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1988 Wis. L. Rev. 187 (1988)
Homosexuality and the Social Meaning of Gender

handle is hein.journals/wlr1988 and id is 197 raw text is: ARTICLES HOMOSEXUALITY AND THE SOCIAL MEANING OF GENDER SYLVIA A. LAW* Why do our laws and culture condemn homosexuality? In this Article, Profes- sor Sylvia Law argues that disapprobation of homosexual behavior is a reaction to the violation of gender norms, rather than simple scorn for the sexual practices of gay men and lesbian women. Negative social and legal attitudes toward homosexuality, she suggests, can best be understood as preserving traditional concepts of masculinity and femininity, and those traditional concepts in turn sustain particular political, market and family structures. Law develops her thesis by examining the United States Supreme Court's decision in Bowers v. Hardwick and by reviewing the histories of anti-homosexual thought and resistance to discrimination. I. INTRODUCTION In 1986, the United States Supreme Court rejected a claim that constitutional norms of privacy and liberty bar the state from imposing criminal punishment on adult, consensual sexual conduct in the home.' This Article attempts to fathom the cultural values that animate con- demnation of homosexual behavior. My central thesis is that contem- porary legal and cultural contempt for lesbian women and gay men serves primarily to preserve and reinforce the social meaning attached to gender. Section II of this Article demonstrates that the law and culture condemn specific sexual actions by homosexual people more harshly than similar actions by heterosexual people, and suggests that the dis- approbation of homosexual behavior is a reaction to the violation of gender norms, rather than simply scorn for the violation of norms of sexual behavior. Section III reviews the moral and scientific concepts historically offered to justify Western civilization's censure of homosex- * Professor of Law, New York University Law School; B.A. 1964, Antioch College; J.D. 1968, New York University. Work on this Article was supported by the New York University School of Law Filomen D'Agostino and Max E. Greenberg Faculty Research Fund. I am grateful to many people who shared ideas with me and criticized earlier drafts. They include: Janet Benshoof, Barry Ensminger, Maia Ettinger, Nan Hunter, Patricia Rinaldi-Johnston, Molly McNulty, Martha Neary, David Richards, Elizabeth Schneider, Tanya and Ellen Sparer, Kathleen Sullivan and the Metropolitan Women's Law Teachers group. I am particularly grateful to Cary LaCheen, who worked with me from beginning to end, provided tireless research support, and pressed me to clarify my ideas and expression. I. Bowers v. Hardwick, 106 S. Ct. 2841 (1986).

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