History Unbecoming, Becoming History

Authors

Toni M. Massaro, University of Arizona, James E. Rogers College of LawFollow

Abstract

The last few decades have seen a torrent of legal commentary supporting gay equality and attacking the punishment, failure to protect, and refusal to affirm gay conduct and identity. William Eskridge, a prominent voice in this fin-de-siecle literature, now draws together and expands on his previous work in Gaylaw: Challenging the Apartheid of the Closet. Though far more successful in shaping the uses of the past than in showing the way to the future, the book instructs even where it fails. It augurs a century that could well witness the end of official discrimination against gay individuals, and the relegation of "gaylaw" to American legal history. Eskridge builds his chapters around three discrete definitions of gay law: • "Gaylaw is the ongoing history of state rules relating to gender and sexual non-conformity" (p. 1). • "Gaylaw is, also, reconceiving law from a more gay-friendly or gayneutral perspective" (p. 2; emphasis added). • "Gaylaw is, finally, derived from insights of the gay experience in America and its theoretical sibling 'queer theory'" (p. 2; emphasis added). Under the first two definitions, he offers an excellent synthesis of the historical backdrop to modern laws and a cogent analysis of legal doctrine that addresses antigay policies. He makes a convincing case against these policies as well, given their frequently unpredictable, untoward consequences. Leaving behind the historical and pragmatic arguments, however, Eskridge plunges into a theoretical thicket in forging his third definition of gaylaw. He makes internally contradictory appeals to liberalism and to various postliberal models that undermine his doctrinal arguments, many of which depend heavily on liberal premises.

Recommended Citation

Toni M. Massaro, History Unbecoming, Becoming History, 98 Mich. L. Rev. 1564 (2019).
Available at: https://repository.law.umich.edu/mlr/vol98/iss6/11