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A Social Constructionist Critique of Posner's Sex and Reason: Steps Toward a Gaylegal Agenda, 102 Yale L.J. 333 (1992)


Although it does not locate itself in this relatively new tradition, Sex and Reason is filled with information, theories, and discourse about homosexuality. Homosexuality is an important part of the book's descriptive and normative account of sexuality and its legal regulation. Because Posner is a celebrated mainstream legal academic and judge (a Reagan appointee to the Seventh Circuit in 1982), his generally sympathetic attention to these themes promises to render them more prominent in American legal discourse. And because Posner invokes libertarian philosophy to criticize morality-based (over)regulation of sexuality, many of his arguments ought to be of welcome interest to members of bisexual, gay, and lesbian communities. Part I of this essay will summarize the part of Sex and Reason that deals with homosexuality and related policy issues. The book's major contribution to the gaylegal agenda is to wash the modem regulation of homosexuality in the "acid bath" of economic analysis and thereby to expose the emptiness of antihomosexual regulations.

Part II argues that the bath is only mildly acidic, however. The stated regulatory baselines in Sex and Reason are utilitarian, libertarian, and antimoralist. If pursued with characteristic Posnerian relentlessness, these premises could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness. This results in part from Posner's commitment, revealed in other recent work, to a fourth regulatory principle, pragmatism, which dictates that legal reform be incremental and bounded by extant community attitudes. In our society, community attitudes continue to be antihomosexual.

Posner's analysis also suffers from the shortcomings of his underlying premises: that sexuality can be viewed as a morally indifferent object of inquiry and regulation; that cost-benefit analysis can provide determinate guidance in making policy choices; and that libertarianism, grounded as it is on the distinction between public and private, is a meaningful way to discuss matters of sexuality. In questioning these premises, I rely on social constructionist theory developed preeminently by (gay) philosopher Michel Foucault, whom Posner frequently cites and praises. Unfortunately, because Posner applies Foucault's work in light of his own commitment to a Holmesian-style pragmatism, he does not pursue its critical implications. Part III of this essay begins with the premise that sexuality is socially constructed, and argues that the problems with Posner's book identified in Part II stem from deeper contradictions, not just in Posner's thought and its premises, but in traditional liberal pragmatic approaches to the reformation of laws that touch on sexuality. In addition to offering a more radical critique of existing regulation of homosexuality, as well as positive suggestions for a gaylegal agenda, social constructionism also engenders a deeper appreciation of Posner's Sex and Reason, whose pragmatist insights offer suggestions for gaylegal activism in the 1990's.

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