Horowitz on "Homosexuality's Legal Revolution"

Although it is clear from the tone of his article that he is not sympathetic to homosexuality, Carl Horowitz does not argue that homosexuality is wrong. In fact, he maintains that private consensual sex acts between homosexual adults should not be illegal. But he sees a very large difference between that conclusion and the further conclusion that there is any merit to the more general idea of gay civil rights.

Horowitz provides the following summary of the aims of the gay rights movement as he understands them:

The movement now stands on the verge of fully realizing its use of law to create a separate homosexual society paralleling that of the larger society in every way., and to intimidate heterosexuals uncomfortable about coming into contact with it.
Thus, as Horowitz sees it, the aim of gay rights activists is two-fold. The first aim is to secure legislation that protects homosexuals from discrimination in jobs, housing and other areas of life and thereby, he later suggests, to institute another form of affirmative action. The second aim is to protect gays from having to endure the distaste or displeasure of non-gays who are uncomfortable in the face of overt homosexuality. Horowitz believes that the special protections that gays are asking for are inappropriate and that it is unreasonable to expect non-gay people to pretend that they approve of things that make them deeply uncomfortable.

One of the difficulties in assessing this article is that it blends together a number of separate issues. The gay rights movement is not monolithic; not all advocates of gay rights are willing to be associated with the tactics and positions of the more radical groups such as Queer Nation and Act Up; not all gay people approve of the practice of "outing" (that is, revealing someone's homosexuality without their consent) that characterized such magazines as Outweek. And not all gay people want a "separate homosexual society." However, many of Horowitz's complaints are directed against issues that are important to a broad cross section of the gay population.

Horowitz begins by offering a number of examples of legal and social victories by gay activists (e.g., municipal anti-discrimination ordinances, domestic partner benefits, successful demonstrations and protests.) He cites 1990 as a "pivotal year" in which gay activists were particularly successful in obtaining endorsements from mainstream politicians and in winning various victories at the ballot box. The rhetoric of some gay rights activists is in terms of integration. However, says Horowitz,

after

Is this true, either of the Black civil rights movement or the gay rights movement? Horowitz offers no evidence in the case of Black civil rights. In the case of gay rights, his primary evidence is a set of anecdotes illustrating what arguably are excesses of the gay rights movement or cases in which the remedy that a gay person sought or received in compensation for some sort of discrimination seemed inappropriate. The claim that gays seek a separate society, however, is probably not the core of Horowitz's argument. A much larger concern for him is the sort of reverse discrimination that he sees anti-discrimination laws as embodying. He writes:

Heterosexuals would have no right to discriminate against homosexuals, but apparently not vice-versa.
The idea is this: if these various laws are put in place, then the cards will end up stacked in favor of gays.

At this point we need to look at some of his examples in more detail. Horowitz describes a case from Wisconsin in which a group of three women had rented an apartment together. One of the women announced to the others that she was a lesbian; they asked her to leave. She sued and won. Her roommates had to pay her damages, had to send her a letter of apology and had to have their living arrangements monitored for three years.

Horowitz believes that this outcome was wrong. He believes that the women were well within their rights to ask their lesbian roommate to move out. More important for present purposes, he believes that this example illustrates what is wrong with the sorts of laws that gay rights activists want to have passed.

Is this a reasonable inference? The particular case we have just described is short on detail. If it is as simple as Horowitz makes it out to be, it is arguably wrong because it is arguable that when it comes to private associations among individuals, the government should step in only in the most egregious cases. Suppose, for example, that I want to rent a room in my house -- the house I live in. The thought that the government might be able to monitor my reasons for refusing to share my house with someone -- even if those reasons are based in nothing more than prejudice -- is an unsettling one. However, the Wisconsin case seems unusual just for that reason. Laws against discrimination in housing normally do not apply to the case of my choice of a roommate or housemate.

But what of the cases in which they do apply? Horowitz offers an imaginary but entirely plausible example. A rental agent is approached by a potential tenant who is openly homosexual. The agent makes excuses and does not simply offer the apartment to this person. An hour later, with great relief, he offers it to someone who may or may not be homosexual, but in any case gives no indication of his sexual orientation in any way, by word or behavior.

Horowitz maintains that this would be regarded as improper discrimination by gay rights activists, but he insists that there is a difference between this case and cases of racial discrimination. The difference is that unlike race, homosexuality is a behavioral trait, and therefore not something over which the individual has no control.

At this point, the argument elides into a different issue. Horowitz writes:

It is within the moral right of a landlord, job interviewer, banker, or anyone else performing a "gatekeeper" function to discourage economically risky behavior, social or otherwise.
Horowitz goes on to argue in detail that there are economic costs to the sorts of laws that gay rights groups want passed. Of course, if discrimination against homosexuals were simply wrong -- in he way that most of us think that racial discrimination is wrong -- any such costs would simply be the costs of doing the right thing. But as we have just seen, Horowitz believes that there is a fundamental difference between racial discrimination and discrimination based on sexual orientation.

Horowitz illustrates the economic difficulties, as he sees them, in the rental case. If the agent feels compelled to rent to the homosexual applicant, the new tenant may spread the word that this building is gay-friendly. Past a certain "tipping-point," heterosexual tenants would likely leave and the building would be come a "gays-only" building in fact if not in law. This, as Horowitz sees it, is how predominantly gay neighborhoods such as Dupont Circle or the Castro came into being.

Still, it may not be obvious what the costs are. Suppose the building becomes a gay-only building. Will the landlord make less money? The answer is hardly a clear yes. There is no reason to believe that gays are an economic underclass. Indeed, for all Horowitz has said, the landlord might be able to make more money if he catered to the gay population. If economic harm or risk is the issue in this example, Horowitz has not made his point.

There is another curious feature of this and other examples that Horowitz offers. It is indeed true that a certain building or neighborhood might become predominantly gay. This sort of thing happens all the time with racial groups, ethnic groups and even groups of people whose main similarities are economic. There are Black neighborhoods, White neighborhoods, Hispanic neighborhoods, middle-class neighborhoods, Orthodox Jewish neighborhoods, and the list goes on. Whatever we may think of this sort of segregation, it is a fact of life and is likely to remain so. It is hard to see how adding gay neighborhoods to the mix is likely to make a great deal of difference, since homosexuals are not an especially large minority; they form about 4% of the population by most recent estimates. This is what makes some of the items on Horowitz list of damaging consequences of gay rights laws seem peculiar. Horowitz tells us that "wherever such laws exist, they will attract homosexuals to the jurisdictions enacting them." This is no doubt true. Most people choose to live in places where they feel that they are welcome. But if a community votes to pass such laws, then it would seem that a majority of those voting do welcome gay people. Furthermore, if more and more communities pass such laws, the effect will be to spread the effects widely. To take the extreme case, if every community had such laws, then there would be no reason other than the intrinsic attractiveness of a community for gays to prefer living in one place rather than another. There is no chance that all or even most communities will become predominantly gay; there simply aren't enough gay people for that to happen. So the harm isn't quite as obvious as Horowitz suggests. In fact, his next comment is curious. He writes:

Common sense dictates that any community laying out the welcome mat for homosexuality lays it for homosexuals, implicitly telling others to step aside.
That such laws welcome homosexuals seems unarguable. That they implicitly tell others to step aside seems far from clear. Most communities that have passed such laws are, one assumes, majority homosexual. So it seems at least equally possible that some notion of tolerance lies behind such legislation, or at least motivates many people to favor it. Perhaps large numbers of non-gays in those communities are not especially bothered at the thought of having gay neighbors or co-workers.

Horowitz goes on to argue that as gays learn the power of the gatekeeper, many will become gatekeepers themselves. The result is reflected in universities, for example, where there are increasing numbers of openly-gay faculty and administrators. This, Horowitz tells us, is an important part of the reason for the hair-trigger responses to anti-gay behavior on some campuses. Furthermore, Horowitz would probably argue that it is naive to believe that policies favoring gays always reflect the will of the majority. At least in settings where it is not the direct vote of the electorate that decides (a university, for example, where administrators are appointed rather than elected), all that is necessary is that a few people in positions of power become persuaded to support the gay agenda. In that case, there is no reason to think that compliance is voluntary on the part of most people.

Furthermore, Horowitz argues that gay-rights legislation will create "economic bottlenecks," putting non-gays at a disadvantage in competition for jobs and accommodation. There is an obvious response: since gays are only a small percentage of the population, the degree of disadvantage that this will create is small. However, Horowitz would probably reply that even if it is small, it is unjust, especially since discrimination against behavior is not the same as discrimination against a trait such as skin color.

Of course, all the effects that Horowitz sees flowing from anti-discrimination laws apply to anti-discrimination laws based on race as well as on sexual orientation. Horowitz might concede that in the case of race, this is the price of doing the right thing. But his argument is a bit delicate. What he maintains is that anti-discrimination laws actually create affirmative action:

...without necessarily mentioning anything about quotas or, for that matter, homosexuality, law in the United States is increasingly mandating homosexual affirmative action
This is a result of the intimidating effect that anti-discrimination laws have:

By codifying into law "protection" of homosexual mannerisms, [gay activists] can intimidate gatekeepers into providing job security and housing for the openly homosexual.
Once again, we note, this sort of argument would apply equally to laws intended to protect people from discrimination on the basis of race. But once again, it would be open to Horowitz to claim that anti-discrimination laws have a different moral basis in the case of race.

The most chilling consequence that Horowitz predicts if gay rights initiatives continue to succeed is an increase in physical violence against gay people. He suggests by way of anecdotal evidence that this may already be happening, but he provides no hard evidence. Once again, the same comment might be made about racial violence, of course, and so the time seems ripe to inquire into the basis of the distinction. We have already noted that on Horowitz view, homosexuality is a behavioral as opposed to a genetic trait. And it is certainly true that actually having sex is a matter of behavior and not genes. Furthermore, Horowitz quotes libertarian Doug Bandow, who notes that "...many Americans still believe that there is a fundamental, unchangeable moral code by which men are to live." And so the inference would seem to be that because there can be legitimate moral objections to homosexual conduct, it is inappropriate to forbid people to discriminate against homosexuals.

This argument also figures in Justice Scalia's dissent in the Supreme Court case Romer v. Evans in which the Colorado law forbidding municipalities from passing gay rights statutes was overturned.

Let us concede for the sake of the argument that there are legitimate moral concerns about homosexual conduct. (If you think otherwise, nothing in what follows will be affected.) It would be hard to hold that homosexuality is especially suspect compared to other forms of sexual misdemeanor such as adultery or pre-marital sex or even masturbation. But people who commit those sexual offenses are not singled out for economic and other forms of discrimination. Their sexual conduct (so long as it doe snot involve violence or harassment) does not limit their access to housing or employment. Thus, there is at the very least a question of fairness to be addressed. In fact, however, Horowitz's own treatment of the case makes clear that sexual conduct per se is not really the issue for him. Horowitz quotes Jonathan Alter, who writes that:

"Acting gay" often involves more than sexual behavior itself. Much of the dislike for homosexuals centers not on what they are or what they do in private, but on so-called affectations -- "swishiness" in men, the "butch" look for women -- not directly related to the more private sex act.
Indeed, Horowitz points out that most people have never witnessed a homosexual act even by accident. But Alter points out: even if straights argue that gays could downplay the characteristics that make straights uncomfortable, this is beside the point for many gays, since they see their behavior and mannerisms as part of their identities. Horowitz writes:

Yet if gays, through their carefully practiced "gay" mannerisms, know fully well that they are antagonizing many heterosexuals, then why do they display them? Is it not in part to make homosexuals sweat?
This, as Horowitz sees it, is part of the source of anti-gay violence, especially when it is coupled with laws that enforce tolerance of behavior that many people find intolerable. Two questions come up. First, are these behaviors simply carefully practiced mannerisms. And second, why are they so disturbing to some non-gays?

Although it is hard to say with any confidence, it seems likely that the answer to the first question is no. Although there is no doubt some element of affectation in some cases, certain behavioral characteristics, including speech mannerisms and ways of moving ones body seem to have a sort of hard-wired element to them. My daughter, for example, has a very characteristic way of walking: very purposeful and "grounded," with weight firmly on her heels. But there is nothing practiced or affected about it; it's just the way she walks. (She is, at seven, not likely to have spent time acquiring any such affectation.) And while this example hardly proves the point, it illustrates what seems an obvious fact about people: many of their mannerisms seem to have a built-in quality to them. In fact, some of this seems to be borne out in studies of identical twins raised apart from one another. And to the extent that this applies to so-called "gay" mannerisms, it is not surprising that an attack on mannerisms should seem like an attack on oneself. Interestingly enough, however, the other side of the coin -- straights' reactions to gay mannerisms -- may have much to do with identity issues as well. Horowitz writes:

...public homosexuality strikes both at a heterosexual's fear of loss of sexual identity and sense of belonging to a family. For even in this age of artificial insemination, families are not sustainable without heterosexuality. No matter how much the homosexual activist naively protests, "Gays are people too," such a plea will receive in return grudging respect, and little else.
There seems to be something to this. Although, once again, I don't have hard evidence, I have a sense that issues of sexual identity are an important part of why many heterosexuals have such a strong reaction against gays. Perhaps it is something like this. Take the case of the stereotypically gay man. Many of his characteristics and mannerisms are feminine - that is to say, are normally associated with women. But the centers of the brain that govern sexual reaction are in many ways rather primitive. Perhaps these men activate some of the parts of the brain that govern sexual attraction. At the same time, however, other parts of the brain are responding to the information that this person is, indeed, a man. The experience is no doubt confusing and even threatening for some people.

Issues about the family also seem to motivate many people's dislike of gays. in fact, it is very hard to see how gays could ever be a serious threat to the family. It is unlikely that homosexuals will ever constitute more than a small fraction of the population. Nonetheless, the family is a central and, in many people's minds, sacred institution. Perceived threats to the family are disturbing for many people. But it seems unlikely to me that this is the more basic issue. after all, adulterers are an even greater threat to the family. But while most people don't approve of adultery, it does not provoke the visceral reaction that homosexuality does.

Horowitz objects to the constant labelling of people who disapprove of homosexuality as homophobic. Without doubt, the label is overused, But the fact that homosexual conduct, among so many forms of arguably illicit sex, is singled out for special opprobrium must give one pause. Even if gay sex is wrong, the reaction to it is hard to explain except on the theory that some special psychological process is at work. And in fact, if Horowitz is right in his analysis of people's reactions to the mannerisms of gay people, then the term homophobia seems exactly right: Horowitz puts the issue in terms of fear. Not direct fear of homosexuals as such, but perceiving them as a threat eitehr to one's own identity or to the family. And the reaction, he is pointing out, is a visceral one rather than a merely intellectual one.

Where does this leave the public policy question? It seems hard to justify singling out this particular sin for special treatment when so many similar sins are left to one side in decisions about hiring, firing, housing, etc. It also is unclear how effective legislation will be if the underlying issue is fear. But it is equally unclear whether public policy that is based on fear can be acceptable or wise.

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