1. Gliick, Robert Elements of a Coffee Service (San Francisco: Four Seasons Foundation, 1982) at 3.Google Scholar

2. This article is a second shoe dropping. The seventh chapter—“The Thing of It Is”—of my 1992 book Cay Ideas (Boston: Beacon Press, 1992) points out epistemological and metaphysical problems in the postmodern understanding of gay identities. This article points out the moral and political problems in this understanding.

3. See especially, Foucault, Michel Discipline and Punish: The Birth of the Prison, trans. Sheridan, Alan (New York: Vintage, 1979)Google Scholar and The History of Sexuality: Volume One: An Introduction, trans. Hurley, Robert (New York: Vintage, 1980).Google Scholar

4. As Simon D. Stern puts it “People don’t deconstruct texts, texts deconstruct texts.” Though Foucault is usually associated with the social constructionist wing of postmodernism, a seminal text of deconstruction is his 1969 essay “What is an Author?” As the essay advances, its question shifts to “what is a text?” and the answer is that we cannot be sure. The essay can be found in Rabinow, Paul ed., The Foucault Reader (New York: Pantheon Books, 1984) at 101–20.Google Scholar

5. The postmodern philosopher of lesbianism Cheshire Calhoun is blunt: “[T]he point of telling gay and lesbian history. It is a political one.” Calhoun, “Denaturalizing and Desexualizing Lesbian and Gay Identity” (1993) 79 Virginia L. Rev. 1859 at 1871.CrossRefGoogle Scholar

6. Here in a nutshell is how the individual is called into being: Society or its agents (say, prison guards or psychiatrists) pin a label on an individual and then both the individual and the society begin to treat him as though he has the properties associated with the label; as the individual brings his behavior into congruence with the label’s expectations, he in fact becomes the type indicated by the label, even if he were not the type to begin with. Through mechanisms of presumption and inducement, the labeling or “typing” of an individual becomes a self-fulfilling prophesy. Thus, for Foucaultianly ironic examples, prisons create the criminal type, even as they are trying to rehabilitate criminals; insane asylums cause their residents to become crazy; and psychiatrists turn their patients into diverse and sundry perverts, even while they are supposed to be curing them of perversion.

7. Roe v. Wade, 410 U.S. 113 at 152–53 (1973).

8. Rubenfeld, Jed —“The Right of Privacy“ (1989) 102(4) Harv. L. Rev. 737 CrossRefGoogle Scholar—has advanced a theory of “privacy” which buys wholecloth Foucault’s claim that the function of law is not so much to suppress liberty but to control individuals, as it were, from the inside by constructing them as types and instilling identities in them. Thus he flatly claims that “[a]nti-abortion laws produce motherhood” (at 788). Similarly sodomy laws exist not to limit choice, but to make individuals into reproducers. Privacy, in this view, has nothing to do with personhood, but becomes a right to “avoid being forced into an identity” (at 782, emphasis in original). Rubenfeld claims that such a right is grounded in the very idea of democracy viewed as an anti-totalitarian principle. But this move is a mere bootstrapping hope once one buys, as Rubenfeld does, the Foucaultian package that the self is created by society. For then there is no self left over with which to exercise this anti-totalitarian right. And Rubenfeld more or less admits as much: “We are all so powerfully influenced by the institutions within which we are raised that it is probably impossible, both psychologically and epistemologically, to speak of defining one's own identity” (p. 794). But then, to sloganize: No persons, no rights.

Foucault himself saw, as Rubenfeld does not, that once the individual is dissolved as a source of independent desire and autonomy, appeals to rights are pointless against the ever more ramified and sinuously intrusive state. Rather, at the end of his Discipline and Punish, Foucault feebly supposes that micro-level resistances to the state will somehow automatically spring up from within the very webs of power laid out by the state. This assumption seems to be little more than a pledge taken to the Hegelian dogma that theses always contain within themselves antitheses which spring up automatically from them.

9. See Foucault, M. Discipline and Punish, supra note 3 at 195–228.Google Scholar

10. Foucault, M. History of Sexuality (1976), supra note 3 at 43.Google Scholar

11. See Butler, Judith Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990) at 130.Google Scholar

12. Foucault, M. Discipline and Punish (1975), supra note 3 at 30.Google Scholar

13. Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992). In Casey, the repeated emphasis on the right to one’s body as one of the “more general rights under which the abortion right is justified” (at 2824) comes as a major surprise, since the prospect of such a right was a line of possible justification that was explicitly turned back in Roe itself, supra note 7.

14. Casey, ibid, at 2806, 2810,2816, 2824.

15. Bowers v. Hardwick, 106 S.Ct. 2841,478 U.S. 186 at 188 note 2 (1986).

16. Ruthann Robson, for instance, claims “There is nothing inherently private about sex…[Privacy] is ultimately dependent on the legally sacred concept of private property.” Robson, R. Lesbian (Out)law: Survival Under the Rule of Law (Ithaca, NY: Firebrand Books, 1992) at 63.Google Scholar

17. Jed Rubenfeld’s article (supra note 8) is a good example of how, in postmodernism, concerns over individual “privacy” collapse into concerns about individuals as “types.”

18. Blanche Knott’s Truly Tasteless Jokes—“over one million copies in print!”—serves up the paradigmatically racist joke: “What do you call a black millionaire physicist? Nigger.” Knott, B. [pseud.], Truly Tasteless Jokes: Two (New York: Ballantine, 1983) at 15.Google Scholar

19. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686 (1954).

20. Dred Scott v. John FA. Sandford, 60 U.S. (How.) 395 (1857) (holding that blacks do not have standing to bring suits in federal courts).

21. “Man is, or should be, woman's protector and defender.... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” Bradwell v. Illinois, 83 U.S. 130 at 141 (1872) (upholding a state prohibition of law practice by women). “[W]oman is still regarded as the center of home and family life.” Hoyt v. Florida, 368 U.S. 57 at 61-62 (1961) (unanimously upholding a state law which included men on the jury list unless they requested an exemption, but exempted women unless they volunteered).

22. For example, by Judith Butler, supra note 11 at 148.

23. Steakley, James D. The Homosexual Emancipation Movement in Germany (New York: Arno Press, 1975) at 118.Google Scholar

24. U.S. v. Carolene Products, 304 U.S. 144 at 152 note 4 (1938). The Court recognized that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” might need “to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” Even more perceptively the Court recognized that social, as opposed to legal, forces also might have the result for some groups of effectively excluding their participation in the political life of the nation: “[Prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”

25. I take it that this is basically what is occurring in Halley’s, Janet E. well-regarded law-review article on gay identity and equality, “The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity” (1989) 36 UCLA L. Rev. 915.Google Scholar In Foucaultianly-inspired words, she holds: “This article attempts to clear the ground for [the] protection [of the right ‘to advocate repeal of the sodomy statutes’] by demonstrating that sexual identity is produced by social interaction, and that activity of production is so fundamental to the development of a genuine and fair public debate about the wisdom of the sodomy statues that, under the mandate of the equal protection clause, courts are obliged to protect it” (at 918).

26. R. Robson, supra note 16 at 153–54.

27. Stanley Fish in Berman, Paul ed., Debating P.C.: The Controversy over Political Correctness on College Campuses (New York: Dell, 1992) at 231–45.Google Scholar

28. Fish, ibid, at 245.

29. Fish draws no distinction between an individual’s interests (or happiness) and the individual’s dignity. Invective like shouting “faggot” is a harm in the sense of an insult, an attack upon dignity, not a harm that attacks one’s interests and counts as injury. The common expression “adding insult to injury” shows that we consider insults a graver form of harm than injuries. But the criminal law (and its analogues) are particularly poor means of addressing the problem insults raise, for legal coercion does little or nothing to defuse the cultural repository of anti-gay values that allow the term “faggot” to have its particular punch as an imprecation that both calls down condemnation upon an individual and reinforces the values that are the source of the condemnation by pledging allegiance to them. Laws here could at most have a weak symbolic force. In any case, legal coercion cannot be adequately justified by its possible educational value. For an alternative, both non-coercive and direct, is available—education itself.

Fish also fails to distinguish first order values (say, specific religious dietary codes) and second order values (values about values) that might be used to put reasonable (even necessary) restraints on speech so that the right to free speech may remain a right and coherent as a right. So it is reasonable, even necessary, in a free-speech society to bar the passing of military secrets to totalitarian governments that would be able to use them to eliminate the free-speech society. There will always be some such “side-constraints” on speech in order to guarantee speech as a right, just as there will always be side-constraints on the freedom of contract (say, that one cannot waive one’s enforcement rights, or contract into slavery) in order to maintain freedom of contract as a coherent right. There is nothing mysterious about such side-restraints. But Fish (failing to distinguishthe two orders of value) supposes that since there are always some restraints on speech, all restraints are equally well motivated (even when they are no more than attempts at “the promotion of virtue” [at 232]), and so he holds that there never really are free-speech rights and that any claims that there are must be ruses: “the First Amendment has always been a dead letter…” (at 243).

30. Fish, ibid, at 244.

31. See J.S. Mill, On Liberty, ch. 2.

32. R. v. Butler, [1992] 1 S.C.R. 452, 134 N.R. 8

33. “The Censorship Agenda Is Closely Linked to a Homophobic Agenda (Canada)” 604 The Advocate (2 June 1992) 27; “‘Obscenity’ Crackdown” Gay Community News [Boston] (22 May 1992) at 1,7.

34. And it is not just lesbian feminists who should fear unleashed censorship: “Earlier this month [June 1994], the American Online network shut several feminist discussion forums, saying it was concerned that the subject matter might be inappropriate for young girls who would see the word ‘girl’ in the forum’s headline and ‘go in there looking for information about their barbies,’ a spokeswoman said.” “Censors Become a Force on Cyberspace Frontier” New York Times [national edition] (29 June 1994) A1.

35. “Invisibility = Death: Canada Customs and the Butler Decision May Erase Us for Good” XS: A Supplement to Xtra! [Toronto] (October 1992) 15; “O Canada, They Stand on Guard” The Globe and Mail [Toronto] (20 June 1992); “Canadian Booksellers Battle Customs” American Bookseller (January 1993) 7; “Strange Customs” Saturday Night [Toronto] (March 1993) at 31, 66. See generally, “At Canada Boarder Literature at Risk?” New York Times [national edition] (13 December 1993) A6.

36. For discussion and critique of strategic essentialism, see Amanda Anderson, “Cryptonormativism and Double Gestures: The Politics of Post-Structuralism” (Spring 1992) 21 Cultural Critique 63.

37. EEOC v. Sears, 628 F.Supp. 1264 (N.D. III. 1986), aff. 839 F.2d 302 (7th Cir. 1988).

38. Schenck v. United States, 249 U.S. 47 (1919) (Holmes upholding sentences for people who leaflet army inductees); Dennis v. United States, 341 U.S. 494 (1951) (upholding jail sentences for publishing communist books).

39. Fish, supra note 27 at 243.

40. “Heaviest Cross for Egypt’s Copts: March of Islam,” New York Times [New York City edition] (27 July 1992) A4. On Sunday July 10, 1994, the Ambassador for the Kingdom of Saudi Arabia to the United States took out a full page ad in the New York Times titled “Modernizing in Our Own Way” (at 20). The ad appealed to moral relativism, “rights to our own basic values” and “respect [for] other people’s cultures” to justify Saudi Arabia’s departures from “Western human rights.”

41. For a gay example of such judgment-arresting relativity, consider: A nineteen year-old Jamaican reggae singer, Buju Banton, has a song “Boom Bye Bye” with lyrics that mean approximately “Faggots have to run or get a bullet in the head.” A spokesman in the singer’s defense claimed, “Jamaica is for the most part a third-world country with [a] different ethical and moral code. For better or worse, homosexuality is a deep stigma there, and the recording] should be judged in a Jamaican context.” Windy City Times (14 January 1993) 10.

42. Amnesty International USA, Breaking the Silence: Human Rights Violations Based on Sexual Orientation (New York: Amnesty International Publications, 1994) at 5–6.Google Scholar