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Copyright (c) 2000 The Regents of the University of California

UCLA Law Review

August, 2000

47 UCLA L. Rev. 1467

LENGTH: 19193 words

SYMPOSIUM RACE AND THE LAW AT THE TURN OF THE CENTURY: Black Rights, Gay Rights, Civil

Rights

NAME: Devon W. Carbado*

BIO: * Acting Professor, UCLA School of Law. B.A., 1991, UCLA; J.D., 1994, Harvard Law School. For helpfulcomments on, and conversations about, this Article, I thank Pat Cain, Ann Carlson, Kimberle Crenshaw, Martha

Fineman, Laura Gomez, Mitu Gulati, Angela Harris, Cheryl Harris, Jerry Kang, Gillian Lester, Jean Love, Julie

Ralston, Bill Rubenstein, David Sklansky, Giovanna Tringali, Frank Valdes, Don Weise, and Adrien Wing. Beth

Corrier, Marlo Miura, and Peter Masaitis provided valuable research assistance. The Hugh & Hazel Darling Law

Library at UCLA provided extraordinary service. The UCLA Academic Senate funded this project. Early iterations of

this Article were presented at the Gender Race and Justice Symposium at the University of Iowa, College of Law, the

UCLA African American Studies Center, the Critical Race Theory Workshop held in Washington, D.C., and the

Critical Race Theory Conference held at Yale Law School.

LEXISNEXIS SUMMARY:

... They insisted that the rhetoric the military employed to justify and legitimize the politics of racial segregation in the

armed forces is the same as the rhetoric the military employs today to justify and legitimize the politics of "the closet" inthe armed forces. ... He deploys this race/identity-homosexuality/lifestyle dichotomy to challenge military

discrimination against black, presumptively heterosexual, people and to legitimize discrimination against homosexual,

presumptively white, people. ... For as I will show, the analogizing of race to sexual orientation, the argument that

blacks are like gays, is buttressed by some of the same assumptions about black identity and gay identity that support

the notion that blacks are not like gays. ... Third, comparability arguments about language, identity, and experience

erase black gay and lesbian identities and, simultaneously, obscure white gay and lesbian racial privilege. ... In other

words, the black/gay rhetorical substitution constructs an interracial race/sexual orientation analogy in which whiteness

overdetermines the content of gay and lesbian identities, and heterosexuality overdetermines the content of black

identity. ... Point 2 identifies and invites a comparison between black identity, which is affected by racial

discrimination, and gay and lesbian identities, which are affected by sexual orientation discrimination. ... It delineates

black identity in terms of sexual orientation and homosexual identity in terms of race. ...

TEXT:

[*1468]

Introduction

In the context of the "Don't Ask, Don't Tell" n1 controversy, some gay rights proponents argued that the military's

historical discriminatory policies against blacks are like the military's current discriminatory policies against gays and

lesbians. n2 They insisted that the rhetoric the military employed to justify and legitimize the politics of racial

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segregation in the armed forces is the same as the rhetoric the military employs today to justify and legitimize the

politics of "the closet" n3 in the armed forces.

Several black antiracist proponents who joined the public debates about "Don't Ask, Don't Tell" challenged these

black/gay analogies. Specifically, [*1469] they argued that blacks are not like gays; therefore, the military's

discrimination against blacks is not the same as the military's discrimination against gays and lesbians. This Article

argues that the pro-gay rights employment of, and the responses of black antiracists to race/sexual orientation analogies

marginalized black gays and lesbians. Both the deployment of the analogies and the antiracist responses privileged

white homosexuality and black heterosexuality. Throughout the debates about "Don't Ask, Don't Tell," black identity

was represented as heterosexual and gay identity was represented as white.

The invisibility of black gays and lesbians in both gay rights and black antiracist discourses about "Don't Ask,

Don't Tell," raises serious questions about the legitimacy of civil rights agendas that fail to address intragroup

differences. Not all black people are straight. Not all gay people are white. Both of these points seem obvious enough.

Yet, black antiracism and white gay and lesbian civil rights advocacy n4 continues to reflect essentialized notions of

black and gay identity. n5 This essentialism reifies the idea that, in fashioning a civil rights agenda, all of the black

people (who matter) are straight and all of the gay people (who matter) are white. This Article challenges this

essentialism. It constitutes an antihomophobic intervention into black civil rights advocacy and an antiracistintervention into gay rights advocacy. These interventions highlight what I call the politics of intracommunity

differences - the political ways in which differences within a specific identity community are negotiated, politically

expressed, and represented in the community's civil rights agenda. n6

[*1470] There are several questions one might raise with respect to intracommunity differences. To what extent

do such differences render the community politically or ontologically unmanageable? n7 Does the negotiation of these

differences systematically privilege the victim status n8 of community members with particular identitities? Do certain

kinds of differences operate to disqualify individuals from membership in the community or to diminish their civil

rights standing? n9 This Article does not give full treatment to all of these questions. I have explored some of them more

fully elsewhere. n10 My aim here is more limited: (1) to complicate the ways in which we conceptualize and articulate

identity and identity-based communities n11 and (2) to suggest that how we conceive of identity and identity-based

communities both structures and determines [*1471] how we perform civil rights work. n12 I pursue both aims within a

specific political and antidiscrimination context: gay rights and black antiracist debates about the military's "Don't Ask,

Don't Tell" policy.

Part I situates black antiracist responses to race/sexual orientation analogies in the context of a broader discussion

about the ways in which some black antiracist practices - politics and civil rights engagements - normalize

heterosexuality. This normalization is reflected in two interrelated, though analytically distinct, arguments about the

negative relationship between black identity and homosexuality: (1) Black identity requires heterosexuality - in other

words, homosexuality is fundamentally unblack; and (2) Blackness and homosexuality are different - the former is

biologically determined identity, the latter is a freely chosen lifestyle. These arguments did not occupy the same

political or rhetorical space in the antiracist discourse about "Don't Ask, Don't Tell." In fact, the notion that

homosexuality is fundamentally unblack was rarely publicly articulated. But both arguments feed on each other

politically. That is to say, each exists in a discursive field that makes the other possible. Thus, it is difficult to

understand the vigor with which some antiracist proponents opposed race/sexual orientation analogies without having abroader understanding of how homosexuality is obscured, denied, and pathologized in some black antiracist discourses.

Part II shifts the analysis from black antiracist politics to white gay and lesbian civil rights activism. Here, I lay out

and critique the race/sexual orientation analogies some gay rights proponents deployed to challenge the military's sexual

orientation discrimination. In the context of this discussion, I advance two broad claims: (1) The analogies privileged

white gay and lesbian identities, and they marginalized black gay and lesbian identities; and (2) The rhetorical force of

the analogies derived, in part, from the ahistorical and essentialized ways in which gay rights proponents misrepresented

black identity and gay and lesbian identities.

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[*1472] Part III focuses on a specific aspect of the gay and lesbian civil rights strategy: the representation of gay

and lesbian victimization. It argues that gay rights challenges to the "Don't Ask, Don't Tell" policy created the

misimpression that, with respect to a civil rights agenda, all of the gay and lesbian people who matter are white. In part,

this impression was fostered by the fact that the gay rights advocates' representative gay man, the person they presented

as the icon of gay victimization, was white. The strategy was to present a "but for" gay man - a man, who, but for his

sexual orientation, was just like everybody else, that is, just like every other white heterosexual person. Moreover, to the

extent that lesbians were featured in the gay rights discourse, they, too, were white. n13 Notwithstanding that Perry

Watkins, a black army sergeant, was the first openly gay serviceman to challenge successfully the military's

discriminatory policies against gays and lesbians, n14 gay rights activists did not, according to Watkins, solicit his

participation. Nor did they meaningfully incorporate his story into their platform. Indeed, throughout much of the

controversy about the "Don't Ask, Don't Tell" policy, Perry Watkins was invisibly out of the closet.

I. Race, (Homo)Sexual Orientation, and Black Antiracism

The notion that blacks are not like gays takes several rhetorical forms in black antiracist discourse. This part outlines

two of these arguments: (1) Homosexuality is unblack, and (2) Race, unlike homosexuality, is biologically determined

and homosexuality, unlike race, is freely chosen. Most of the discussion focuses on the second claim, for it is clearly

reflected in and reproduced by some black public responses to race/sexual orientation analogies. n15

[*1473]

A. Homosexuality Is Unblack

Perhaps the most problematic argument about the relationship between black identity and homosexuality is the idea

that in a biological, cultural, and "natural" sense, homosexuality n16 is fundamentally unblack. n17 This notion has

[*1474] deep roots in black social and political culture, and it provides a backdrop for the emergence of the more

nuanced arguments some antiracist proponents advanced in the context of the "Don't Ask, Don't Tell" controversy.

Stated directly, the claim is that blacks are not like gays because homosexuality is a white phenomenon. n18 Nathan and

Julia Hare, for example, argued almost twenty years ago that there is "no[] need to engage in endless debates about the

pros and cons of homosexuality....Homosexuality does not promote black family stability and ... it historically has been

a product largely of the Europeanized society." n19 More recently, Louis Farrakhan suggested to gay black men that

"you weren't born that way brother....You never had a strong male image." n20

The idea "that homosexuality is something that white people "do' [and something that Black people should not "do']

has been circulated and reified in black communities at least since the 1960s." n21 This helps to explain why in [*1475]

1963 Bayard Rustin, a gay black man and one of the main organizers of the March on Washington, n22 was not accepted

by some members of the civil rights movement. n23 Rustin was not supposed to be a homosexual. And certainly, as a

homosexual, he was not supposed to represent the black community, n24 that is to say, assume the role of a "race man" -

a man with racial standing to articulate a political vision for black community building and uplift. n25 To the extent that

Rustin was to participate in the civil rights movement, his sexuality n26 would have to be contained; n27 he would have

to be invisibly out.

[*1476] Black assertions that homosexuality is a white phenomenon sometimes employ history as an explanation.According to the rap cultural icon Professor Griff of Public Enemy, for example, "In knowing and understanding black

history, African history, there's not a word in any African language which describes homosexual, y'understand what I'm

saying? You would like to make them part of the community, but that's something brand-new to black people." n28

The notion that homosexuality is "brand new" to black people is intended to convey the idea that precolonial black

people were exclusively heterosexual. Colonialism damaged the black race, the argument goes, by destroying the

heterosexual black family. This destruction was achieved by the emasculation of black men, reflected most clearly in

black gay identity, and the defeminization of black women, reflected most clearly in black lesbian identity. The claim,

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more directly, is this: "Before the white man came, African men were strong, noble protectors, providers, and warriors

for their families and tribes. In precolonial Africa, men were truly men. And women - were women. Nobody was

lesbian. Nobody was feminist. Nobody was gay." n29

This pre-Diaspora historiography clearly reveals the link between the racialization of homosexuality as white and

the ontological conception of blackness as heterosexual. Perhaps we are not surprised, then, when Molefi Asante, author

of Afrocentricity, asserts that homosexuality is not an "Afrocentric relationship[]." n30 Indeed, Asante's conception of

Afrocentricity n31 requires black homosexuals to subordinate their individual sexual orientation for the development of

healthy black families and a healthy black community. n32

In some sense, this revisionist heterosexual conception of the organization of the black family is a political response

to the social construction of black [*1477] family arrangements as dysfunctional. Consider, for example, Daniel P.

Moynihan's The Negro Family: The Case for National Action, which legitimized and popularized the notion of black

familial dysfunction. According to Moyhihan,

in essence, the Negro community has been forced into a matriarchal structure which, because it is so out of line with therest of American society, seriously retards the progress of the group as a whole, and imposes a crushing burden on the

Negro male, and in consequence, on a great many Negro women as well.

...

Ours is a society which presumes male leadership in private and public affairs. The arrangements of society

facilitate such leadership and reward it. A subculture, such as that of the Negro American, in which this is not the

pattern, is placed at a distinct disadvantage. n33

For Moynihan, the reversed roles of husband and wife within the black community not only impede black social and

economic development, they also produce social pathology. In this analysis, heterosexuality and male dominance are

posited as a political exit strategy for "the truly disadvantaged" - a way out of "the tangle of pathology." n34 Although

Moyhihan's report was written in 1965, the patriarchal and heterosexist content of his arguments continues to havepolitical purchase today - and in black antiracist discourse.

Of course, not all antiracist proponents or Afrocentrics share the notion that homosexuality threatens black

community well-being. n35 Indeed, many black people would vociferously disavow this idea. n36 Still, the notion

occupies sufficient political space in antiracist discourse to justify its reproduction here.

The more general problem for black gays and lesbians vis-a-vis black community politics and civil rights relates to

authenticity. n37 One's (in)authenticity as a black person is linked to, among other things, one's (homo)sexual identity.

As Cornel West observes, "black gay men who reject the major stylistic option of black machismo identity...[are]

penalized in black America for [*1478] doing so. In their efforts to be themselves they are told they are not really

"black men.'" n38 Real black men and real black women are resolutely heterosexual. n39 In some sense, being out as a

black gay or lesbian in the black community is race negating. n40 To the extent that it is not, black gays and lesbians are

required to prioritize or fragment aspects of their identity. n41 They have to decide whether, first and foremost, they

want to be black or gay. And they have to understand that choosing the latter portends "the death of the race." n42

B. Race Is an Identity; Homosexuality Is a Lifestyle

The more sophisticated, though not unproblematic, antiracist argument that gays are not like blacks is reflected in black

civil rights participation in the public debates concerning the "Don't Ask, Don't Tell" policy. To a large extent, the

purpose of the intervention was to critique the Gay Movement's [*1479] "appropriation" n43 of black civil rights

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symbols, heroes, and rhetoric. n44 Some of those who intervened opposed the black/gay analogies the gay rights

proponents employed to challenge "Don't Ask, Don't Tell." n45 This part focuses on the intervention of John Butler,

perhaps the most distinguished black American military sociologist. n46 Butler's argument reflects the simplistic notion

that race is a static identity and that homosexuality is a changeable lifestyle. He deploys this

race/identity-homosexuality/lifestyle dichotomy to challenge military discrimination against black, presumptively

heterosexual, people and to legitimize discrimination against homosexual, presumptively white, people. This part

unpacks and critiques Butler's claims. As I show, his arguments reflect an oppositional conceptualization of race and

homosexuality that normalizes and authenticates white gay and black heterosexual identities.

According to Butler, one should not compare homosexuality, which is colorblind and "running through all racial

groups," n47 with race, which arranges individuals into different groups. n48 To illustrate the nature of the difference

between race - read here: straight blacks - and sexual orientation - read here: [*1480] white gays and lesbians - Butler

asks the following rather pointed and rhetorical question: "Where did these people drink water during the days of

segregation? If the answer is that they drank from the "Whites Only' fountain, instead of the "Coloreds Only' fountain,

then their oppression should be seen in a different historical light than that of black Americans." n49

Interestingly, Butler seems to want to both recognize and deny black gay identity. He understands that

homosexuality is not race specific, that "it runs through all racial groups." n50

Yet, in thinking about blacks andsegregation he normalizes heterosexuality - it is his black identity starting point. Further, he racializes heterosexuality as

white. Thus, his question, "Where did these [gay] people drink water during the days of segregation?" The question

presupposes a white gay sexual identity, otherwise his query is not meaningful. Most of us know from which water

fountains black people drank in the segregated south. n51

But Butler is mindful that black gays and lesbians exist. He does not argue that blacks are not gay or that gays and

lesbians are not black. Further, he recognizes that "when someone says, blacks and homosexuals, they automatically

leave out blacks who are homosexuals." n52 Yet, Butler completely ignores or fails to realize that the argument "gays

are not like blacks" - elides the reality that blacks are in fact gay. n53 Indeed, the claim has force only if the gay and

black identity represented in the argument are, respectively, white and heterosexual.

Perhaps Butler's black/gay difference claim is best understood as a comparison between race qua race and

homosexuality qua homosexuality - between race unsexuated n54 and sexuality unraced. n55 And, perhaps Butler isinterested in disaggregating race from sexuality in this way to biologize race and socially construct (homo)sexuality.

The claim would be that, while homosexuality is behavioral and voluntary, race is not; n56 and while race is not

changeable, n57 [*1481] homosexuality is. Thus, "comparing homosexuals to blacks is comparing a lifestyle with a

race: an achieved characteristic with one that is ascribed; a choice in expressed lifestyle with one that is by and large not

a choice....Certainly there is more choice about one's sexuality than about one's race." n58

For at least two reasons Butler conceptualizes homosexuality as behavior. First, this conceptualization allows

Butler to argue that homosexuality is not an identity: "Men and women who engage in homosexual behavior do not

make up a separate racial or ethnic group; they do not have a history of all emerging from a common continent (there is

no country called homosexual land), but rather are found throughout all populations." n59 Significantly, Butler does

conceive of religious-based identities, n60 even though certain religions transcend specific racial and ethnic groups.

Failing to see that his conception of identity is not prepolitical (why is identity narrowly defined to mean belonging to aseparate racial, ethnic, or religious group?), Butler insists that "[a] white homosexual is just a white man with a different

sexual lifestyle, and a black lesbian is simply a black woman with a different lifestyle." n61

The rhetorical strategy at work in Butler's analysis is clear: "white" and "black" are deployed to convey identity

(conceptualized as static and fixed), and "homosexual" and "lesbian" are deployed to convey a lifestyle (conceptualized

as fluid and fixable). n62 From this, we are to conclude that there is agency [*1482] in homosexuality but not in race.

Race is a given; homosexuality is a choice. Race is the noun, homosexuality the verb. Thus, for Butler, a black lesbian

is really just another black person with a different lifestyle. n63

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Butler's conception of blackness normalizes heterosexuality. To be sure, Butler does not explicitly argue that the

normal black person is heterosexual. However, we can infer this much from his dichotomous representation of"black"

on the one hand versus "gay" and "lesbian" on the other. A slight modification of one of Butler's central claims reveals

the normalization of heterosexuality in his argument. Recall Butler's assertion that "[a] white homosexual is just a white

man with a different sexual lifestyle, and a black lesbian is simply a black woman with a different sexual lifestyle." n64

Insert the word "heterosexual" before "man" and "woman" and the sentence becomes: A white homosexual is just a

white heterosexual man with a different lifestyle, and a black lesbian is simply a black heterosexual woman with a

different lifestyle. This conception of blackness presupposes heterosexuality. n65 The black woman in Butler's argument

has to be heterosexual. For it is only with her heterosexuality [*1483] in mind that the black lesbian in the same

sentence becomes different. For Butler, homosexual blacks are heterosexual blacks, only less so. n66

The second reason why Butler formulates homosexuality as behavioral is to represent blackness in a way that

transcends sexual orientation, as though blackness exists outside of sexual identities. Butler's behavorialist

conceptualization of homosexuality allows him to conceive of race as an essential category, unmodified by sexuality.

His unmodified antiracism n67 imagines a black discriminatory experience that is tout court: "Black homosexuals, like

all blacks, have had a different experience in the workplace [than whites]." n68 Although I share Butler's observation,

his reasoning obscures the fact that heterosexual blacks and openly gay and lesbian blacks have different workplace

experiences as well. n69 Butler's racial essentialism ignores the extent to which the sexualization of race affects thenature and extent of discrimination against black lesbians and gays. n70

I should be clear to point out that my critique of the claim that "blacks are not like gays" is not intended to

legitimize race/sexual orientation analogies. That is to say, in interrogating Butler's analysis, I am not arguing that

blacks are in fact like gays. For as I will show, the analogizing of race to sexual orientation, the argument that blacks are

like gays, is buttressed by some of the same assumptions about black identity and gay identity that support the notion

that blacks are not like gays. I develop this argument below. Focusing on gay civil rights responses to "Don't Ask, Don't

Tell," Part II argues that gay rights activists' employment of (like the black antiracist resistance to) race/sexual

orientation analogies privileged black heterosexuality and rendered white identity the default race for lesbian and gay

experiences.

[*1484]

II. Eracing Race: Comparing Race and Sexual Orientation

During the "Don't Ask, Don't Tell" controversy, gay rights proponents sought to legitimize a sexual identity

antidiscrimination norm by analogizing to historical race discrimination. Specifically, gay activists compared the

military's current discriminatory practices against gays and lesbians n71 to the military's historical discriminatory

practices against blacks. n72 Thus, the following syllogism emerged: Because it is illegal and immoral for the military to

discriminate against blacks, it should be illegal and immoral for the military to discriminate against gays and lesbians.

n73

In a sense, the gay rights proponents were engaged in what Jane Schacter refers to as a "discourse of equivalents."

n74 This discourse is constituted by inquiries into "whether gay men and lesbians are sufficiently "like' other protected

groups, and whether sexual orientation is sufficiently "like' race." n75

Schacter is critical of a "discourse of equivalents"because, among other reasons, "current civil rights laws are held out as the normative baseline against which the gay

civil rights claim is tested." n76 Importantly, when Schacter speaks of a discourse of equivalents she does not have

pro-gay rights discourse in mind. Rather, she [*1485] is referring to the rhetorical strategy deployed by opponents of

gay rights initiatives and legislation, who invoke the analogy to delegitimize and undermine claims for gay equality and

equal protection. n77

Yet, a discourse of equivalents - blacks are like gays - is also problematic in the context of gay rights advocacy. In

this arena as well, this discourse must be "decoded." Not only does a discourse of equivalents suggest that gay and

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lesbian civil rights claims are legitimate only to the extent that gays and lesbians are perceived to be like blacks or other

racial minorities, it also falsely disaggregates race and sexuality. At least two consequences flow from this

disaggregation. For one thing, the disaggregation entrenches the perception that black identity and gay identity are

mutually exclusive categories with separate and distinct social realities. n78 For another, it contributes to the

normalization of white gay and black heterosexual identities. n79 Below I argue that both of these problems attended the

race/sexual orientation analogies gay activists employed to challenge "Don't Ask, Don't Tell." Moreover, the rhetorical

force of the analogies derived, in part, from the lack of attention gay rights proponents paid to history and social

context.

A. Facial Comparisons Between Race and Sexual Orientation: A Look at Language

To support the claim that the rationales proffered for the segregation of blacks in the military are the same as the

rationales proffered for the [*1486] exclusion n80 of gays and lesbians from the military, gay rights proponents often

invoke the anti-integration argument Admiral W.R. Sexton made in a 1942 memorandum to the Secretary of the Navy

(Navy Memorandum).

The close and intimate conditions of life [in the armed forces], the necessity for the highest possible degree of unity and

the esprit-de-corps; the requirement of the morale - all these demand that nothing be done which may adversely affect

the situation. Past experience has shown irrefutably that enlistment of the Negroes other than for mess attendants leads

to disruptive and undermining conditions. It should be pointed out in this connection that one of the principle objectives

by subversive agents in this country attempting to break down the existing efficient organization is by demanding

participation of minorities in all aspects of defense, because such participation tends to disrupt present smooth working

organizations....The loyalty and patriotism should be such that there be no desire on their part to weaken or disrupt

present organization. n81

According to David Smith, the spokesperson for Campaign for Military Service, a gay and lesbian coalition group,

substituting the words "gay" and "lesbian" for the word "Negro" reveals the similarities between the rationales the

military offered to justify black racial segregation in the armed forces, on the one hand, and the rationales the military

advances today to legitimize sexual orientation discrimination on the other. n82

Smith's argument has more force if we examine two additional texts: (1) a Department of Defense Directive

(Defense Directive) justifying the military's [*1487] discrimination against gays and lesbians, and (2) a 1942 statement

from the Secretary of the Navy (Navy Statement) supporting racial segregation in the armed forces. Consider first the

Defense Directive, which reads, in part:

Homosexuality is incompatible with military service. The presence in the military environment of persons who engage

in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct,

seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the

ability of the Military Services to maintain discipline, good order, and morale; to foster mutual trust and confidenceamong servicemembers; to ensure the integrity of the system of rank and command; to facilitate assignment and

worldwide deployment of servicemembers who frequently must live and work under close conditions affording minimal

privacy; to recruit and retain members of the military services; to maintain the public acceptability of military service.

n83

Now consider the Navy statement, which reads, in part:

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Men on board ships live in particularly close association; in their messes, one man sits beside another; their hammocks

or bunks are close together; in their tasks such as those of gun crew, they form a closely knit, highly coordinated team.

How many white men would choose, of their own accord, that their closest associates in sleeping quarters, at mess, and

in gun crews should be of another race? How many would accept such conditions, if required to do so, without

resentment and just as a matter of course? The General Board believes that if the issue were forced, there would be

lowering of contentment, teamwork and discipline in the service. n84

These texts suggest that at different historical moments in America the armed forces have employed military necessity

arguments to justify racial segregation in and the exclusion of gays and lesbians from the military. n85 Blackness and

homosexuality threaten military discipline, organization, morale, and readiness.

Given the use of military necessity rhetoric to enforce and legitimize heterosexism and racism in the military, one

might reasonably advance what I refer to as "language comparability argument" to connect racially and sexually

oriented military practices. The argument would go something like the following: The language the military employs to

justify the exclusion of gays [*1488] and lesbians from the military is the same as or similar to the language the

military employed in the past to legitimize black racial segregation. n86 Vis-a-vis race, this language has been

discredited. Thus, it should have no force with respect to sexual orientation.

There are several problems with language comparability arguments. First, facial comparisons of language obscure

the political and historical context in which the language is or was deployed. n87 Second, in the context of the "Don't

Ask, Don't Tell" controversy, comparability arguments about language became comparability arguments about identity

(black and gay) and discrimination (racism and homophobia). Third, comparability arguments about language, identity,

and experience erase black gay and lesbian identities and, simultaneously, obscure white gay and lesbian racial

privilege. This erasure and obfuscation of the racial dimensions to sexual identity, n88 helped to produce and to

legitimize a white gay and lesbian civil rights campaign.

[*1489]

B. The Language and the Obfuscation of History

Facial comparisons of language tell us nothing about the political and historical context of the language - that is to say,

when and politically why the language was written. Consider again the following language from the Navy Statement:

"Men on board ship live in particularly close associations; in their messes, one man sits beside another; their hammocks

or bunks are close together; in their common tasks such as those of gun crew, they form a closely knit, highly

coordinated team." n89 On its face, and read outside its historical context, this language seems more to be about

(homo)sexual anxiety than racial anxiety. The language invites us to think about "cruising" n90 - that is to say (and in

this context), the "gay gaze." The notion would be that heterosexual military men are worried about being the object of

gay desire, n91 for such [*1490] objectification threatens their notion of manhood. n92 Richard Mohr puts the point this

way:

The gay soldier's presence does not prevent the nongay soldier from performing any action, does not violate his liberty

in any way. Rather, what the nongay soldiers lose by gay soldiers' presence is the absolute authority to control the

interpretation of the meaning of their lives....That this is the nature of the fear is made clear by the military's own

admission that completely closeted gays are okay in the military. The desire of a completely closeted gay man is (at

least) whatever physical threat the desire of a noncloseted one is. But the completely closeted gay man and his

completely unacknowledged desire do not press the nongay man to reflect on his identity and place in the cosmos. The

nongay soldier's worry is not that his body will be raped but that his conception of himself will be raped, disrupted,

destroyed. The penis penetrates the body, but the gaze penetrates the soul. n93

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Read outside of its political and historical context, then, the language from the Navy Statement can be interpreted to be

about the relationship among [*1491] homosexual orientation, manhood, and military social norms - the extent to

which homosexual presence threatens white heterosexual manhood and white heterosexist military culture. n94

Of course, ideologies about masculinity and manhood are not irrelevant to the politics of racial segregation in the

armed forces. Indeed, masculinity - as a socially constructed n95 and reiterative identity n96 - is a very useful trope to

understand the complex ways in which military culture excludes certain groups. n97 As an historical matter, military

manhood has been buttressed by racism, sexism, and heterosexism. Consequently, the military has preferred [*1492]

people who are white, male, and heterosexual. n98 Still, in thinking about how military practices have affected people

who are not white heterosexual males, it is important to distinguish among three interrelated arguments. First, military

norms create a preference for an in-group, namely, white heterosexual men. Second, military preference for this

in-group effectuates discrimination against various out-groups, namely, all women and gay and straight men of color.

Third, the discrimination against each out-group - racism, sexism, and homophobia - is the same and/or is achieved in

the same way. n99 I agree with the first two arguments but disagree with the third. All three claims are reflected (and

sometimes conflated) in comparability arguments.

C. The Difference History Makes

Having argued that facial comparisons of language obscure history and social context, the question becomes, what

difference do history and social context make? In other words, how does the context of 1940s America help us

understand the language from the military statements justifying racial discrimination and exclusion?

Consider again the Navy Statement, written in the context of Jim Crow. The prosegregation military officials who

promulgated this document were not worried about black (presumptively heterosexual) men cruising white

(presumptively heterosexual) men. n100 The concern was not about the gay gaze or gay bodies, though bodies certainly

mattered n101 - especially black bodies. n102 Instead, the Navy Statement reflects the then pervasive notion of the black

body as contaminated and contaminating, n103 and the notion of black people as inferior. When, [*1493] for example,

Congressman Stephen Pace from Georgia argued, in a letter to the Secretary of the Navy, against racial integration of

the armed forces on the ground that "white boys [would be] forced to sleep with...negroes," n104 his fear was not about

gay men homosexually sleeping with heterosexual men; rather, he was worried about black men interracially sleeping

with white men. n105 Here, racial penetration is at stake. n106 Military officials and politicians were worried about the

"amalgamation of the races" n107 - that is to say, interracial intimacy. n108 In this sense, racial segregation in the armed

forces was an important part of the disciplinary apparatus of Jim Crow; it reflected and reinforced the racial logic of

Plessy v. Ferguson; n109 it signified and reproduced black second-class citizenship.

[*1494] In fact, the military often justified racial discrimination against blacks by arguing that such discrimination

was normative - an acceptable aspect of American social, political, and legal culture. Consider, for example, the

argument the Chairman of the Navy invoked to defend the navy's racially discriminatory policies:

"The Navy Department is accused of discriminating against the negro by refusing to permit the enlistment of negroes, inthe Navy, in other than messman ratings. If such is discrimination, it is but part and parcel of similar discrimination

throughout the United States....The reasons for discrimination, in the United States, are rather generally that:

(a) the white man will not accept the negro in a position of authority over him;

(b) the white man considers that he is of a superior race and will not admit the negro as an equal; and

(c) the white man refuses to admit the negro to intimate family relationships leading to marriage.

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These concepts may not be truly democratic, but is it doubted if the most ardent lovers of democracy will dispute

them, particularly in regard to intermarriage." n110

Military officials and politicians understood perfectly well that integrating the armed forces would create racial

precedent for a broader-based racial integration movement. They knew, in other words, that racial integration in the

armed forces would highlight, challenge, and call into question racial segregation in American life. Black antiracist

proponents knew this as well - that military participation, especially combat, undermines societal discrimination,

[*1495] especially racial discrimination. n111 The thinking was that if black people performed a citizenship duty,

perhaps they would be granted citizenship rights. n112 In short, black civil rights proponents attempted to exploit, and

white military officials and politicians worked racially to control, the citizenship-conferring possibilities of military

service.

To be sure, this exploit/control citizenship dynamic was reproduced in the public debates about "Don't Ask, Don't

Tell." That is to say, gay rights activists attempted to exploit and military officials attempted to control the

citizenship-conferring possibilities of military service. People on both sides of the "Don't Ask, Don't Tell" controversy

understood that sexual orientation equality in the military would create precedent for sexual orientation equality in all

aspects of American life. More was at stake than the narrow, though important, question of whether gays and lesbians

should be permitted to serve openly in the military. n113 The debates about sexual orientation and military service, likethe debates about race and military service, are really about citizenship. n114

And indeed, "citizenship and eligibility for military service have gone hand in hand." n115 In other words, one's

citizenship standing relates to, among other things, one's eligibility, or worthiness, for military service. n116 Because the

[*1496] military has employed both race and sexual orientation to police military membership, it makes sense that,

with respect to civil rights strategy, there would be some convergence between gay rights and black antiracist

challenges to military discrimination.

Articulating the connections between race, sexual orientation, and military status on the one hand, and race, sexual

orientation, and citizenship status on the other, is important. However, in doing so, we should examine the extent to

which the role the military historically has played in restricting the rights and the duties of citizenship by race differs

from the role the military currently plays in restricting those rights and duties by sexual orientation. Of course, there are

similarities. Thus, I am not suggesting we should never advance language comparability arguments. n117 I am simply

urging caution. Facial comparisons of race and sexual orientation obscure important history. n118 David Smith's

invocation of the Navy Memorandum does precisely that. Specifically, his analysis does not attend to an important and

uncontestable historical reality: The language in the Navy Memorandum reflects the military's unwillingness to

challenge the racial logic of Jim Crow. In this sense, it is formative and reflective of a segregationist regime that

enforced racial hierarchy. n119 Substituting the words "gay" or "lesbian" for the word "Negro" in the Navy

Memorandum obscures this racial history. n120 More than that, the black/gay rhetorical substitution does discursive

violence n121 to black peoples' subordinating experiences under Jim Crow.

[*1497]

D. Identity Switching

There is another problem with analogizing the language the military employed to discriminate against black people in

the 1940s with the language the military currently employs to discriminate against gays and lesbians. This problem

relates to what I call "identity switching." Recall again the argument that substituting the words "gay" and "lesbian" for

the word "Negro" in the Navy Memorandum reveals the similarities between the military's historical arguments for

racial discrimination against blacks and its current arguments for discrimination against gays and lesbians. n122 This

black/gay rhetorical substitution can be understood to be an argument about language. As I have suggested, this is an

important, though controversial, argument to make. Here, I critique the identity switch the argument effectuates.

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To the extent that black identity and gay identity are simply switched, the impression is created that in some

substantive sense (1) gay identity and black identity are very similar; and (2) at least in the context of the military,

historical racial discrimination against blacks is similar to current sexual orientation discrimination against gays and

lesbians. One problem with facial comparability arguments about language, then, is that they easily become or are

interpreted as comparability arguments about identity (black and gay) n123 and/or discrimination (racism and

homophobia). n124

The question now becomes: What is wrong with comparability arguments about identity and/or discrimination?

Even if one agrees with the claim that comparability arguments about language promote or inevitably become

comparability arguments about identity and discrimination, one still might ask, "So what?" Indeed, if one is of the view

that the identities or the discriminatory experiences being compared are in fact alike, one might take the position that

such comparisons are a good thing - descriptively accurate and politically pragmatic. Below, I demonstrate what is

wrong with identity comparability arguments. To do so, I distinguish between interracial and intraracial comparisons. I

employ the black/gay rhetorical substitution argument to illustrate the interracial problem and the common pro-gay

rights claim "we [gay people] are just like everybody else" to illustrate the intraracial problem.

[*1498]

1. The Interracial Race/Sexual Orientation Analogy

The suggestion that we can and should substitute the word "Negro" in the Navy Memorandum with the word "gay" or

"lesbian" is troubling for two interrelated reasons. Not only does this substitution advance the notion that blackness and

homosexuality are exclusive identities, it also renders whiteness the default race n125 for homosexuality, and

heterosexuality the default sexual orientation for black people. n126 In other words, the black/gay rhetorical substitution

constructs an interracial race/sexual orientation analogy in which whiteness overdetermines the content of gay and

lesbian identities, and heterosexuality overdetermines the content of black identity. The substitution invites a

comparison between black (heterosexual) victimization caused by past racist military practices and (white) gay and

lesbian victimization caused by current homophobic military practices. Blackness is employed here not to discuss black

homosexual identity, for example, how "Don't Ask, Don't Tell" affects black gays and lesbians, but rather historically to

discuss black racial identity, for example, how the military's past racist practices affected - heterosexual and closeted -

blacks. Blackness is relevant here only to the extent that it supports a narrow conception of gay rights. n127

Whiteness is employed not to racialize the pro-gay rights discourse, white gay and lesbian identity, or current racial

military practices, n128 but to draw attention to the similarities between the discussions in the 1940s about the legitimacy

of a racially segregated military and current discussions about the legitimacy of excluding openly gay and lesbian

individuals from the military. n129 The gay activists' misuse of whiteness obscures how race is implicated in and

[*1499] racism is reproduced by current military culture and elides the racial aspects of gay identity. In the interracial

analogy, whiteness is relevant only in a historical sense. Invisible, then, is not only how whiteness operates as a racial

norm for homosexual identity and how heterosexuality operates as a sexual identity norm for black racial identity, but

also how race structures contemporary military practices. The comparison is between ostensibly unsexuated n130

heterosexual black people (who were affected by historical racial discrimination in the military) and ostensibly unraced

white gays and lesbians (who are affected by contemporary sexual orientation discrimination in the military). The

interracial analogy conveys the idea that to be black is to be heterosexual; to be homosexual is to be white. Figure 1attempts to capture these points more schematically.

Figuure 1

[SEE FIGURE IN ORGINAL]

Point 1 identifies and invites a comparison between two forms of discrimination: racially and sexually oriented.

Point 2 identifies and invites [*1500] a comparison between black identity, which is affected by racial discrimination,

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and gay and lesbian identities, which are affected by sexual orientation discrimination. Point 2 reflects the argument that

blacks are like gays. Here, the sexual orientation of blacks and the racial identity of gays and lesbians are unspecified.

Point 3 illustrates the interracial nature of Point 2's black/gay analogy. It delineates black identity in terms of sexual

orientation and homosexual identity in terms of race. This delineation suggests four analogies:

Analogy 1: Homosexual blacks are like black homosexuals,

Analogy 2: Homosexual blacks are like white homosexuals,

Analogy 3: Heterosexual blacks are like black homosexuals, and

Analogy 4: Heterosexual blacks are like white homosexuals.

The question becomes which, if any, of the foregoing analogies were gay rights proponents advancing under the more

general claim that "blacks are like gays"? It is unlikely that they were advancing either of the first two analogies. With

respect to the first, the idea that homosexual blacks are like black homosexuals is not controversial. Indeed, one might

argue that this is not an analogy at all, that the identities being compared are exactly the same. However, even if one

takes the position that the two identities are not the same - that the assertion of a homosexual black identity has a

different social meaning than the assertion of a black homosexual identity - the "analogy" remains largely

uncontroversial. With respect to the second, the claim that homosexual blacks are like white homosexuals does little to

challenge the "Don't Ask, Don't Tell" policy. All gays and lesbians, regardless of their race, are subject to the

requirements of the policy.

Nor is it likely that gay rights proponents were interested in advancing the third analogy - namely, that heterosexual

blacks are like homosexual blacks. This analogy would have limited political value in the context of a gay rights

campaign that focused attention on military discrimination against white lesbians and gays. n131 This brings us to the

fourth analogy: Heterosexual blacks are like white homosexuals. To the extent that this analogy is accepted, it has

enormous political purchase. Because the military is prohibited from discriminating against heterosexual blacks, the

arguments that heterosexual blacks are like homosexual whites helps to delegitimize discrimination against the latter.Point 4 on the diagram reflects this analogy.

[*1501]

2. The Intraracial Race/Sexual Orientation Analogy

The intraracial race/sexual orientation analogy is reflected in the following claim: "We (gays and lesbians) are just like

everybody else." Consider, for example, Margarethe Cammermeyer's statement to the New York Times explaining why

she was challenging her discharge:

What I hope to represent is a part of the normality of being homosexual, of not being in leather or shaving my hair, butrather showing how much we are all alike....If people can see the sameness of me and you, then perhaps they won't have

the walls that makes it so that they have to hate us. n132

Cammermeyer's plea constitutes a form of white racial bonding. Quite apart from any intentionality on Cammermeyer's

part, her statement functions to convince white heterosexual people that white gay and lesbian people are just like white

heterosexual people. To appreciate this point, one has to unpack the "we" and the "everybody else" in Cammermeyer's

claim. It is clear that Cammermeyer's "we" is not intended to include all gay and lesbian people. Indeed, Cammermeyer

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explicitly distances herself from the leather-wearing and hair-shaving gays and lesbians. n133 She wants to present "the

normality of being homosexual." n134 Significantly though, Cammermeyer does not explicitly invoke her whiteness.

Nor does she explicitly distance herself from gays and lesbians who are not white. How, then, does her statement

function as white racial bonding? To answer this question, the "we" in Cammermeyer's claim must be considered in

conjunction with the "everybody else."

Cammermeyer's statement could be interpreted to mean each of the following:

Claim 1: All gays and lesbians are like all Americans,

Claim 2: All gays and lesbians are like all heterosexuals,

Claim 3: White gays and lesbians are like all Americans,

Claim 4: White gays and lesbians are like all heterosexuals, and

Claim 5: Normal white gays and lesbians are like normal white heterosexuals.

It is unlikely that Cammermeyer is advancing any of the first four claims. As previously suggested, Cammermeyeris not speaking for or claiming a shared [*1502] identity with all gays and lesbians. She is interested in representing

and identifying with normality. Her investment in normality suggests as well that she is not speaking to all Americans,

which presumably would include all gays and lesbians, or even to all heterosexuals, which presumably would include

countercultural, nonmainstream heterosexuals. Her political audience is "normal," or mainstream, Americans.

The question, then, is whether Cammermeyer is advancing the fifth claim. That is to say, whether she is speaking

for normal white gays and lesbians and to normal white heterosexuals. The answer, I believe, is yes. n135 Decoded,

Cammermeyer's claim that "we [gays and lesbians] are just like every body else" becomes, notwithstanding our

homosexuality, we are still white - virtually normal. n136 But for our sexuality, we would be the same as you. n137 The

comparison [*1503] here is really between white gays and lesbians and white heterosexuals. It is intraracial.

Cammermeyer is not speaking for or to black people; black people are not considered to be "just like everybody else."

To be black is to be different - especially with reference to white people. In other words, blackness and whiteness are

oppositional racial signifiers. n138 White is what black is not (and can never be) and black is what white is not (and can

never be). Given the significatory relationship between black and white identities, the political incentive for

Cammermeyer to speak to black heterosexuals is rather weak. The social meaning of blackness suggests that black

people exist outside of the "everybody else" in Cammermeyer's claim.

Nor is there a strong incentive for Cammermeyer to speak for black gay and lesbians. The "we gay people are just

like everybody else" argument has considerably less force vis-a-vis the white heterosexual community if it is racially

rearticulated as "we Black gay people are just like everybody else." Unlike white gays and lesbians, black gay people,

because they are black and gay, can never be "but for" gay people. Unwittingly or not, Cammermeyer's claim exploits

the political normality and representativeness of whiteness.

3. The Implications of the Critique

My critique of the gay activists' employment of race/sexual orientation analogies is not intended to suggest that

comparing race to sexual orientation is always inappropriate. n139 I am not advancing a categorical argument here - that

"in the case of homosexuals in the military, the racial metaphor should [*1504] not be utilized." n140 However, the

"sameness rhetoric signals a...choice to ignore a whole series of differences for strategic reasons." n141 Put differently,

we decide, oftentimes for pragmatic reasons, what to make similar and what to make dissimilar. We decide why, when,

and how to analogize. n142 The why for gay rights proponents was the legitimation of a sexual identity

antidiscrimination norm. The when included the public debates about the "Don't Ask, Don't Tell" policy. n143 The how

was to invoke historical racial discrimination against blacks in the military. Lost in the gay rights activists' deployment

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of the analogies is the reality that white gays and lesbians are raced and that black gays and lesbians exist. Race/sexual

orientation analogies should not be employed without explicitly grappling with their intersectional realities. n144

Of course, white gay rights proponents know that gays and lesbians have different racial identities. Of course, they

know that some gays and lesbians are white, others are black, and still others are neither. Yet, their political responses to

"Don't Ask, Don't Tell" do not address the intersection of race and [*1505] sexual orientation. n145 On the contrary,

gay rights advocates articulated "blacks" on the one hand, and "gays" and "lesbians" on the other, as unmodified identity

categories. That is to say, they essentialized race and sexuality, obscuring white racial advantage and black sexual

identity disadvantage. n146

III. Representative Gay Men (Where Was Perry Watkins?)

Thus far, I have argued that gay activists' employment of race/sexual orientation analogies deracialized aspects of

sexual identity and desexualized aspects of racial identity. Black identity was essentialized as heterosexual and gay

identity was essentialized as white. Racializing gay identity and sexuating black identity would have compelled the gay

rights advocates to recognize not only black community identity differences (for example, the differences between

heterosexual blacks and lesbian and gay blacks) but also gay community identity differences (for example, the

differences between gay and lesbian blacks and gay and lesbian whites). This, in turn, would have required them toaddress the extent to which their own civil rights advocacy reflected racial hierarchy that privileged the identity position

or victim status of white gay men and, to a lesser extent, white lesbians. n147

The racial hierarchy that gay rights advocacy produced was not just discursive, it was material as well. Gay rights

activists selected specific individuals n148 [*1506] to function as representatives for gay and lesbian victimization. The

experiences of these individuals - and their complete identities - were deployed to give content to, or put a face on, the

social, economic, and psychological costs of military discrimination for lesbian and gay people. The hope was for this

strategy to convey that real people - innocent, decent, hardworking people - people who were "just like everybody else,"

were being harmed by military homophobia.

The real people gay rights proponents used to advance this story were themselves overwhelmingly white. More

than that, they were "but for" gay people - people who, but for their sexual orientation, were perfectly mainstream. n149

These icons of gay victimization were represented, in fact marketed, as "All American Kids" - the children next door.The images of gay identity that the gay activists presented to the American public were respectable and white.

This white representation of gay and lesbian victimization was problematic given the availability of nonwhite gays

and lesbians. Particularly noteworthy here is that while Perry Watkins, a black army sergeant, established animportant

milestone when he became the first openly gay serviceman to challenge successfully the military's antigay policy, n150

gay civil rights proponents did not, according to Watkins, solicit his advice or ask him to participate in their efforts. n151

Nor did Watkins's story n152 feature prominently in the pro-gay rights discourse about military discrimination. The

representative gay men [*1507] were white, and most of the attention focused on Keith Meinhold, n153 a navy petty

officer, and Joseph Steffan, n154 a former midshipsman who was expelled from the Naval Academy a few weeks before

graduation. n155

Watkins's participation in military life prior to the gays in the military debates deserves further elaboration. His

visible presence as an openly gay black man in a heterosexist military culture makes his invisibility in the gay rights

discourse all the more curious. n156

[*1508]

A. Perry Watkins: Invisibly Out

Watkins was nineteen years old when he was drafted into the military. n157 He was drafted for three years despite his

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"yes" to the question on the enlistment form regarding homosexual tendencies, and notwithstanding the military's

express policy of excluding and expelling homosexuals. n158 After a year of military service, Watkins was subjected to

a criminal investigation of his sexual activities. Watkins again acknowledged his homosexuality in an affidavit. n159

Specifically, Watkins indicated that "he had been a homosexual from the age of thirteen and that, since his enlistment,

he had engaged in sodomy with two other servicemen." n160 Apparently, Watkins's affidavit was not adequate evidence

of his sexual orientation. Incredibly, the army ended the investigation due to "insufficient evidence." n161

Watkins's performances in drag - at recreational centers, social clubs, and other official and unofficial military

gatherings n162 - would also have raised questions about his sexuality. The military often specifically requested these

performances. n163 And they were always extremely well attended. Given the tendency to conflate sex, gender, and

sexual orientation, n164 Watkins's drag performances would have created, at the very least, a question mark about

whether Watkins was a "real" military man - that is to say, a heterosexual. n165

[*1509]


Figure 2: Watkins as Simone

Subsequent to his initial enlistment and despite the military's awareness of his sexual orientation, n166 Watkins was

enlisted in the military three additional times: 1971, 1974, and 1979. n167 Not until 1982 did the army discharge

Watkins for the very "misconduct" it had previously chosen to ignore, tolerate, and even defend. n168 Watkins

challenged his discharge and ultimately won. n169

[*1510] The fact that Watkins was gay and out was insufficient to render him a gay rights icon. According to Tom

Stoddard, a white gay lawyer who directed the Campaign for Military Service, n170 "there was a public relations

problem with Perry [Watkins]." n171 The question is whether this public relations problem was a function of Watkins's

race or his countercultural image - more specifically, his drag identity and the fact that he wore a nose ring. Certainly

Stoddard was concerned about the latter. n172 Given this concern, one reasonably might take the position that, but for

Watkins's nose ring, his story would have more meaningfully figured into the gay rights discourse about military

discrimination. That is to say, Watkins's invisibility in this discourse was not a function of his race.

I am not persuaded by this claim. To be sure, Watkins's counter cultural image positioned him outside of the "gay

and lesbian mainstream." Yet, this aspect of his identity was, to employ the parlance of the politics of respectability,

fixable. In other words, if gay rights proponents were otherwise invested in telling Watkins's story, they could have

reconstructed his public identity to make him more palatable. Concretely, they could have removed the nose ring and

dressed him up in a suit. Significantly, I am not suggesting that the employment of this strategy would have been

legitimate. And it is quite clearly superficial. Rather, my point is that while Watkins's race and his nose ring (and

certainly both together) diminished the likelihood that gay rights activists would invoke his story and his identity to

challenge the "Don't Ask, Don't Tell" policy, there was little to be done about Watkins's race. Watkins's nose ring, but

not his race, could be removed. The images in Figure 3 illustrate just that: Watkins in public - "respectably" - without

his nose ring. n173

[*1511]


Figure 3: "Respectable" Watkins Without Nose Ring

There are at least three additional reasons to question the claim that Watkins's nose ring, or his countercultural image

apart from his race, best explains the absence of his story from gay rights challenges to "Don't Ask, Don't Tell." The

first relates to the absence of other black gay bodies during this debate. The racial representation problem here is not

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just that Perry Watkins's story was marginalized but also that the stories gay rights proponents told about military

discrimination featured white people. For example, notwithstanding that black lesbians are discharged from the Marine

Corps at a significantly higher rate than white males, n174 gay rights proponents did not [*1512] present them as

victims of military discrimination, let alone as icons. Indeed, the story of black lesbians in the military remains to be

told. n175

There is a second reason to think that race helps to explain the lack of attention gay rights proponents paid to

Watkins's experiences in the military: the racial link between the discursive construction and the material representation

of gay identity. Recall that the pro-gay rights arguments against military homophobia reflected a white conception of

gay identity. This discursive rendering of gay as white required a material representation, a physical embodiment, of

gay as white. Had gay rights proponents invoked Watkins's identity, they would have had to tell a more complicated

story about the relationship between race and racism on the one hand and sexual orientation and homophobia on the

other. They could not so easily have dissagregated black from gay. They could not so easily have claimed that "blacks

are like gays." n176 Closeting Watkins's identity provided gay rights activists with the material space to present, and the

discursive space to articulate, gay as white.

A final way to employ race to account for Watkins's invisibility in the gay rights challenges to "Don't Ask, Don't

Tell" is to focus on Watkins's explanation for this invisibility. According to Watkins, gay rights activists marginalizedhis story because they perceived that he would be racially unpalatable to mainstream Americans. As previously

mentioned, Margarethe Cammermeyer, a white woman and a member of the National Guard, n177 came out as a lesbian

during the gays in the military debates and became, according to Watkins, a gay rights "poster child[]" for

demonstrating military injustice. n178 Commenting [*1513] on how Cammermeyer was received by the gay

community and employed as a gay icon, Watkins remarked ""we'll go with a [white] woman who lied for twenty-six

years before we go with' a black man who had to live the struggle nearly every day of his life." n179 For Watkins, race

helped to explain the lack of attention the gay rights proponents paid to him and to his story.

Given the foregoing racial critique, one reasonably might ask, what, vis-a-vis Watkins, should the gay rights

proponents have done differently? At the very least, his story should have been featured more prominently in their

public n180 discourse about "Don't Ask, Don't Tell." To the extent that Watkins's story had been central, rather than

peripheral, to the gay rights advocacy, gay rights proponents could more easily and legitimately have drawn upon the

rhetoric and symbols of the civil rights movement. However, gay rights proponents could not credibly have made the

claim that gay rights are black rights because, among other reasons, they ignored black gay victims of military

homophobia. The experiences of black gay and lesbian service persons were closeted, even though some of them, like

Watkins, were out of the closet. The most public of the casualties of the military's heterosexism were white. n181

[*1514]

B. Representational Gay Politics: When White Is "In" and Black Is "Out"

"How could they have selected that radical woman," he asked, "who's practically a nigger?" n182

An argument can be made that the gay activists' choice of Meinhold over Watkins relates to the representational

capacity of whiteness. n183 The notion would be that white gay people, notwithstanding (or precisely because of) their

whiteness, can represent the experiences of all gays and lesbians. n184 Given the normalization and valuation of

whiteness in our society, n185 certainly this argument is credible. Yet, it might overstate the extent to which race

explains why Meinhold and Cammermeyer were employed as gay icons, and Watkins was not. After all, the Watkins

litigation preceded the "Don't, Ask, Don't Tell" controversy by several years. n186 One might reasonably claim, then,

that by the time the gay rights community was politically gearing up to challenge the military's treatment of gays and

lesbians, Watkins's story was no longer ripe; it had lost its cultural and political currency.

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This ostensibly race-neutral explanation has some explanatory value. However, the determination as to whether a

particular story has political currency is itself a race-based decision, even taking account of the passage of time. To

better appreciate this point, one might ask the following "race-switching" question: Would Watkins's story have played

a more important role in gay civil rights efforts against the "Don't Ask, Don't Tell" policy if [*1515] Watkins had been

white? My sense is that it would have, but there is no real way to verify that claim. n187

Nor do concerns about race disappear when the decisions to employ Cammermeyer and Meinhold as symbols of

gay victimization are articulated as strategic choices. The perceived political efficacy of these decisions relates to the

racial context in which they are being made. Undoubtedly, it was easier for the gay rights proponents to sell white gay

people to mainstream America - as well as to the gay and lesbian community - as civil rights icons than it would have

been for them to sell a black gay man (with or without a nose ring).

And there is real reason to believe that it was precisely this sort of race-based pragmatism - or representational

politics - that informed the gay rights challenges to "Don't Ask, Don't Tell." Gay rights proponents employed the media

to create a countergay spectacle n188 to the more "outrageous," n189 politically "radical," n190 and sexually "deviant"

n191 images of gay and lesbian people. The strategy was to present a spectacle of gay respectability. n192 Consider, for

example, how Steffan, who was expelled from the Naval Academy a few weeks before graduation, was positively and

respectably spectacularized for American social and political consumption:

CBS Nightwatch, or it could be 20/20, Nightline, Donahue, or the Today Show. The host is interviewing Joseph

Steffan....Raised in the Midwest, Catholic, a choir boy in his local church. Steffan was the kid next door. Clean-cut, an

excellent student, exceptional in track, he took as [*1516] his date for the senior prom the high school's homecoming

queen. From his small town in Minnesota, Joe Steffan entered Annapolis. At the Academy he was ranked in the top ten

in his class, became battalion commander his senior year, and received the unique honor of twice singing, solo, the

national anthem at the Army-Navy game.

The TV monitor shifts to a film of Joe Steffan, standing on a platform as the Army-Navy game is about to begin,

bearing erect, singing the anthem against the red, white, and blue backdrop of the American flag waving in the stadium

breeze. The television studio camera again trains its lens on Joe Steffan's face, his sincere gaze, his seriouseyes....Joseph Steffan...is now "out" to the USA. n193

Significantly, it is not just Steffan who is "out" here; for, in this context, Steffan, like Meinhold, functions as a

representative gay man. He is respectable. n194 He is accomplished. He is an athlete. He is American. He is white. He is

the kid next door. n195 And n196 he is also gay.

According to Alexander Robinson, an American Civil Liberties Union lobbyist, the gay rights strategy was

intended to do more than construct gay and lesbian military personnel as "average American kids." The aim was to

present such individuals as "well-above-average patriotic citizens, all of them, red, white, and blue, [with] extraordinary

military records, willing to die for their country." n197 Without a doubt, the gay rights proponents were engaged in a

media campaign. n198 They wanted to put a face on gay victimization. That, of [*1517] course, is precisely what they

did. The problem, however, is that their facial representation, like the discursive rendering, of gay identity was white.


Figure 4: Meinhold

Conclusion: ManagingIdentity

The starting point for this Article was the observation that how we conceptualize identity informs how we perform civil

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rights activism. For example, if black identity is conceptualized as male and heterosexual, or if male heterosexuality

operates as a default subject position, civil rights efforts ostensibly on the behalf of the entire black community will

privilege the victim status of black heterosexual men. n199 Similarly, if homosexuality is conceptualized [*1518] as

white and male, or if white homosexuality operates as a default subject position, white gay male experiences will

overdetermine the substance of civil rights efforts ostensibly on behalf of the entire gay community. Thus, civil rights

proponents need to think carefully about not only how they conceptualize identity but also, correlatively, about how

they define identity-based communities. n200 More specifically, civil rights proponents need to account for and give

content to identity multiplicity.

Yet, there are barriers to taking identity multiplicity seriously, not the least of which is current antidiscrimination

law. Plaintiffs today have a hard time bringing compound discrimination claims - claims based on more than one aspect

of a person's identity, for example, the fact that a person is black and female and lesbian. For one thing, certain identity

categories (like sexual orientation) are unprotected under antidiscrimination law. n201 For another, even to the extent

that courts recognize compound discrimination, they employ a narrow framework to adjudicate the claim. Consider, for

example, the sex plus framework. Under this framework, a plaintiff is permitted to assert that she was discriminated

against based on her sex plus only one other protected identity category. n202 To the extent that compound

discrimination claims are not cognizable, are restricted, or are difficult to establish, there is no strong incentive for

lawyers bringing civil rights actions to interpret the facts of a particular discrimination case as arising - coconstitutivelyn203 - from more than one identity category.

But not all civil rights engagements are court centered. Indeed, many of our most controversial contestations over

equality take the form of public [*1519] discourse - for example, press conferences, rallies, or marches. Whenever this

is the case, there is an opportunity for civil rights proponents to educate the public about identity multiplicity and its

relevance to civil rights advocacy. In this sense, black antiracist and pro-gay rights contributions to the debates about

"Don't Ask, Don't Tell" reflected a failure on the part of both civil rights communities to complicate public

conversations about identity and equality.

Complicating black identity does not, of course, require that in every context blackness be articulated with gender

and sexual orientation specificity. Sometimes it is meaningful and politically useful to speak of the black community as

such without further particularity, even if the term "the black community" always already presumes too much. n204 Nor

does the complication of gay identity require, in every context, that homosexuality be articulated with gender and racial

specificity. Sometimes it is meaningful and politically useful to speak of the gay community as such without further

particularity, even if the term the "gay community" always already presumes too much. What I am critiquing, then, is

the discursive rendering of identity and community - the mobilization of terms like "black" and "gay" and "black

community" and "gay community" - politically to authenticate, n205 and thus privilege, certain identities and to

inauthenticate, and thus marginalize, others. In the context of the "Don't Ask, Don't Tell" controversy, the politics of

authenticity operated to exclude the identities and thus experiences of black gays and lesbians from black antiracist and

gay rights agendas. Consequently, throughout the debates about "Don't Ask, Don't Tell," black gays and lesbians were

invisibly out. n206

Legal Topics:

For related research and practice materials, see the following legal topics:

Education LawFaculty & StaffMisconduct & PerformanceSexual MisconductSexual PreferencesLabor & Employment

LawDiscriminationGender & Sex DiscriminationCoverage & DefinitionsSexual Orientation

FOOTNOTES:

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n1. In 1993, President Bill J. Clinton pledged to lift the ban on gays and lesbians serving in the military. What followed instead was a

political contest between the President and Congress, with Clinton settling on a compromise: the "Don't Ask, Don't Tell" policy. The policy

was originally articulated in a U.S. Secretary of Defense memorandum dated July 19, 1993, entitled "Policy on Homosexual Conduct in the

Armed Forces" and subsequently became the National Defense Authorization Act for fiscal year 1994, Pub. L. No. 103-160, 571, 107 Stat.

1547, 1670 (1994) (codified at 10 U.S.C. 654 (1994)). See William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 173 &

429 n.1 (1999). The implementing regulations are found in the Department of Defense Directive Nos. 1332.14.H (separation of enlisted

personnel), 1332.30.H (separation of officers), and 1304.26 (enlistment). See id. For a detailed history of the passage of the "Don't Ask,Don't Tell" policy, see Janet E. Halley, Don't: A Reader's Guide to the Military's Anti-Gay Policy 1926 (1999).

n2. See William N. Eskridge, Jr., Race and Sexual Orientation in the Military: Ending the Apartheid of the Closet, 2 Reconstruction 52, 53

(1993) (observing that General Colin Powell "rejects any comparison of the military's current exclusion of lesbians, gay men, and bisexuals

to its historical segregation of African Americans").

n3. See William N. Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 82 Iowa L. Rev.

1007, 1011 (1997); see also Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity,

36 UCLA L. Rev. 915 (1989).

n4. I do not mean to suggest that all black a ntiracism and all gay and lesbian civil rights advocacy reflect this essentialism.

n5. See generally Richard Delgado, Rodrigo's Sixth Chronicle: Intersections, Essences, and the Dilemma of Social Reform, 68 N.Y.U. L.Rev. 639 (1993); Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807

(1993); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990); Randall L. Kennedy, Racial

Critiques of Legal Academia, 102 Harv. L. Rev. 1745 (1989); Joan C. Williams, Dissolving the Sameness/Difference Debate: A

Post-Modern Path Beyond Essentialism in Feminist and Critical Race Theory, 1991 Duke L.J. 296.

n6. Much of critical race theory focuses on the specific ways in which law contributes to or fails to ameliorate racial subordination. See,

e.g., Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101

Harv. L. Rev. 1331 (1988) [hereinafter Crenshaw, Race, Reform]; Alan David Freeman, Legitimizing Racial Discrimination Through

Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1449 (1978); Ian F. Haney Lopez, The Social

Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. Rev. 1 (1994). As a result of this

literature, we have a better understanding of the legal ways in which racial power is produced - how law structures the social, economic, andpolitical relationships between people of color on the one hand and white people on the other. However, critical race theory has not paid

much attention to intraracial or intraminority dynamics - especially the intraracial dynamics surrounding issues of sexuality. For discussions

about gender, see Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (1991);

Kimberle Williams Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine:

Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 [hereinafter Crenshaw, Demarginalizing]; and Isabelle R. Gunning,

Stories from Home: Tales from the Intersection of Race, Gender, and Sexual Orientation, 5 S. Cal. Rev. L. & Women's Stud. 143 (1995).

For discussions about class, see Marion Crain, Between Feminism and Unionism: Working Class Women, Sex Equality, and Labor Speech,

82 Geo. L.J. 1903, 1924-31 (1994); Eric Heinze, Gay and Poor, 38 How. L.J. 433 (1995); and Ruthann Robson, To Market, to Market:

Considering Class in the Context of Lesbian Legal Theories and Reforms, 5 S. Cal. Rev. L. & Women's Stud. 173 (1995). For discussions

about sexuality, see Peter Kwan, Jeffrey Dahmer and the Cosynthesis of Categories, 48 Hastings L.J. 1257 (1997); Jeffery C. Mingo, More

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Colors than the Rainbow: Gay Men of Color Speak About Their Identities and Legal Choices, 8 Law & Sexuality 561 (1998); and Francisco

Valdes, Sex and Race in Queer Legal Culture: Rumination on Identities & Inter-Connectivities, 5 S. Cal. Rev. L. & Women's Stud. 25

(1995).

n7. See Randall Kennedy, Race, Crime, and the Law (1997); Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of

Identification, 65 S. Cal. L. Rev. 1769 (1992) (discussing the politics of racial identification within, and questioning the notion of, the black

community); Dwight A. McBride, Can the Queen Speak? Racial Essentialism, Sexuality, and the Problem of Authority, in Black Men on

Race, Gender, and Sexuality: A Critical Reader 253 (Devon W. Carbado ed., 1999).

n8. The employment of the term "privileged victim status" may be problematic. For one thing, there is no privilege in being a victim.

Victim-based experiences are painful and subordinating. See Kwan, supra note 6, at 1257 (describing the painful story of a murder victim

whose pleas were ignored by the police); Ron Simmons, Baraka's Dilemma: To Be or Not to Be, in Black Men on Race, Gender, and

Sexuality: A Critical Reader, supra note 7, at 317 (describing the conflicting and emotional life of a closeted gay man). But minorities have

employed the rhetoric of victim status to give content to their experiences with discrimination. See Kathryn Abrams, Hearing the Call of

Stories, 79 Cal. L. Rev. 971, 981 (1991); Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. Chi. L. Rev. 361 (1996);

Jane B. Baron, Resistance to Stories, 67 S. Cal. L. Rev. 255, 267-69 (1994); Richard Delgado, Storytelling for Oppositionists and Ot

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