19 December 2009
Book Review: Dishonorable Passions
William N. Eskridge Jr. is a Professor of Law at the Yale Law School in the U.S. He wrote Dishonorable Passions: Sodomy Laws in America.
I have read many books on the history of America's laws against sex. Who can forget Jonathan Ned Katz's page turner Gay American History at 720 pages? to be fair to Jonathan Ned Katz, his Invention of Heterosexuality was a thought provoker and, next to Michel Foucault's dry History of Sexuality, vol. 1, is at the top for understanding the recent emergence of sexual identity.
Gay legal books, however, have been much less impressive, overly jargony and just plain boring. The exchange between Andrew Sullivan's self-hating Virtually Normal and Michael Warner's explosive The Trouble with Normal was perhaps that most interesting discussion on the legal LGBT front in American politics. Both were tangential in their legal treatment.
I had come to believe that it was impossible for gay people and gay rights advocates to write something interesting about gay legal work and its relationship to real life. That belief was dispelled by Professor Eskridge's book. It is a long book but he does present an interesting story of how gays and lesbians got courts to recognize gay rights.
There were things that struck me as truisms about successful LGBT movements that I think many in the U.S. and the Philippines seem to not understand. First, is that success in court is less than success in convincing one's neighbors. Second, well-thought legal theories that are integrally related to other structures and deeply connected to a coherent and reasonable political philosophy of law and society is the supreme way of attaining liberty and protection at law.
I find the very shallow rhetorical fall back on "human rights" and "civil rights" that many LGBT activists use whenever the political process returns an unfavorable result to be usually childish and unpersuasive. I say this because arguing every defeat in the political process as a violation of one's human rights doesn't address the inherent error of the decision and simply refers it to legal process.
COMELEC's denial of Ladlad's party list accreditation was a good example of this. There were many consequences related to human rights and constitutional powers that should have been addressed that made the denial palpably erroneous. However, most LGBT organizations did not closely relate COMELEC's decision to the existing body of decisions related to political rights in Philippine law and history and, in failing to do so, they failed to connect it to a long history of struggles for liberty, curtailing of government overreaching and expansion of civil rights.
It is also equally important to provide a complete record for the decision maker to use evidence to support the incremental expansion of recognized liberty to the movement. In its original petition, Ladlad had failed to do this. I do not know if a motion for reconsideration was permitted or filed, but if it were, actually competent evidence of discrimination, marginalization, insularity would be good (in addition to evidence from priests about the Christian positions on gay life that contradict COMELEC's determination and put them in the untenable position of determining ecclesiastic jurisdiction.)
The recent case of invalidating consensual adult sodomy laws in Delhi was a two pronged approach that did both of these: it connected the struggle to decriminalize consensual adult sodomy with other privacy and liberty struggles in India over the last 50 years; and it provided an overwhelming record of scientific, medical and cultural evidence in support. In common law and "constitutional law" legal traditions, Eskridge demonstrates, this method has also been the winning way for LGBT struggles in the U.S.
The version I read was a 528 hardbound cloth published by Viking Adult (May 1, 2008) ISBN: 0670018627. The book is written in English. The lowest price was at abebooks.com.