GAY AMERICAN “DEVIANCE”: Using International Comparative Analysis to Argue for a Free Speech and Establishment Clause Approach to Furthering Gay Marriage in the United States.

Bijal Shah, Yale Law School

Gay American “Deviance:” Using International Comparative Analysis to Argue For A Free Speech And Establishment Clause Approach To Furthering Gay Marriage In The United States, 26 Wis. Int'l L.J. 1 (2008) - it was published in Volume 26 of the Wisconsin International Law Journal in Spring 2008.


Thus far, Fourteenth Amendment antisubordination frameworks have been heavily explored by gay rights activists. However, while sexual minorities in many post-colonial nations are living as second-class citizens who cannot vote and do not have access to education, the LGBT (lesbian, gay bisexual, and transgender) community in the United States have never been denied these rights. On the other, many non-Western countries have a long-standing, culturally-established tradition of same-sex marriage, which many gay people are seeking to establish in the United States. However, internationally, this institution exists to counterbalance economic and gender antisubordination, and not as an expression of the personal identity and love American gays wish to convey through legalized marriage.

In this paper, I espouse a First Amendment approach to gay marriage rights by contrasting queers in America to sexual minorities abroad who are better suited for traditional antisubordination protection, as well as to sexual minorities abroad who have less of a need for expressive freedoms and for protection from state-supported conversion or eradication. In addition, I will construct comparisons between queers and religious minorities, both of whom are considered deviant in the United States. I will thereby utilize various contrasts and analogies to highlight the important categorization of queer people in the United States as deviant in the eyes of the moral majority, and to therefore argue for a narrowly-focused First Amendment-based Freedom of Expression and Establishment Clause approach for procuring gay marriage in the United States.

Just as many feminists with a more international focus have repeatedly censured First World feminists for denying the otherness of non-Western women and judging them according to the ‘high feminist norm’ of Europe/Euro-America, the Western ‘gay rights’ movement and American understanding of gay identity does the same in regards to non-Western and post-colonial queer communities. Sexual identity is not universally understood as solely located in the individual in the same fashion as lesbian and gay identity in middle-class Western societies.

Further, sexual minorities in the United States embody an ‘unnatural’ category that many believe can and should be changed, and not merely pitied, let alone protected. There is an element of mutability believed of queers in the United States that is not believed of sexual minorities by other cultures. American sexual minorities are considered by their compatriots to be inherently wrongful, deviant, immoral actors that are not necessarily of low socio-economic status or second-class citizenship. On the other hand, American queer communities are not subordinated, poor and politically disenfranchised, relatively speaking, when compared to many other Americans including women, racial minorities and those living in rural areas.

In contrast, while sexual minority status in the United States has been and continues to be seen as an avoidable sin chosen by immoral people or, at best, a treatable medical malady, abroad it is often a normal, ‘natural,’ unchangeable quality of some lower classes of people. Internationally, gay often means poor, of a different ‘caste’ (which is seen as immutable in the same way race is in the United States) and of an experience related to long-standing subordinated status. This contrast highlights the extent to which antisubordination protections, even were they procured, would not fulfill American gay peoples’ true needs.

For this reason, a gay rights framework should identify that queer individuals and communities in the United States have been cast in the role of a deviant ‘other’ in opposition to a national moral majority, and should therefore pursue expressive freedoms and freedom from state-sponsored majoritarianism, similar to that which is available to religious minorities. Such strategies can be used to broaden the current understanding of gays among other minority groups, to further number of legal claims for the protection of queer status and conduct in places such as on the job and in the military, and to procure gay marriage.

In Part I of this article, I present an overview of how Fourteenth Amendment anti-subordination protections have been difficult to employ for the purposes of gay rights. Using Loving v. Virginia and cross-cultural comparison, I further explain why they are inadequate for the purposes of establishing legal gay marriage in the United States. In Part II, I establish two strains of queer rights movements in post-colonial countries such as India and Brazil. The first is a post-colonial, Western-influenced ‘gay rights’ movement that mirrors the revolution occurring in most of the West. The second strain involves an anti-subordination movement sponsored by long-standing queer subcultures that have no counterpart in the United States. In fact, the latter queer movement is fighting for rights such as the right to vote, legal employment, and access to public education, in close analogy to the Black American civil rights movement. However, it is quite disparate from the face of queer culture and gay people’s position in society in the United States. In Part III, I develop the idea that American queers are in need of Freedom of Expression and Establishment Clause protection in regards, especially, to the right to marry. I accomplish this by highlighting queer relationships and marriages abroad that do not necessarily encompass expressions of ‘love’ as understood in the West, and that are not labeled as deviant and in danger of suppression by their compatriots. I will then draw analogies between queers and religious minorities in the United States, both of whom require protection from suppression by a national moral majority’s assessment of them as deviant. I also discuss, briefly, how expressive and anti-establishment techniques for procuring gay marriage will preserve intragroup variance in the queer community by allowing some gays to marry without requiring others to conform to a caricature of ‘good queer’. In Part IV, I discuss the potential drawbacks and conflict inherent in suppressing the expression, identity and growth of queer individuals, relationships and communities in the United States. Finally, I also explore the ways in which refocusing LGBT advocacy and retreating from the effort to gain Fourteenth Amendment suspect class status for homosexuals will legitimize the American gay rights movement both on its own terms as well as in the eyes of advocates of traditional civil rights.

While a number of authors have written about a First Amendment approach to gay rights furtherance in the United States, I have found no article besides my own that highlights the unique structure of American LGBT legal rights and social norms as compared to those in non-Western countries as evidence in favor of the First Amendment approach to gay rights furtherance. Only one other scholar – Sonia Katyal –has done comparative analysis in the field of LGBT rights. However, her work argues for a more global focus in American LGBT law, while I am arguing for a more narrowly-tailored purview by emphasizing that the reason for discrimination in the United States against the LGBT community is not due to traditional suspect class status, but to a national characterization of gay people as “deviant.” My approach thereby serves to better isolate the true legal needs of the American gay community.