19.org 

Double Suspect Symbols

Normalization of Homosexuality

A Just Society For ALL. But how?

Mixing Mud With Pure Clay

Pissing in the First Amendment

Kenji Yoshino, in his/her/hir/its article, Suspect Symbols: the Literary Argument for Hightened Scrutiny for Gays, (Columbia Law Review 96 n7, p1753-1834, Nov 1996) argues that using symbols?triangle, closet, body will strengthen the pro-gay argument for strict scrutiny regarding their demand for Equal Protection of the 14th Amendment. According to Yoshino, symbols are suspect in two ways: because they are ignored by orthodox legal discussion and because they can indicate unconstitutional discrimination. Yoshino tries to bridge the gap between law and literature proceeding from a "Unstable Synthesis" theory that suggests a moderate relationship between law and literature. She (?) quotes Martha Nassbaum "the literary imagination precisely because it seems . . . an essential ingredient of an ethical stance that asks us to concern ourselves with the good of other people whose lives are distant from our own." (p. 314). She thinks that symbols can provide "empathy" for judges who desperately need it for a fair judgment. "Because symbols are for public consumption, for the illiterate as well as the literate, for the masses as well as for the cognoscenti, their emotive aspect must be less exclusive." (p. 319). Then she goes to evaluate gays according to the three-prong inquiry of EP clause, that is, history of discrimination, political power, and immutable characteristics. Finally, she speculates about the meaning of the three gay symbols. She hopes that judges one day will wonder the meaning of pink triangle. 

The author relies on both fiction non-fiction literature and legal documents. Indeed, incorporating literature with legal reasoning and thereby adding the missing ingredient, empathy, is her main purpose. She most frequently refers to Sedgwick. 

The article has a elegant style. The language is clear and colorful. The modesty in her argument is probably aimed to stop the reader from becoming too harsh on or suspicious of her arguments. She does not claim to have discovered the magical sword for defense of homosexuals; but a partial solution. I think that she does a great job in her attempt to liken gays to Jews but she ignores other groups, such as asocials. Should American asocials use the same argument and declare their suspecthood with their suspect symbols?holocaustic black triangles, subdued eyes, and bodies?and demand EP against employers who discriminated against them? Should they also claim lack of political power because of this historical discrimination? 

Janet E. Halley, a professor of law in Stanford University, in her article titled Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, (Stanford Law Review, v 46 n 3 503, Feb 01 1994), expresses her concern regarding recent scientific studies claiming the genetic (immutable) nature of homosexuality. Immutability is one of the criteria is used by Supreme Court to diagnose suspect classes for equal protection purposes. 

Halley, evaluates Supreme Court cases on discrimination and claims that "immutability is not a requirement but a factor." (p. 507). She suggests pro-gay essentialists to abandon the pro-gay arguments from biological causation and compromise with pro-gay constructivists on a legal strategy that focuses on sexual orientation identity regardless its cause. 

Halley, is concerned about the abuse of "immutability" by anti-gay groups. They could categorize gays with alcoholics and other genetic anomalies that should be treated and prevented: "For a number of reasons, the pro-gay argument from immutability, when advanced as legal claim, is not the silver bullet its proponents think. . . pro-gay support for genetic explanations of sexual orientation may boomerang by validating the key premises of anti-gay eugenics." (p. 519, 521). Nevertheless, her primary concern is about lesbians and other sub-groups who might not be able to use genetic or biological immutability for justifying their sexual orientation. To Halley, the immutability argument is a kind of betrayal by male homosexuals. "Immutability offers no theoretical foundation for legal protection of those gay men and lesbians who experience their sexual orientation as contingent, mutable, chosen." (p. 528). She suggests a common strategy, a weak form of essentialism and a weak version of behavioral constructivism to accommodate gay men, lesbians, and bisexuals. (p. 556, 558). 

Later, she evaluates three recent scientific reports supporting immutability of homosexuality and finds them inconclusive. Those studies never considered sexual orientation based on personal choice and they contained serious flaws. However, she fears of being misunderstood as an anti-science fanatic: "I do not think that the danger of appropriation justifies abandoning scientific studies that hypothesize a biological cause of homosexuality. . . I argue only that they should not use litigation to obtain official appropriation for their sexual orientation identity." (p. 525, fn. 84). 

Halley, uses Supreme Court decisions, the problems with behavioral genetics, theories of sociology, epistemology in making her assertions. She seems biased towards sociological studies: she does not apply strict criticism in her presentation of social science arguments that support pro-gay constructivism. 

The primary audience of the article is pro-gay people. It does not convince a neutral person regarding the legitimacy of gay rights. In fact, it does the opposite. The author seems to be preoccupied with promotion and normalization of homosexuality by any means possible. Her real concern is not the truth of the matter, but to win the political and legal battle against homosexuals. She does not hide that she made her mind to reconcile essentialist and constructivist in the beginning of the article. To accomplish his goal she appears to be trying hard to find some procedural flaws in the scientific experiments. She caution pro-gay people: "Those of us who work politically and legally shouldn't allow the bright light thrown by scientific findings to dazzle us so that we cannot see the political problems that the experimenters assumed away." (p. 531). 

I understand Halley's concern regarding the implications and consequences of homosexual immutability. However, the suggested argument of "some immutability and some choice" is not immune from counter-argument. Almost all behaviors have some genetic (immutable) origin. Immutability alone, more accurately, semi-immutability does not trigger heightened scrutiny. Otherwise, those who commit violent crimes, or rape or burglary can seek less punishment or no punishment. At least, they might ask us to give up from morally condemning them. I do think that homosexuality has negative impact on the society and society can attach stigma to it. 

I am not gay but I am against discrimination of homosexuals, with a single exception of granting them the title of "marriage". However, I reject to join the modern bandwagon promoted by intellectual activists and I challenge the proponents of homosexuality to discuss the issue in terms of human evolution. Homosexuality is an assembly-line-error in the factory of evolution, augmented by free-choice. It is a product of genetic anomaly and wrong choice. 

People, via their representatives might chose not to normalize or promote certain behaviors. I believe that an argument based on Equal Protection is doomed to be hypocritical, if it is done only for homosexuals. I think that those who prefer bestiality, incest, polygamy, child pornography and torturing animals are similarly situated with homosexuals. Does Halley see any Constitutional barrier for the rights of those who chose to practice bestiality, incest, polygamy, child pornography (yes, I mean it)? If no, then why not advocate the rights of those most oppressed groups? If yes, why not distinguish these sexual orientations from homosexuality? Why then doesn't she include those most oppressed minorities in her argument? Is she bestialiphobic? or incestophoic? or pornophobic? or animal-torturephobic? Or does she avoid mentioning them to pursue her dubious political agenda? Is it too much to expect scholars not to play politics, but to be honest and corragous in their arguments? 
 

Derric A. Bell, in And We Are Not Saved: The Elusive Quest for Racial Justice (Basic Books, 1989), employs a realistic dialogue between two fictional black characters, Curia and Geneva, to persuade his audience that "the goal of a just society for all is morally correct, strategically necessary, and tactically sound." (p. 120).  The chapter starts with Geneva's cynical speculation, that those in power are happy with the black crime: "fear of black crime has an important stabilizing effect on the nation." (p. 111). Were the black crime miraculously cured, nothing would change. The lack of "common danger" would bring the conflicting economic and political interests among white people to the surface. To regain their comfortable status, those in power would concoct a conspiracy to revive the black crime. Nevertheless, the author apparently rejects this speculation for practical and pragmatic reasons. Nothing could be achieved by "this ultimate depiction of futility and defeat."  (p. 112). The rest of the chapter argues for an optimistic and realistic civil rights strategy. 

The Curia persuade Geneva that the root of the problem is the oppressive and unjust nature of the capitalistic system which exploits, deceives and betrays whites as well as blacks. (p. 118).  Blacks should not struggle to replace those in power and continue the same corrupt system, but blacks should cooperate with  the white underclass to reform the government through existing legal and legislative structures. (p. 119). 

The argument between the three black characters, the rebellious and furious Geneva and the peaceful and wise Curia, ends with a utopic resolution: working for a peaceful political and social reformation. This engaging and effective rhetoric, however, fails to explain how they (or we) could achieve to create a "just society for all"  and protect it from corruption. 

Racist White Id Versus Sensitive Black Id 

Charles R. Lawrence III, in The Id, The Ego and Equal Protection, suggests a hybrid standard for judicial review on the doctrine of equal protection in racial discrimination cases. The so-called "Cultural Meaning" test, according to the author will work better than "intent" or "impact" tests. He argues that racism is so deeply rooted in our culture that all of us, to a certain extent, have a racist cultural belief system. This endemic and epidemic racist culture is working without being noticed by us: it is in our collective unconscious. Without checking for this unconscious racism in governmental actions we cannot eradicate racism. Governmental conduct should be evaluated according to whether it conveys a "symbolic message" to which the culture attaches racial significance. If the governmental conduct has a symbolic racial message, then strict scrutiny should be applied regardless of the intention of the legislators. 

The author uses Freudian psychoanalysis and modern cognitive psychology to substantiate the existence of unconscious racism. He provides some personal experiences and some examples from the "miscues" of the powerful and famous people. His argument, though occasionally persuasive, goes to an extreme and loses its credibility; it becomes a non-falsifiable and self-defeating argument. 

His argument is non-falsifiable, since you can never reject it, even if his argument were wrong. Even if the entire society condemns racism and passes facially neutral laws, the author still can claim that they are unconsciously racists: "Even the most through investigation of conscious motive will not uncover the race-based stereotype that has influenced his decision." (p. 355) This cynical mass accusation seems strongly related to the impact of legislation or governmental conduct. The moment "black" people fall behind or become less advantaged as a result of governmental conduct, we must be suspicious and must discover some secret cultural viruses hidden under our conscious. Unconscious racism, according to author's definition, is a default rule. 

His argument is self-defeating because he stereotypes whites by accusing them of stereotyping blacks. For instance, he asserts that "studies have found that racists hold two types of stereotyped beliefs: They believe the out-group is dirty, lazy, oversexed, and without control of their instincts (a typical accusation against blacks)," (p. 353). By accusing all white people with a "typical" description he commits the sin that he condemns. I cannot stop asking: what is the "typical" accusation against whites by blacks? He is, ironically, silent on this question. 

The suggested "cultural meaning" test is practically meaningless, since the culture is not monolithical. How can government conduct a survey to see whether a symbolic message has a cultural connotation to race? How could the cultural meaning be elicited from the id of white people, and how many months of therapy would be needed? How can the result of the survey be reliable if it is done on people who are not even aware of their diabolic racist thoughts? "If he (a member of that culture) professes to be unaware of the cultural meaning or attitude, it will almost surely be operating at an unconscious level." (p. 359). This simply means either government must consult only black experts for the cultural meaning of governmental conduct or must only accept the cynical view. In fact, consulting only black experts will not satisfy the author, since he has already labeled those blacks who deny the existence of racism as betrayers. 

For Dandridge and Jefferson, he suggests that "plaintiffs would have to establish that a significant segment of the population perceives a decision to limit the funds available to AFDC recipients as a racial statement. They might present data on how survey respondents describe a typical AFDC recipient." (p. 366). This would not prove that "the legislature sought to demean or punish blacks but to show that many people will interpret the decision to limit AFDC funding as a demeaning racial statement." Well, this scheme has many problems. First, it leaves the standard of review to the mercy of polls or survey results. Who will conduct those surveys and on how many people? Second, what about the demeaning racial statement made by funding of AFDC, such as, "blacks are living on the dole"? What about the possible demeaning racial statement made by the number of black prisoners? Should we release them, if the survey shows that the high number of black criminals is interpreted by people as a demeaning racial statement? 

Constructing a legal doctrine based on emotional speculations of psychological speculations is a hard task, indeed. Especially, when the prime evidence relies on the abandoned Freudian psychoanalysis. 
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Patricia Willams, in Spirit-Murdering The Messenger, starts with a highly emotional personal reaction to her experience as denied customer, allegedly because of the color of her skin. She attempts to demonstrate the pervasive and active racial discrimination in our society by analyzing the language of lawmakers, officials and journalists. Furthermore, she tries to depict racism an extremely painful and assaultive crime, equal to robbery and murder. 

To make her point, she uses "letters to the Editor", newspapers reports, the Mayor's speech, statistics, personal experience, and even her "suppressed memory" regarding her white playmates' claims that God created her by mixing mud with the pure clay. She contrasts the conflicting concerns of white and black populations, and accuses legislators and media of reflecting only the white perspective. Her argument's appeal is enhanced by her brief description of the historical reasons for blacks' current condition: "During the lifetimes of my parents and grandparents, and for several hundred years before them, laws prohibited blacks from owning property, voting, and learning to read or write. . . When every resource of a wealthy nation is put to such destructive ends, it will take more than a few generations to mop up the mess." (p. 136). She later articulates a sad reality of American society with a dramatic statement: "Blacks went from being owned by others, to having everything around them owned by others." (p. 140). 

Patricia Willams also believes that racial discrimination is powerful, but invisible in our modern society. Nevertheless, she cannot avoid her biased and non-credible comments when she compares the case of the black gunman who killed many smiling white high school kids in the elevator with the Goetz case (p. 145). 

Though I am little bit familiar with Williams' oversensitivity regarding racial discrimination, (in an article, she was inferring racist agenda from the price difference between white dolls and black dolls), I do agree with her that white people, in general, are afflicted with a latent and hidden racism. But, black people are not immune from racist ideas either. The more we try to read between the lines and infer unconscious racism from each others' words and actions, the more we keep racism alive. Looking at the history, I believe that we can eradicate the traces of racism by an optimistic attitude, encouraging each other and appreciating the positive steps have been taken. Otherwise, paranoid and cynical accusations will feed themselves and slow down the formation of an egalitarian society. 

This one was bizarre. I found Ronald Collins' and David Skover's style interesting and creative. I enjoyed and I savored their review of James TwitchellÕs book, "Carnival Culture: The Trashing of Taste in America," (Stanford Law Review, Vol. 45:783; Feb 1993). Nevertheless, I had a hard time understanding it. I know that I am out of the context of American pop culture. Being both a foreigner and a semi-nerd, I missed the implications and connotations of many popular names and expressions. I am sure that I am not their primary audience; they are talking to the MTV generation. 

But, as a reader with legal education, I expected to understand the thesis of their article. I read the entire article and I am not clear. What does "cultural approach to the First Amendment" really mean? What kind of change would this new approach bring or piss into the First Amendment jurisprudence? I need to read it several times. 

The authors rely heavily on TV programs, non-fiction books, popular news, newspaper and magazine columns, movies, songs, tabloid media and political sound bites as their authority. They zap here, zap there. Quote here, quote there. They turn the article into a cultural Carnival, into a colorful quilt of media quotations where TV has "oozed everywhere" (p. 785) and where there is "no border between Lower Aesthetica and Upper Vulgaria" (p. 789), whatever it means. The style can be contagious. I am amused and confused to know that "[e]entertainment products' are now our number-two export item, right behind military hardware" and the "export of our vulgarity is the hallmark of our greatness." (p. 790) I cannot distinguish which statements belong to the reviewers and which belong to the author of the Carnival Culture. I do agree that we indulge in M*A*S*H*, we are busted by BLOCKBUSTER products, and "our public discourse has become the verbal equivalent of mud wrestling." (p. 792). Also, it is no secret that "pleasure and profit carnivalized most aspects of mass expression" (p. 794). 

The authors underline the "increasingly disappearing line between news and nonsense" (p. 793) and provide examples for the juxtaposition of politics and comedy in recent years. We learn that the real-world addressed by the First Amendment is now a virtual reality (p. 797) where logic and reason is substituted by "associative thinking" (p. 797) and where politicians debate about fictional characters (p. 798). 

I do not get how this so-called "associative thinking" will influence the First Amendment jurisprudence. However, I think I understand a little bit how "a cultural approach to the First Amendment would recognize the core value of the Ôsymbolic speech' doctrine" (p. 798). Though, redefining the democracy by replacing our representative system with electronic voting appears to be a novel idea, it is also a perfect tool to breed those who live on conspiracy theories. This time computer programs or chips are the conspirators! 

I think the article needs no improvement, since it succeeds well in conveying its apparent thesis: you do not need to understand the Carnival culture in a traditional analytical way. Carnival culture does not have any logic. If you are looking for "associative thinking," just remember the title of the article.