Well, Maybe Partial Victory, But the Trending's Good

So Anderson Cooper is gay.  Ho hum. He wrote to Andrew Sullivan:

I’ve begun to consider whether the unintended outcomes of maintaining my privacy outweigh personal and professional principle. It’s become clear to me that by remaining silent on certain aspects of my personal life for so long, I have given some the mistaken impression that I am trying to hide something - something that makes me uncomfortable, ashamed or even afraid. This is distressing because it is simply not true.
I’ve also been reminded recently that while as a society we are moving toward greater inclusion and equality for all people, the tide of history only advances when people make themselves fully visible. There continue to be far too many incidences of bullying of young people, as well as discrimination and violence against people of all ages, based on their sexual orientation, and I believe there is value in making clear where I stand.
The fact is, I'm gay, always have been, always will be, and I couldn’t be any more happy, comfortable with myself, and proud.
I have always been very open and honest about this part of my life with my friends, my family, and my colleagues. In a perfect world, I don't think it's anyone else's business, but I do think there is value in standing up and being counted. I’m not an activist, but I am a human being and I don't give that up by being a journalist.

So Anderson Cooper is gay.  And nobody much cares even though it made headlines.  Hell, they let Ellen DeGeneris host the Oscars after she came out as a lesbian.  And now gays and lesbians can get killed in Afghanistan just like straight men and women can.  And they can get married in Vermont and Massachusetts and New Hampshire and Connecticut and New York and DC. and Iowa fergodssake.  And the 9th Circuit said Proposition 8 violates the Equal Protection Clause, and a whole bunch of courts now have said that DOMA does, too. And now SCOTUS will get a chance to weigh in on the question since a cert petition on DOMA was filed on Friday and one on Proposition 8 is due in early September.

Of course, the crazy folks of Westboro Baptist Church still cheer at dead Americans because

 

And while the Phelps family may be particularly rabid, there's still no shortage of prejudice against gays and lesbians and bisexuals and, god knows the transgender people.

Yet what a change.  What progress.  

Linda Hirshman's new book, Victory: The Triumphant Gay Revolution, tells how it happened.

This is popular history, so Hirshman tells stories.  More, she gives us people.

Take Harry Hay.  The gay, card-carrying communist had a problem.

[N]o matter how Harry tried, he could not reconcile his two worlds.  None of his homosexual lovers was the least bit interested in politics.  When he came to a gay Halloween party one year around 1936 dressed as the "demise of Fascism," no one could figure out what his costume meant.

But Hay persevered, understood the need to make the personal political and started what may be first gay consciousness-raising groups.  Identity politics.  

Or take Frank Kameny, a Ph.D. astrophysicist fired from the Army Map Service.  Seems that a year earlier, he'd been standing at a urinal in a men's room at the San Francisco bus station when someone made a pass at him.  A couple of cops, who'd been eyeballing the place through a ventilation grill, arrested Kameny.  He took a deal and the charges were dismissed.

The commandeer of the map service fired him for not describing his offense adequately on his application form, and the Civil Service Commission followed with a ruling that he was immoral and thus unsuitable for federal employment.

He fought it and fought it. The ACLU helped for a while, but national policy treated "homosexuality as conduct raising legitimate security concerns," and it wouldn't take his case to the Supreme Court.  And frankly, it wouldn't have mattered.  But where lawsuits wouldn't work, Kameny thought of action.  He became, in Hirshman's words, "the godfather of homosexual militancy."

Or maybe Gavin Newsom.  Dianne Feinstein's guest at the 2004 State of the Union speech, he went ballistic when President Shrub called for a constitutional amendment prohibiting same-sex marriage.

As he listened to the conservative audience members congratulating themselves that someone was finally going to "do something about the homosexuals," he got even madder.  How dare the president of the United States use his office to divide the country and instigate such a hateful idea?

Newsom wasn't just some guy in the gallery at the speech.  He was the mayor of San Francisco, which meant he could do something about his anger.  He went home and ordered San Francisco to start issuing marriage license to same-sex couples. Sure, it didn't last.  But the firestorm he started just kept going.

Of course, it'shttp://www.blogger.com/blogger.g?blogID=5945843206427351559#editor/target=post;postID=193703454022747002 not just people.  

There was Stonewall, the riot and the marches on its anniversary. And ACT UP and the struggle to get the FDA and the CDC and the rest of the government to acknowledge the reality of AIDS and pump resources into dealing with it. 

We die. They do nothing.

And there are the legal fights.  Hirshman gives a terrifically rich account of how Colorado came to amend its constitution to prohibit any effort to protect gays, lesbians, and bisexuals from discrimination.  She follows the litigation up to Justice Kennedy's opinion for the Supreme Court in Romer v. Evans.

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. 

If Romer was a great decision, going some way toward welcoming gays and lesbians into the social compact, it didn't undo Bowers v. Hardwick  which said that it was ok to prosecute them for acting on who they were.

But Kennedy took it on again, writing the opinion in  Lawrence v. Texas reversing Bowers.  

When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

Indeed.

There's more, much more. Including, especially, the fight for same-sex marriage and the struggle to get the military to accept gays.

And if the title, Victory: The Triumphant Gay Revolution is premature, well, yeah, it is.

The courts, the legislatures, the President (who has finally evolved to the point where he thinks same-sex marriage should be allowed except in states that want to prohibit it), they can only achieve so much.  The major legal battles are being won.  There are more to come, certainly, but the trend is there.  Victory, though, that's something else.

Discrimination doesn't end when the courts or the legislature or the executive or all of them say it does.  Hatred doesn't stop because we punish it. 

Hirshman knows she's on thin ice claiming Victory.  But there's so much to cheer, she can't help herself.  It's a quibble, of course, but the complacency-inducing, ultimately false claims of victory and triumph remind me of a tendency to overdo.  I stopped counting, after a while, the number of people Hirshman describes as legendary. (Of course, none of them are actually legends, but the excess was more annoying than the word choice.)  

One of the folks who's not a legend is Matt Coles.  He, instead, is "the experienced and strategic éminence grise from San Francisco."  It's quite an accolade.  Alas that's the first of two passing references to him.  Why? How? What makes him special?  We're never told.

There's a lot to like about Victory.  But it's disjointed and repetitive. The prose can be sloppy, the tone occasionally too glib.

But for the history. More than you imagined.

Over at 18

Unless you live in a cave, you know the press version of what happened:  Rutgers University student and accomplished violinist Tyler Clementi committed suicide by jumping off the George Washington Bridge after his roommate, Dharum Ravi, and another classmate, Molly Wei, secretly secretly recorded him engaged in a homosexual encounter and put the video on the internet.  Ravi and Wei have each been charged with multiple counts of invasion of privacy and face at least the theoretical prospect of spending years in prison.  All three were 18 years old.

Tyler Clementi, Dharum Ravi, Molly Wei

I call that "the press version" of what happened because I don't actually know what occurred.  Neither do you.  I have no particular reason to think that the events as reported are not true, but I've seen even good reporters get the facts dramatically wrong often enough - especially in sensationalist, attention-grabbing stories like this - that I'm always wary.  More than that, though, the press version, even if perfectly accurate, is incomplete. 

Why did Ravi and Wei use the webcam and then broadcast the video?  What drove them to it?  What, if anything, did they hope to achieve?  Were they motivated by hatred of Clementi?  Because they thought he was gay?  Because he was a violinist?  Because he snored?  Was it just a prank?  Because it was sex?  Because it was gay sex?  Because the guy he was with was someone they hated?  Or lusted after?  Or told a bad joke at dinner the night before?

And what of Clementi?  Why did he jump?  Because he's gay?  Because he's not?  Because he isn't sure?  Because he was embarrassed by the particular guy he was with?  Because the camera angle was tough?  Because other people were making fun of him?  Because they weren't? For reasons altogether unrelated to the video but coincident in timing?

There are lots of other questions I could add, but I'm alread being a whole lot more flip about this than I intend, so I won't.  Besides, I'm getting sidetracked by the questions, which only deal, after all, with personal motivation.  See, personal motivation, the reasons why they each did what they did, that's only part of the story, too.

Here's another part: We live in a world of surveillance.  There are cameras on busy street corners, cameras in parking lots.  You're photographed at the bank and the post office and when you're in WalMart.  At the bus station and in the subway.  Cameras record your license when you pass through a toll booth.  Other cameras are finding out if you're running a red light or speeding.  There's a camera on the tip of someone's shoe or the end of his cane taking pictures up your dress.  There are cameras recording what goes on in public restrooms (yep, legal ones).  

And we (that's a societal "we"; I'm not talking about you and me, though maybe I'm talking about you) live for it.  Reality TV?  You bet.  Take, for instance, Apprentice contestant and now-former Brooklyn Assistant District Attorney Mahsa Saeidi-Azcuy.  Here's what NBC has to say about her.

Mahsa, 29 (Brooklyn, New York), works as an Assistant District Attorney in Brooklyn, New York, and is the host of two web shows on the side. Dealing with the financial pressures of being the sole breadwinner in her family, Mahsa has gained personal strength in this economic downturn. Before receiving her J.D. at Brooklyn Law School, Mahsa studied biology at the University of Virginia, and film at the New York Film Academy. She passionately fights to promote justice, and is obsessed with beauty, hair and style secrets.

This is not someone who's shy about being a public person.  But it's not just her.  After all, people put their own videos on YouTube. It seems as if everyone (except your humble author) is on facebook, and twitter.  Depending on the study, somewhere between 10 and 30 percent of teenagers have taken pictures of themselves at least partially nude and sent them off over their phones and computers to friends and even strangers.  And even I've got this blog.

So we live in this world where we're all on stage all the time.  We encourage that sort of thing.  And then marvel that someone takes a picture or a video and posts it online for the world to see.

But if we live in a world where everyone's private life is up for grabs, we also live in a world that is too often horrified by homosexuality.  Don't Ask, Don't Tell (and as someone recently wondered, has anyone ever been forced from the military for asking?).  Same sex marriage?  Fred Phelps and his venom spewing family from Westboro Baptist Church will be in the Supreme Court next week arguing that they have a First Amendment protected right to use the funerals of military personnel to attack support for gay rights.  (Disclosure, I represented Shirley Phelps-Roper in her partly-successful challenge to Ohio's prohibition on protests near funerals.)

It's hard to be a teenager.  It's harder still to be a teenager struggling with, or even discovering and reveling in your sexuality.  Harder still to be a teenager struggling with (or discovering and reveling in) you sexuality whose private struggles and (or) discovery are made public.

And yet, who could predict, if all of the above, that Tyler Clementi would take his life?  Even if Ravi and Wei wanted to embarrass him.  Even if they loathed him for being gay.  Even if it was something more than an offensive, ill-conceived, and frankly stupid prank gone bad.  And certainly if it was not.

There's so much more than what they did (if they did) to cause what he did (assuming he did).

Because there's plenty of blame to go around.  And Ravi and Wei, if they deserve any of it, have a wide array of others they can also point to.  If Clementi killed himself because video of him engaged in gay sex was made public, we (that's the societal we, again, not the personal one) have more than our share of blame.  To slough it all off on Ravi and Wei . . . we're letting ourselves off the hook way too easily.

One of the subjects I keep returning to on this blog is that criminal law isn't about righting personal offense.  Insofar as the law is interested in personal offense, it's tort law that shows that interest.  Criminal law is, as I've said repeatedly, about the harm done to the social fabric, to the body politic by criminal acts.

Tyler Clementi is dead.  If someone must pay, that's what torts is for.  And there's plenty of liability (not all of it legal liability, though) to go around.  But crimes?  Should Ravi or Wei really spend years in prison for capturing and showing, all without permission, Clementi having sex?  If they did it, it's wrong.  But years in prison?