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Homosexuality As Contagion: from the Well of Loneliness to the Boy Scouts

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Homosexuality As Contagion: from the Well of Loneliness to the Boy Scouts PRINTKNAUER.PPR 04/09/01 2:55 PM HOMOSEXUALITY AS CONTAGION: FROM THE WELL OF LONELINESS TO THE BOY SCOUTS Nancy J. Knauer* I. INTRODUCTION ...................................................................... 403 II. THE WELL OF LONELINESS AND THE MEDICO-SCIENTIFIC MODEL OF HOMOSEXUALITY ................................................. 410 A. The Early Sexologists..................................................... 413 1. Krafft-Ebing and Ellis .............................................. 414 2. Liberatory Value of the New Science........................ 417 3. Foucault and “Reverse Discourse”............................ 418 B. The Well of Loneliness .................................................. 422 1. Constructing the Life of an Invert ............................. 424 2. The Argument on Behalf of Inverts........................... 425 III. THE COUNTER-NARRATIVE OF HOMOSEXUALITY AS CONTAGION ..................................................................... 430 A. The Six Enduring Maxims of the Contagion Model of Homosexuality ............................................................... 434 1. Homosexuality Is a Vice........................................... 435 2. Homosexuals Prey on Innocent Victims.................... 435 3. Homosexuals Have No Shame.................................. 436 4. Homosexuals Demand Recognition, Not Mere Toleration................................................................. 436 5. It Is a Battle Between Good and Evil........................ 437 6. Society Must Silence Homosexuality ....................... 437 B. The Decision to Prosecute.............................................. 438 IV. THE OBSCENITY CHARGES ..................................................... 440 A. The Hicklin Rule ............................................................ 442 * Professor of Law, The James E. Beasley School of Law, Temple University. I would like to thank Caroline J. Lindberg and Francine Tischner for their insightful comments on earlier drafts. In addition, I would like to thank Melynda Rowland for her research assistance. 401 PRINTKNAUER.PPR 04/09/01 2:55 PM 402 HOFSTRA LAW REVIEW [Vol. 29:401 B. The London Trials.......................................................... 445 C. The New York Trials ...................................................... 446 1. Homosexuality Is a Vice........................................... 447 2. Homosexuals Prey on Innocent Victims, and It Is Not Just the Children ................................................ 448 3. The Well Extols Homosexuality................................ 448 4. The Well Demands More than Mere Toleration......... 449 5. It Is a Battle.............................................................. 449 6. The Well Is Obscene ................................................. 449 D. The New York Appeal and Epilogue ............................... 450 E. A Final Note About the Necessarily Partial Nature of Censorship..................................................................... 450 V. THE CONTAGION MODEL OF HOMOSEXUALITY IN CONTEMPORARY SOCIETY .................................................... 454 A. Pro-Family Organizations ............................................. 456 B. Homosexuality Is an Immoral, Unhealthy, and Freely Chosen Activity.............................................................. 458 1. We Know You Can Change...................................... 459 2. The Status/Acts Divide, Sodomy Laws, and Suspect Classification............................................................ 464 C. Homosexuals Prey on Innocent Victims.......................... 468 1. The Adult Victim...................................................... 469 2. The “Trophy Children”............................................. 470 3. But, It Is Not Just Their Own Kids............................ 471 a. Curriculum Issues ............................................... 473 b. Gay Student Groups............................................ 475 c. The Gay Teacher................................................. 478 4. The Pedophile and the Gay Scout Master.................. 480 D. Homosexuals Flaunt Their Lifestyle, Infringing on the Rights of Others ............................................................. 482 E. Homosexuals Demand “Special Rights,” Not Mere Toleration...................................................................... 489 F. It Is a Culture War......................................................... 493 G. Society Must Silence Homosexuality............................... 495 VI. CONCLUSION.......................................................................... 498 PRINTKNAUER.PPR 04/09/01 2:55 PM 2000] HOMOSEXUALITY AS CONTAGION 403 I. INTRODUCTION In 1998, a consortium of pro-family organizations ran a series of full page advertisements featuring testimony by self-described “ex-gays” designed to expose the truth about homosexuality: “nurture, not nature, is the real cause of homosexual behavior.”1 In addition to offering hope to those currently struggling with homosexuality, the advertisements had a clearly articulated political goal—to undercut the construction of sexual orientation as a valid category for civil rights protection.2 They also illustrate that the controversy over gay rights is, at base, a struggle over the definition and the meaning of homosexuality—over the very nature of same-sex desire. In the political arena, there are currently two central and competing views of homosexuality. Pro-family organizations, working from a contagion model of homosexuality, contend that homosexuality is an immoral, unhealthy, and freely chosen vice.3 Many pro-gay organizations espouse an identity model of homosexuality under which sexual orientation is an immutable, unchosen, and benign characteristic.4 Both pro-family and pro-gay organizations believe that to define homosexuality is to control its legal and political status.5 1. CitizenLink, In Defense of Free Speech, at http://www.family.org/cforum/research/papers/a0002800.html (last modified Sept. 15, 1998) (advertisement). For a description of the advertising campaign, see Laurie Goodstein, The Architect of the ‘Gay Conversion’ Campaign, N.Y. TIMES, Aug. 13, 1998, at A10; Frank Rich, Lott’s Lesbian Ally, N.Y. TIMES, July 22, 1998, at A19. 2. For example, the advertisement entitled In Defense of Free Speech lists several essential truths about homosexuality that appear to be designed to counter claims that sexual orientation qualifies as a suspect classification for purposes of constitutional protections because sexual orientation is an immutable trait and homosexuals are a disadvantaged minority. See CitizenLink, In Defense of Free Speech, at http://www.family.org/cforum/research/papers/a0002800.html (last modified Sept. 15, 1998) (advertisement). These claims are as follows: i) homosexuality is not genetic; ii) homosexuals can change; iii) homosexual activists have promoted homosexuality under pretexts, iv) homosexuals possess “raw political power”; and v) homosexuality is a sin. See id. For a discussion of the requirements for suspect classification, see infra note 351 and accompanying text. 3. See infra Part III (discussing the contagion model of homosexuality). 4. See infra Part II (depicting the identity model of homosexuality). 5. This Article uses the term “pro-family” to describe conservative political organizations with anti-gay policies. Instead of referring to the groups as “anti-gay,” it uses the term that the groups use to describe themselves. It therefore tries to avoid the anti-choice/pro-life rhetoric over- characterization that can intrude when writing about politically-charged issues. This Article also does not use quotation marks around terms such as “pro-family” or “ex-gay” to indicate the Author’s skepticism regarding the appropriateness or accuracy of the terms. Pro-family literature consistently puts the word gay in quotation marks. Recent court decisions dealing with sexual orientation have also placed words used by the litigants to describe themselves or their relationships in quotation marks. See, e.g., Shahar v. Bowers, 114 F.3d 1097, 1099, 1100-01, 1103, 1105-07 (11th Cir. 1997) (using quotation marks around “marriage” or “married” when referring to Shahar’s PRINTKNAUER.PPR 04/09/01 2:55 PM 404 HOFSTRA LAW REVIEW [Vol. 29:401 This sometimes bitter debate regarding the nature of same-sex desire might seem like an exceedingly contemporary development.6 However, the ex-gay media blitz represents only the latest skirmish in a long-standing battle for ontological hegemony. Over seventy years ago, an opening salvo was launched in the 1928 obscenity trials of Radclyffe Hall’s novel, entitled The Well of Loneliness (“The Well”).7 The novel detailed the life and loves of Stephen Gordon, a female invert, for whom same-sex desire was depicted as an innate, God-given, and potentially noble characteristic.8 Building on the congenital inversion theories of the early sexologists, Richard von Krafft-Ebing and Havelock Ellis, Hall constructed the first popular articulation of a positive lesbian identity and argued, without apology, for the invert’s “right to love.”9 Thus, in The Well, female inverts are not only subjects—they are juridical subjects. Hall uses a clearly articulated rights discourse throughout the book as her characters assert their “right to love” and long for the right to “protect”—i.e., marry their partners.10 Upon publication, The Well encountered a hostile counter-narrative of homosexuality as contagion, resulting
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