in Multnomah County, Oregon. A process of education was carried out, first with the social workers who make the determinations, and then with certain judges. The education consisted in demonstrating the lack of essential differences between persons of differing sexual orientation.

Domestic partner benefits along with employment and housing discrimination would also slowly fade as the emphasis on difference ebbed out of public consciousness. The legal arguments would be based on the premise that the state or the defendant cannot do this to me or us because I or we are citizens like everyone else, rather than "we cannot help what we are so you cannot punish us for it." The latter leads to pity and contempt, and as African-Americans have found out, malicious and baneful backlash.

The voter initiatives should be the first battleground where total victory is achieved. As in the abortion rights battle, a coalition of all progressives must mobilize against the apostles of hate and intolerance and expose them to the public ridicule that they so richly deserve, and as in the abortion referendums, kick their teeth in at the ballot box. These vicious witch hunts, ironically, provide for an opportunity to educate Middle America, and thereby a loosening of the grip that ignorance and fear have upon them. When the situation is hopeless, as in small towns in Oregon, other strategies need be employed as the recent Oregon Appeals Court victory on state/local federalism demonstrates.{97}

I now arrive at the argument that asserts that an essentialist position will lead to suspect classification for homosexuals and therefore equal protection. Because the Supreme Court has shown itself to be both homophobic{98} and averse to creating any new suspect classes, I find this claim to be dubious. In City of Cleburne v. Cleburne Living Center,{99} the Court refused to create even a quasi-suspect class for the mentally retarded. In other cases both the aged{100} and the poor{101} were also rebuffed. All three of these groups would appear to be is less disfavour with the court than homosexuals.

Cleburne also indicates that immutability is not as relevant to suspect classification as once was thought. Although mental retardation is unquestionably immutable and not the result of a choice made by those afflicted with it, the court refused to grant them suspect classification, stating,

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[I]t would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.{102} Legal scholars have also concluded that immutability is neither a necessary, nor sufficient condition for obtaining equal protection via suspect class status. Halley, after analyzing both the law and the ineffectiveness of immutability arguments in recent cases, claims that "gay-rights advocates who base their equal protection cases on the argument from immutability do so at their option."{103} Francisco Valdes states, "[A]dvocates for sexual minority equality claimants should resist all efforts to pull the case into the "choice" and "immutability" issue. As the law currently stands, the etiology of sexual orientation is not dispositive, or even relevant, to the disposition of the case."{104}

However, as has already been shown, immutability and the etiology of homosexuality is a separate issue from essentialism arguments. Many people still wish to associate homosexuality with a separate identity apart from conduct, chiefly to avoid the problem created by Bowers v. Hardwick,{105} that homosexual behaviour can be criminalized. Francisco Valdes argues that pro-gay litigants should use a status/conduct distinction in sexual orientation cases.{106} He posits that the eighth amendment of the Constitution supports arguments based on such a distinction. Under the 8th Amendment as interpreted in Robinson v. California,{107} a state cannot punish a person for their status alone; punishment must be for acts committed, or conduct. In Robinson, the Court held that the defendant could not be punished for being a drug addict, even though possession, use and sale of drugs was illegal. The status/conduct distinction was upheld in Powell v. Texas, because even though in that case the Court found that the defendant could be punished for public drunkenness, the Court also found that public drunkenness was not a status, but conduct, namely the act of appearing drunk in public.{108} Unfortunately, the courts have not applied this legal principal to sexual orientation cases, as evidenced by the military cases such as Steffan v. Perry, in which Joseph Steffan was forced to resign from the Naval Academy for the status of being a homosexual in spite of the lack of evidence of homosexual conduct.{109} In Perry, the court inferred homosexual conduct from his status. Valdes himself cites two similar cases in which a lesbian{110} and a bisexual{111} were discharged for mere status, lamenting that "the punishment of Lesbians, Gays, and Bisexuals on the basis of pure status or identity is undertaken openly."{112} Given this treatment by the courts, a status/conduct distinction becomes much less promising as a legal strategy.

As a strategy to unite lesbians, gays, and bisexuals it is dangerous and appalling. To liken the status of homosexuality to alcoholism and drug addiction is self-defeating. It is to make lesbians, gays, and bisexuals into a group of persons with a medical disease, a battle to end that classification has already

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been won. While much of the middle class is sympathetic to alcoholics, they believe that they are sick and need to be cured.

This is the point of Halley's differential of "anti-gay essentialism" from its "pro-gay" articulation. The average person does not want an alcoholic baby-sitter or teacher for his or her children, nor do they want them in positions of responsibility, afterall, they are sick. And being sick will conjure up to some minds the notion of cure, a most unappealing prospect that conjures up visions of A Clockwork Orange in my mind. This sort of reduction is not a step to assimilation, but a dead-end.

Mohr, after having refuted the radical social constructionism of Foucault, invents a more moderate one of his own in the next chapter of his book. He does so by defining gays as a minority in the normative sense, namely "a group treated unjustly because of some status that the group is socially perceived to possess independently of the behaviour of the group's members."{113} He adds to this the property of being considered and having been treated as somehow sub-human, as a lesser moral being. Mohr argues that gays are often considered in this way and so have attained minority status and they should receive the rights, benefits, and protection of this status. From this, Mohr concludes, "[G]ay studies, as the study of a minority, should be viewed chiefly as a normative inquiry rather than as either an empirical study of the world or a nonempirical study of discourses."{114} Although Mohr is careful to mention that his thesis is only that "society treats gays as though they constitute an ethnic minority,"{115} as opposed to the social constructionist position that society constructs the category homosexuality (he still holds onto his same-sex desire definition), by advocating the study of gays along these lines, he is advocating a social constructionist gay studies. Again I do not believe that it follows from the fact that society has reduced a group of people to the status of an object, that they should likewise reduce themselves. This is not to advocate quietism in the face of oppression as I shall explain after considering Halley and Cain.

As I stated earlier, Janet Halley advocates litigating from a position that she calls behavioural constructivism because it does not utilize the unnecessary and divisive immutability claims and is a middle ground between essentialism and social constructivism, that (almost) all homosexuals can embrace. She cites as one of its advantages that it does not misrepresent gay men, lesbians and bisexuals who do not accept either of the more extreme positions, so is therefore more ethical. But as has been shown, any position that labels people threatens individuality and risks inauthenticity.

Patricia Cain also cites legal/political reasons for endorsing an essentialist position regarding lesbians, even though she rejects this move in feminism. She claims that the category lesbian is too young to be destabilized, that lesbians have had very little time to construct positive identities,{116} that lesbians must emphasize their commonalties. This is a pragmatic reason, given her earlier statement, "I can see a potential practical problem with anti-essentialism. To put the matter quite simply, if 'woman' is not a stable category, how is

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it possible to build a political movement around the goal of improving the material conditions of women's lives?"{117} She wishes to protect the lesbian political movement. This is not metaphysical essentialism, but a social construction based on the present political situation. Her second reason for endorsing lesbian essentialism is that there is a core lesbian experience that creates lesbian identity and makes it an essential category.

That core experience is the emotional and erotic attraction to another women and the recognition that this attraction has occurred. Virtually everyone, however, experiences a sexual awakening, that it is so unique for lesbians (and presumably gay men) is the contingent social conditions that make it a taboo. She could maintain it is essential for homosexuals, but not heterosexuals if she claimed that the former was unnatural and confounded the normal expectations and intuitions of all people in all cultures, but this seems an unattractive option.

As I said in my critique of Mohr's pragmatic case for group identity for political purposes, I do not advocate quietism in the face of oppression. On the contrary I should urge that all people who are victimized by the ruling class and religious right fight back together, not as "gays," "blacks," "civil libertarians," "environmentalists," "welfare recipients," "illegal immigrants," and "feminists," but in one united front. Education of the masses so that they will not fear what is unknown and Other is necessary, so is political opposition to the demagogues that exploit this fear of the Other. Many persons in one of the aforementioned groups belong to other groups on the list as well, and all have in common a struggle against the forces of repression. Hitler{118} had his list which included Jews, Jehovah's Witnesses, leftists, emigrants, homosexuals, and gypsies. The New Right has their enemy list. A united opposition{119} would have the pragmatic result of making the resistance more effective because larger, better financed, and less easily typed. More middle class people will rally in the name of tolerance and the Bill of Rights than will take a stand for same sex marriage or abortion rights. The single issues are more divisive, and the opponents of all groups are often the same people.{120} The fight should and could be taken to the opposition, rather than restricting itself to defensive counter measures. Pastors who lead abortion clinic blockades should have their church services blockaded, the IRS should be encouraged to target "religious" groups who meddle in politics, businesses who contribute to hate groups, pollute the environment, or discriminate against minorities could be boycotted by a significant segment of the populace. Through education, political action, and economic pressure, the support-even anything less than active opposition to the far right-by businesses and the ruling class, could be made no longer viable. The 1992 election results have already caused a rift to develop between eastern establishment Republicans who are interested only in money, and the yahoos who commandeered their convention. On the ethical and psychological side, a massive resistance would not reduce an individual to a homosexual or an environmentalist either in her or his own mind or the minds of others. It is no doubt preferable to brandish a pink triangle in solidarity and defiance of hateful oppressors than it is to wear one in a

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concentration camp, but a world without pink triangles is better still.


{1}University of Oregon Law School, 19 April 1995. I should like to thank Professor Dom Vetri for whose seminar on Gay & Lesbian Legal Issues this paper was prepared and my colleague and writing partner in that seminar, Anne Fujita; both of whom provided me with cogent criticisms and persistent calls for clarification. I should also like to acknowledge Professors Keith Aoki and Frank Valdes for their assistance in placing this paper. {2}Views from a Window Conversations With Gore Vidal 239 (Robert J. Stanton and Gore Vidal eds., 1980).

{3}Newt Gingrich's "politics of anger" as Time Magazine calls it is in fact an exploitation of all that is dark and malignant in people, most notably resentment.

{4}I shall employ the following conventions concerning quotation marks and words double quotations as above will indicate a technical or questionable use of a word, single quotes will indicate that I am referring to the actual word in the quotes rather than its referent. 'Homosexual' then would refer to the word homosexual itself, as opposed to a person, group, or act. In logic this is referred to as the use/mention distinction. {5}Harold Bloom, The Western Canon 31 (Harcourt, Brace 1994). {6}The middle initial is an Archie Bunker misnomer that I appropriated. {7}Such categories can couple two writers of such differing aesthetic power as the brilliant Toni Morrison and the woefully inadequate Alice Walker denying the individuality of both women. This is a problem endemic to minorities, nowhere will one find Norman Mailer and Stephen King joined as "macho white male novelists of violence" for instance.

{8}The equal protection question for instance, as will be shown, by raising homosexuals to a discrete class could have a concomitant negative affect of reducing some twenty-five million diverse individuals to a group defined by one trait (homoeroticism), thus reducing them to one dimensional quasi-citizens in the eyes of many other Americans.

{9}In general most essentialists take themselves to be defining the concept or even Idea of homosexuality, while most social constructionist are answering the question of how a group of speakers define a word. Others (on both sides) lack the sophistication to make the distinction. I shall remain agnostic, at least for the nonce, for the sake of exploring the arguments critically and without an assumption that determines their outcome.

{10}See Michel Foucault's The History of Sexuality, Vol. I, An Introduction 42-49 (Robert Hurley trans., 1978) (1976) and David M. Halperin, One Hundred Years of Homosexuality and Other Essays on Greek Love 41-53 (1990). This theory is applied to gender as

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well in Judith P. Butler, Gender Trouble (1990).

{11}Daniel R. Ortiz, Creating Controversy Essentialism and Constructivism and the Politics of Gay Identity, 79 Va. L. Rev. 1833, 1838 (1993). {12}It is of course not true that one who becomes pregnant always has consciously chosen to do so, Ortiz qualifies his category by excluding cases of coercion, ignorance, and contraceptive failure. This is still an incomplete list and a sloppy category.

{13}What about Myra Breckinridge? Biological sex is determined at birth, psychological sex is another matter that may be more important, a transsexual is presumably a person who found their biological sex less essential than their psychological sex.

{14}Ortiz, supra note 11, at 1839.

{15}The history per se is not important, the point is that race is not essential because we can imagine a society where it does not matter, i.e. one where all persons have the same skin colour.

{16}One could try to achieve the early Africa analogy by heeding certain radical feminists and exterminating all men, gendercide, but males would still be aborted, so difference (by absence) would be striking. {17}Ortiz uses 'gay' most of the time, I am using the genderless 'homosexual', which I take to be an adjective, but employ also as noun for the sake of readability. 'Gay' originally meant a woman of easy virtue in the 17th century according to Gore Vidal. "Is she gay?" meant is she available. Ruthann Robson complains in Lesbian [Out]Law (Firebrand 1992) that what she calls Queer Legal Theory, and Mohr refers to as Gay Studies, ignores lesbians in favour of gays (p.22), she praises Francisco Valdes as an exception (p.26).

{18}There is plenty of evidence of bisexuality in other societies as well, see Eva Cantarella, Bisexuality in the Ancient World (Cormac Ó Cuilleanáin, trans. Yale 1992).

{19}Ortiz, supra note 11, at 1849.

{20}Richard D. Mohr, Gay Ideas 222 (Beacon Press 1992).


{22}Names, whether they refer to individuals or groups, affect the light in which their referents are seen. 'Gay', 'queer', and 'homosexual' may all have the same denotation for a community of speakers, but they hardly share a connotation. Nabokov illustrates this point beautifully at the opening of his masterpiece, "She was Lo, plain Lo, in the morning, standing four feet ten in one sock. She was Lola in slacks. She was Dolly at school. She was Dolores on the dotted line. But in my arms she was always Lolita." Vladimir Nabokov, The Annotated Lolita 9 (Alfred Appel, Jr. ed., Vintage Books 1991). The mode of presentation affects how what is named is perceived, by others, and sometimes by the individual named. This is one of the things

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at stake in the metaphysics debate.

{23}Ian Hacking, Making Up People, in Reconstructing Individualism 222, 222-36 (Thomas C. Heller et al. eds., 1986).

{24}Mohr, supra note 20, at 228.

{25}Id. at 236.

{26}Id. at 237.

{27}Id. at 238.

{28}Id. at 240-41.

{29}Janet E. Halley, Sexual Orientation and the Politics of Biology A Critique of the Argument From Immutability, 46 Stan. L. Rev. 503 (1994). {30}Id. at 517.

{31}Id. at 548.

{32}Carole S. Vance, Social Construction Theory Problems in the History of Sexuality, in Homosexuality, Which Homosexuality? 13, 21 (Dennis Altman, Carole Vance, Martha Vicinus & Jeffrey Weeks eds., 1989).

{33}Halperin, supra note 10.

{34}Halley, supra note 29, at 559.

{35}Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 Va. J. Soc. Pol'y & L. 43 (1994).

{36}This theory is also criticized in Maia Ettinger, Color Me Queer An Aesthetic Challenge to Feminist Essentialism, 8 Berkeley Women's L. J. 106 (1993).

{37}Ortiz, supra note 11, at 1847-49.

{38}Simon Blackburn, The Oxford Dictionary of Philosophy 125 (Oxford 1994). {39}Saul Kripke, Naming and Necessity (Harvard, 1980).

{40}Names (proper and natural kind terms) are inextricably linked to the objects they name in current philosophical logic. It is important to keep them straight. For those inclined to a technical explanation of Kripke's theory concerning naming and its place in the history of ideas, here is a brief overview Historically, Frege, Russell, and Searle thought they were giving different theories of naming. Frege said proper names had both a sense (meaning) and a referent (the object named); Russell wrote that what we call proper names are not, strictly speaking, proper names at all, but just abbreviations for some definite description. In "Proper Names" Searle suggested that while no one definite description was synonymous with a given proper name, a cluster of them were associated with each name, and the name

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picked out the object that a weighted majority of them designated. John R. Searle, Proper Names, 67 Mind 166 (1958).

For Kripke these are just three heads of the same Hydra that claim sense determines reference. Kripke, siding with Mill, suggests that proper names refer directly and have no connotation whatsoever. Kripke's first argument is just to show that names do not work the way the descriptivists insist. We do not start with descriptive concepts and sort through the world until we have the object uniquely designated. Now in rare cases we do, but these just serve to illustrate the oddity of the claim. We can say (stipulate) that the name 'Midnight Rambler' picks out the mastermind of a deadly ambush of British troops in Northern Ireland last month; and when that IRA soldier is identified say, "this is the Midnight Rambler of whom we have been speaking." But this is not a picture of how we know who Garrett Epps is, or how we recognize Jerry Brown, or even to whom we refer when we use 'Karl Marx'. These three different cases, in which we refer by proper names--personal acquaintance, famous contemporaries and historical figures--are all captured by Kripke's picture A rough statement of a theory might be the following An initial 'baptism' takes place. Here the object may be named by ostension, or the reference of the name may be fixed by a description. When the name is 'passed from link to link', the receiver of the name must, I think, intend when he learns to use it with the same reference as the man from who he heard it. (Naming and Necessity, p. 96)

The other pillar of this direct reference theory is that names are rigid designators. For example, 'Secretariat' names the same object in all possible worlds (except, of course, worlds in which there is no Secretariat since he does not necessarily exist, as some people believe god does, if she exists at all). This allows Kripke to avoid a problem that confounds descriptivist theory. Look at the following argument (Joan Jett was named Joan Larkin at birth on 22 September 1960, the ‡ indicates modal necessity) (1) ‡ (Joan Jett = Joan Jett) (2) Joan Jett = Joan Larkin

‡ (Joan Jett = Joan Larkin) This is a valid inference leading to an a posteriori necessary identity statement, a valid inference the opponents of rigid designation sheepishly deny, while Kripke embraces it with open arms as another piece of evidence for his theory.

There is another consideration concerning necessity that militates heavily in Kripke's favour. On any of the descriptivist accounts it will turn out that objects named have necessary properties. This is especially a problem for Frege and Russell but even Searle concedes the point in "Proper Names" Suppose we agree to drop 'Aristotle' and use, say, 'the teacher of Alexander', then it is a necessary truth that the man referred to is Alexander's teacher--but it is a contingent fact that Aristotle ever went into pedagogy, though I am suggesting that it is a necessary fact that Aristotle has the logical sum, inclusive disjunction, of properties commonly attributed to him . . . .

So, to claim that Aristotle was born in Athens and died a year later would not just be false, but a contradiction. That can't be right unless we accept some very hard determinism, which descriptivist theory clearly does not. Many contemporary

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philosophers take this to have refuted Frege, others merely see Frege as damaged.

{41}Strictly speaking, I should ask could it be an essential property of any person, but for our purposes is it a superfluous distinction. {42}Halley, supra note 29.

{43}Simon LeVay, A Difference in Hypothalamic Structure Between Heterosexual and Homosexual Men, 253 Science 1034 (1991).

{44}J. Michael Bailey & Richard C. Pillard, A Genetic Study of Male Sexual Orientation, 48 Archives Gen. Psychiatry 1089 (1991).

{45}Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Nan Hu & Angela M.L. Pattatucci, A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation, 261 Science 321 (1993).

{46}Halley, supra note 29, at 535.

{47}Id. at 539.

{48}Tim Radford, Your Mother Should Know, The Guardian, July 17, 1993, at 23 (quoting Hamer's comments broadcast on BBC radio) (emphasis added). {49}For a critique of scientific procedure in general, see Paul K. Feyerabend's Against Method (3d ed. 1993).

{50}Lionel H. Blackman, Homosexuality A Disorder, a Disruptive Force, or an Orientation?, 16 Trial Dip. J. 275, 278 (1993).

{51}Some believe that all bisexual persons have a preference for one sex or the other at bottom, I need not refute this line. My claim is only that there is a spectrum, as to whether anyone is situated in the precise middle, I need not worry.

{52}Halley, supra note 29, at 549-50.

{53}Metaphysics is beyond the physical, beyond what we have epistemological access to, ergo our senses cannot determine the answer. Many people, especially those under the sway of empirical science and ignorant of its actual procedures, hold metaphysics in low esteem for this reason. {54}Also known as fool's gold.

{55}By which I mean merely possible, not probable or even likely.

If just one person in history actually changed their orientation that would be enough empirical evidence.

{56}One could be mistaken as to their biological parents identity, but if it is ever true of an individual that her or his biological parents are A & B, then it is always true. An individual whose biological parents are C & D is necessarily a different individual from one whose biological parents are A & B.

{57}Views from a Window Conversations With Gore Vidal, supra note

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2, at 23. {58}The same occurs in the case of race. In the film The President's Analyst (1967), a black patient (Godfrey Cambridge) relates to his psychiatrist (James Coburn) how he "found out about niggers." On his way to a predominantly white kindergarten class he noticed a group of white children running and screaming, "Run, here comes the nigger! Here comes the nigger!" Not wanting to be left out he began emulating them, running and screaming, "Run, here comes the nigger! Here comes the nigger!" He ran up to his older (third grade) brother yelling this, and his brother hit him. He then says that his brother did something that hurt him even more, he told him what a "nigger" was. "I was the nigger," he said. This shows how race is a social construction, he did not even know that he fell into this oppressed group until he was told. It also shows the pain such reductive stereotypes produce.

{59}As in self abuse, held to be a leading cause of blindness and several heinous diseases by the religious right.

{60}See Bowers v. Hardwick, 478 U. S. 186 (1986), currently the Law of the Land. {61}One thing to keep in mind throughout this paper, and I will address it specifically later, is the open persecution of persons perceived as different can cause the behaviour of those persons to be affected. No doubt Jewish persons were nervous in Nazi Germany, this however, can hardly be evidence of an essential predilection of Jewish persons to be nervous. Everyone likely to be taken for being a member of any group on Hitler's hate list was likely to be nervous.

{62}Interestingly, having more than one partner of the opposite sex at one time, either at the same instant, or on different nights of the week is not like homosexuality in the mores of the mob. A man who does so is a Lothario, a swinger, or a Don Juan, a woman a tramp or a slut. {63}Martin Heidegger, Being and Time (John Macquarrie & Edward Robinson trans., Harper & Row 1962) (1927).

{64}Jean-Paul Sartre, Being and Nothingness (Hazel E. Barnes trans., Philosophical Library 1956) (1943).

{65}At the end of Being and Nothingness Sartre writes of the ethical implications of his ontology, "We shall devote to them a future work."(628). He did not do so, so the theory that I shall outline below is necessarily an interpretation, but then current theory admonishes us that this is always the case with any text. Two of Sartre's friends, Simone de Beauvoir, The Ethics of Ambiguity (B. Frechtman trans., Citadel Press, 1967) and Francis Jeanson, Sartre and the Problem of Morality (R. Stone trans., Indiana University Press, 1980) (1947) took up the task and their works were later endorsed by Sartre. In his next major work Critique of Dialetical Reason, Vol. I (A. Sheridan-Smith trans., New Left Board, 1976) (1960) however, Sartre wrote that an individual ethics is impossible in a society with such unequal power relations and produced an heterodox Marxist critique of Western capitalism. The matter was further complicated by the

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posthumous publication of the notebooks, Notebooks for an Ethics (D. Pellauer trans., University of Chicago Press, 1992) (1983) in which he had begun the aforementioned promised work on the ethical implications of his ontology that appear to be somewhat at odds with the works his friends wrote. I shall avoid this morass to a great extent by extrapolating from only Being and Nothingness. The purpose of this paper is not to make a scholarly interpretation of Sartre, but to critique essentialism as applied to those who are homoerotic by themselves and their critics. {66}This will be a bit obscure, because so compact, it is also more extreme and less intuitive than Sartre, who is often read first in courses on existentialism. It is necessary for the structure of the paper and for scholarly and historical reasons to present it here and in compressed from. It will become less unclear in light of my treatment of Sartre, and is in any case not crucial to the central thesis of this paper.

{67}Blackburn, supra note 38, at 30.

{68}Heidegger, supra note 63, at 311.

{69}Friedrich Wilhelm Nietzsche, Thus Spoke Zarathustra in The Portable Nietzsche 184 (Walter Kaufmann trans., Viking Press 1954). {70}Quoted in Bloom, supra note 5, at 386. Sartre, for reasons that will become clear, was a savage critic of Freud, particularly the notion of unconscious drives.

{71}At least he does not appear to be, since when we read Sartre in light of Heidegger, trying to impose the latter's approach on the former, we will encounter difficulties because he addressed the problem from a different perspective. The main ingredients of Heidegger-death, choice, the crowd, the distinction between human being and the being of objects, angst and facing reality-are all there but with differing emphasis. Also Sartre, who concludes "Man is a useless passion" and promises a further work on ethics, is very rich in illustrations of what he calls "bad faith," but has little to say that is positive except to hint at the need for a "radical conversion" in a footnote.

{72}Sartre, supra note 64, at 629.



{75}Id. at 628.

{76}Id. at 33.

{77}Id. at 63-64.

{78}This is what existentialism is in a nutshell. For Plato and other essentialists, essence precedes existence, that is the form or Idea of something determines what its instantiation will be. For Sartre, existence precedes essence, so a person exists, then

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acts and his or her "essence" is merely the sum total of his or her actions. A person chooses to be who they are because they are free to do so, and therefore responsible as well. {79}Sartre, supra note 64, at 65.

{80}Playboy Magazine 222 (March 1980). "Popular right-wing radio evangelist and founder of the American Christian College in Tulsa, Oklahoma, spoke out against showing sex on TV, claimed that the Communists had invented rock 'n' roll and sermonized against pornography. But in 1976, Time magazine disclosed that he had been having sex with both male and female students from his college. His secret came to light when, on their wedding night, a couple divulged to each other that they both had had sexual relations with Hargis. When confronted by his accusers, the fundamentalist attributed his bisexual activities to 'genes and chromosomes.' Hargis continues to conduct his Christian Crusade." In addition to corroborating the above point and providing wry amusement, this also serves to illustrate the inauthenticity of flight from responsibility. {81}That Whitman may actually have been better characterized as autoerotic rather than homosexual is not relevant here, the point is that he is taken to be homosexual, but still accorded the status of our National Poet. Proust, who was half-Jewish and homosexual, made his narrator neither, and has been castigated by many pro-gay critics as a result. His switch, however, was not for prudential reasons, but for aesthetic ones. He needed his Narrator detached from the Cities of the Plain mythology. Nonetheless, at least twenty other characters in A la recherche du temps perdu are associated with what Proust terms sexual inversion Albertine, Andree, Gilberte, Charlus, Odette, Saint-Loup, Argencourt, Nissim Bernard, Leonor Cambremer, Chatellerault, Foix, Prince de Guermantes, Jupien, Lea, Legrandin, Esther Levy, Morel, Theodore, Vaugoubert, and Mlle. Vinteuil. {82}Ian Fleming, Goldfinger 162-63 (Signet 1960) (1959).

{83}Warren Beatty, at least in the popular imagination.

{84}Television evangelists for example, of course history has proven that appearances can be deceiving in this area.

{85}Marshall Kirk and Hunter Madsen, After the Ball (1989). {86}Id. at 289.

{87}Id. at 289-290. 'Pronunciamientos' is the correct spelling. {88}Bloom, supra note 5, at 16.

{89}Kirk and Madsen, supra note 85, at 280-356.

{90}Id. at 356-360, including "A Self-Policing Social Code" where the authors (unintentionally) rival Wilde.

{91}Sartre, supra note 64 at 557-575.

{92} This is important also because it implies Heidegger's thesis that the authentic being must be a being-towards-death. Thus, once again the two men seem to have a shared tenet anent

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existential authenticity when examined in such a light.

{93}The existentially authentic individual was not born that way; ergo, had to come to be so of her or his own volition. This is produced by an awareness of reality, the reality of human being. Dread and angst build into an ontological avalanche that the candidates for authenticity must dig their own selves out of. They emerge with the awareness that everything is gratuitous, that they are their possibilities, that they have free wills and must choose their lives and values and thus create themselves in full realization that their own death awaits as a definite possibility that could occur at any time. They must not retreat to the safety of the canaille nor attempt to objectify themselves albeit some attempt at the latter may be virtually inevitable. Now that they know reality they must seek themselves through existential analysis, that is to say determine what their individual life project is and execute it (knowing it is absurd).

If reality is not painted in pretty pastels (and it is not) that is no argument for seeking a mob-proven palliative such as narcotics, religion or stultifying bourgeois heat-death. It is inauthentic not only to retreat from reality but to fail to embrace it. The existentially authentic individual must choose that things be as they are, not only is the resoluteness to view the world authentically necessary, but because a person has to be what he or she is they must also choose it to be so as if a Nietzschean eternal return obtained. This is so because only by choosing does one become responsible and authenticity demands responsibility consciously taken in the face of the absurd. {94}But for me legal pragmatics are an overriding consideration when people's rights are threatened.

{95}Able v. United States, 863 F.Supp. 112 (E.D.N.Y. 1994). {96}Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).

{97}deParrie v. Oregon, 133 Or.App. 613 (1995).

{98}See Bowers v. Hardwick, 478 U.S. 186 (1986).

{99}City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). {100}Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). {101}San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).

{102}Cleburne, 473 U.S. at 445-46.

{103}Halley, supra note 29, at 516.

{104}Francisco Valdes, The Status/Conduct Distinction and Sexual Orientation Exploring a Constitutional Conundrum, 50 Nat'l Law. Guild Practitioner 65 (1993).

{105}Bowers v. Hardwick, 478 U.S. 186 (1986).

{106}Valdes, supra note 104.

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{107}Robinson v. California, 370 U.S. 660 (1962).

{108}Powell v. Texas, 392 U.S. 514 (1968).

{109}Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).

{110}Pruitt v. Cheney, 943 F.2d 989 (9th Cir. 1991).

{111}Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991).

{112}Valdes, supra note 104 at 69.

{113}Id. at 248.

{114}Id. at 252-53.

{115}Id. at 251.

{116}This is not great history, given Sappho and her followers on Lesbos circa 600 B.C., 'young' seems to be a dubious adjective.

{117}Cain, supra note 35, at 53.

{118}I believe it is worthy of note that while everyone in our society this side of the Church of the Aryan Nation agrees that the policies of Hitler and Nazism are quintessential examples of evil, the OCA and other opponents of homosexuality come close to adopting their exact position on the issue, if not all of their tactics.

{119}This could be seen as a larger version of Jesse Jackson's Rainbow Coalition, better organized, better financed, larger, and not associated with one personality no matter how well intentioned.

{120}This is not to preclude acts of individual retaliation against those prominent homophobic hate mongers who have dedicated themselves to destroying the lives of their chosen scapegoats. Crypto-fascist political terrorism invites an in kind response from both those pursuing personal vendettas, and politically engaged resistance groups.

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