The Fearful Passage of Their Death-mark’d Love:
Analyzing American Legislative Trends of LGBT Oppression
Abstract
2
This article focuses on the early 2014 wave of proposed anti-LGBT legislation in state
assemblies of the United States, spurred by the recent shift of pro- and anti-LGBT discourses.
The farce of anti-LGBT discursive reiteration is examined through political appeals to
conservative ideologies, in order to break down some of the key tactics of persuasion. These
include the role of the Bible in American politics, the HIV/AIDS pandemic as an ideological
weapon, and the notion of the nuclear, heteronormative family as ideal.
The increasing federal support of LGBT rights has shifted opposition to focus on statelevel legislation. Particular focus is given to Arizona’s Senate Bill (SB) 1062, which sought to
institutionalize LGBT hatred based on religious grounds, giving anyone the power to
discriminate against minority groups. Anti-LGBT tactics are explored through Gayle S. Rubin’s
research on “sex panics,” as well as Eve Kosofsky Sedgwick’s analysis of “the closet” as the
defining apparatus of LGBT oppression and its historical use in the U.S. judiciary. The reasoning
for the governor’s veto of SB 1062 is explored, demonstrating the persistent threat to equality in
state legislation in Arizona and other states.
Introduction
Just like queer theory itself, legal discourses and the legislation that arises out of them are
constantly evolving. In this essay, I will argue that opposing discourses surrounding LGBT legal
policies in the United States are in constant and enduring tension with one another, shattering the
myth that “it gets better.” Quite the contrary, LGBT opposition groups are feeling the pressure
from increased acceptance for the rights of sexual minorities, and in its wake, the rise of harsh,
discriminatory, and oppressive legislation is fighting its way through various state legislatures.
While recent years have yielded a favourable increase in pro-LGBT legislation, especially on a
3
federal level in the United States, individual states have taken up the torch abandoned by most of
their federal counterparts. Under the cloak of religious prerogative, these state senators and
representatives wield the flames of oppression against the rainbow aegis of humanity.
Surrounding various sexual and gender minorities exists two primary and opposing
discourses that shape every aspect of queer life: from the social, educational, and health aspects
to the judicial and legislative. These two discourses are engaged in a constant struggle for
domination – they are both a product of the ideologies of pro- and anti-LGBT activists,
lawmakers, and citizens caught up in the conflict – as well as the cause of such ideologies insofar
as discourse limits what can and cannot be said, thought, and written about queer life. Thus,
every aspect of human society contributes to shaping certain discourses, as much as these aspects
are directly influenced by the discourses they create. Just like gender, as Judith Butler might
argue, discourses are reiterative; they are constantly created and recreated through a plethora of
social structures, with no “original.” This essay will examine how legislative authority affects
these two primary and opposing discourses concerning attitudes towards LGBT rights, people,
and their families. By examining the recent history of moral panics, it will be apparent how
current legislation in several states (namely Arizona) is detracting from real issues of queer
oppression. The rhetoric of the anti-LGBT gang of politicians, who exhort religious freedom as
the victim, do so in order to blindside citizens and increase political support. It is time to
examine these two discourses side by side.
The pro-LGBT discourse in the United States as it exists today is a product of legal
ideologies extending back to the eighteenth century. The First Amendment to the Constitution,
which maintains the separation of church and state, is perhaps the cornerstone of this discourse.
Beyond the binds of religious dogma, secular forces have been able to accomplish much in the
4
way of civil rights for sexual minorities, but only in recent years as queer theory took center
stage. From 2001 to 2012, trends have shifted from a majority of Americans against LGBT rights
to a majority supportive of those rights. 1 This change of attitudes is indicative of an evolving
discourse concerning homosexuality, bisexuality, and non-binary genders. With every policy
change or repeal of some archaic and oppressive law, the pro-LGBT discourse gains more
influence over the same legal system that produced it. Discursive practices have altered the way
society views things such as the concept of marriage, from the traditional “one man and one
woman” viewpoint to a more progressive and LGBT inclusive definition: “two consenting
adults.” A better understanding of the lives and identities of people of sexual minorities, fostered
by an evolving discourse, is also changing the way society treats vulnerable LGBT youth. The
implementation of zero tolerance policies for bullying in schools, and the spread of youthoperated “Gay Straight Alliances” are all signifiers of this cultural and discursive shift. So much
has changed since Gayle Rubin wrote about the dangers of moral panics that, for the first time,
the sitting President of the United States has publicly endorsed the concept of same-sex
marriage, among other LGBT initiatives. 2 If one is bold enough to extrapolate the path of this
evolving discourse, its understanding of sexual orientation and gender identity, as well as its
concern for equality, it seems clear that the oppressors’ flames will be extinguished.
Unfortunately, the opposing discourse spawned by anti-LGBT ideologies over the past century is
not bowing out gracefully – it has become more nefarious than ever.
The discourse surrounding anti-LGBT ideologies, which was only surpassed in influence
by pro-LGBT discourse as recently as 2009, still remains a forceful opponent in the fight against
1
Lydia Saad. “U.S. Acceptance of Gay/Lesbian Relations Is the New Normal.” Gallup, Inc., 14 May 2012,
http://www.gallup.com/poll/154634/Acceptance-Gay-Lesbian-Relations-New-Normal.aspx.
2
Phil Gast. “Obama Announces He Supports Same-sex Marriage.” CNN, 9 May 2012,
http://www.cnn.com/2012/05/09/politics/obama-same-sex-marriage/.
5
oppression. 3 This discourse retains its influence over many Americans, chiefly those who
subscribe to the moral values taught by Christianity. Despite claims of religious ideology as
justification for its values, an examination of three key issues reveals this to be a farce. Carried
out in the guise of religion, virtue, and morality, proponents in the United States appeal to
fundamentalist Christian doctrine in order to manipulate the emotions of religious followers and
thus purloin their voting power.
The first key issue that reveals a deeper truth about this oppressive ideology concerns the
idea of Biblical sin. A linchpin of their stance against homosexuality, the Bible’s anti-gay
rhetoric (anti-gay as it makes no mention of lesbianism) is always the fallback justification for
legislation that aims to “protect” citizens from those who “choose” to live in sin. The result of
this discourse effectively paints queer people as hardened criminals. It is interesting that other
sins mentioned in the Bible go unnoticed to many of the same Christians. These include the sin
of wearing clothing made from a mix of two fabrics, such as spandex (Leviticus 19.19 King
James Version). Surely those who wear spandex clothing must answer for their heinous crimes,
yet this sin goes unnoticed. It is hard to reconcile the idea that a book which preaches slavery ad
nauseam (Colossians 3.22-25; Ephesians 6.5-6; 1 Timothy 6.1; Titus 2.9-10; 1 Peter 2.18; &c.),
yet condemns cross-dressing (Deuteronomy 22.5), could be any sort of moral compass without
some modern revision first. The very fact that slavery is no longer acceptable in the United
States, and certainly not being pursued by any Christian organizations, demonstrates that society
does in fact selectively read (and practice) the teachings of the Bible. Determining the exact
reasons why anti-gay “sins” are still considered legitimate, however, is at the center of ongoing
debate. It would appear that this selective inclusion of the “sin” of homosexuality is simply a
3
Lydia Saad. “U.S. Acceptance of Gay/Lesbian Relations Is the New Normal.” Gallup, Inc., 14 May 2012,
http://www.gallup.com/poll/154634/Acceptance-Gay-Lesbian-Relations-New-Normal.aspx.
6
modern day manifestation of the reiterative process of heterosexual normativity. This anti-LGBT
rhetoric is very much a part of the exclusionary legal matrix – oppressive forces that seek to
constrain non-heterosexual identities.
The second key issue allowing a deeper revelation into anti-LGBT discourse concerns the
realm of health. The AIDS pandemic is central to the abusive dogma of this fundamentalist
discourse, and its suggestion that HIV/AIDS is God’s punishment for acceptance of
homosexuality ignores some basic biology. Without trying to belittle the devastating spread of
HIV throughout the United States, it becomes easily apparent in retrospect how the disease was
able to become so widespread before preventative measures were established. The fact that HIV
remains asymptomatic for several years before signs of infection become apparent, combined
with the lack of prophylactic use by gay men 4 (at this time, the effectiveness of condom use in
the prevention of HIV transmission was not commonly known, and its prevention of pregnancy
was certainly not a concern) meant that the AIDS pandemic represents a convergence of
tragedies, hardly God’s punishment. The hypocrisy of this assumption is seen once more, for
heterosexuals are more at risk for contracting HIV than homosexual women. 5 Note that God, yet
again, seems to passively favour lesbianism.
The third key issue that points to hypocrisy within fundamentalist discourse centers on
the concept of the family as the most basic unit of civilization. Somehow, the idea that
forbidding same-sex marriage would help maintain family units became a central point of
contention. The nuclear family became idealized, while the thought of same-sex partners raising
children was deemed an affront to God. In reality, opposition to same-sex marriage is strikingly
4
Matt Comer, “In a Different Time: Gay life, love and sex in the 1970s,” qnotes, Feb. 1 2013,
http://goqnotes.com/20730/in-a-different-time.
5
“Lesbian and Bisexual Health Fact Sheet.” U.S. Department of Health and Human Services, 16 July 2012,
http://womenshealth.gov/publications/our-publications/fact-sheet/lesbian-bisexual-health.html.
7
anti-family. Even conservative David Cameron, the British Prime Minister, understands this
basic concept, “I don’t support gay marriage despite being a conservative. I support gay marriage
because I’m a conservative.” 6 It is irreconcilable that fundamentalists express their support for
families while maintaining distaste towards same-sex marriage; the two are not mutually
exclusive. These three key issues, Biblical sin, health, and the family, all work to reiterate the
false concerns of anti-LGBT discourse.
The clash of these two prominent discourses in the legislative arena, pro- and anti-LGBT,
reads almost like a Shakespearean tragedy: Two households, not alike in dignity…Where civil
blood makes civil hands unclean. This sentiment would seem eerily true to Gayle S. Rubin, who
examined the effects of moral panics in the 80s and 90s, a high point in time for anti-LGBT
discourses. Rubin focused on both the AIDS epidemic in the United States, as well as anti-sex
and anti-pornography movements within feminism. Her theories highlight how the motivations
behind moral panics are thinly veiled scapegoats that avoid or conflate true issues in order to
further a legislative cause. She notes that “sexuality in Western societies is so mystified, the wars
over it are often fought at oblique angles, aimed at phony targets, conducted with misplaced
passions, and are highly, intensely symbolic.” 7 Legislation pushed through various governing
bodies during the height of the AIDS crisis, as well as policy decisions on AIDS prevention and
awareness, demonstrates the aforementioned key point of hypocrisy in health. Out of the fear that
education on AIDS prevention would promote a discourse that legitimizes homosexuality, efforts
to promote the health of gay men were set aside in the interests of maintaining the oppressive
6
“David Cameron's Conservative Party Conference Speech in Full.” Guardian News and Media, 05 Oct. 2011,
http://www.theguardian.com/politics/2011/oct/05/david-cameron-conservative-party-speech. (Emphasis mine).
7
Gayle S. Rubin. “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,” in The Lesbian and Gay
Studies Reader, ed. Abelove, H. et al. (New York: Routledge, 1993), 25.
8
status quo. 8 The discursive practices of an anti-LGBT system have literally led to the deaths of
many citizens, heterosexual and homosexual alike, all in an effort to keep alternative sexualities
hidden from the public.
It should be no surprise that political parties, operating within the discourses of their time,
have resorted to scapegoats in order to further their own political agenda. The systematic
demonization and alienation of a group of people, provoked by the state, seems to be a recurring
obstacle throughout modern times. For instance, the United States’ “one-drop rule” in the early
1900s, the de facto set of laws and policies that deemed individuals with even the slightest
African ancestry as black, helped to maintain the unequal racial hierarchy long after the end of
the Civil War and the abolition of slavery. 9 The institutionalized racism of this time was a
perpetuation of racial scapegoating. Not long after, the Nazi Socialist Party began to employ
strict laws in 1933 that aimed to limit the civil and human rights of Jews. 10 The Nazis used the
Jews as scapegoats to gain political power, culminating in the worst genocide in human history.
In all of these tragedies, the powers that be have subjugated an innocent minority for a sinister,
ulterior motive. Entering the 80s and 90s, a minority made especially vulnerable due to the AIDS
crisis became the modern scapegoat of American right-wing politics. What was apparent then to
Rubin – how oppressive legislation “is rationalized by portraying [homosexuals] as menaces to
health and safety, women and children, national security, the family, or civilization itself,” 11 is
uncannily familiar to the tactics used in Nazi Germany against the Jews. Sadly, these tactics are
echoed today in several state legislatures in response to growing LGBT acceptance. In the latest
8
Gayle S. Rubin “Afterword,” in American Feminist Thought at Century’s End: A Reader, ed. Linda S. Kauffman
(MA: Blackwell, 1993), 62.
9
Wayde Compton. After Canaan: Essays on Race, Writing, and Region (N.p.: Arsenal Pulp, 2010), 20.
10
“Anti-Semitic Legislation, 1933–1939.” United States Holocaust Memorial Museum, 10 June 2013,
http://www.ushmm.org/wlc/en/article.php?ModuleId=10007459.
11
Gayle S. Rubin. “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,” in The Lesbian and Gay
Studies Reader, ed. Abelove, H. et al. (New York: Routledge, 1993), 25.
9
round of legislative disputes, a surge of state house and state senate bills aim to legalize
discrimination on religious grounds. The conservative governments of various states are
proposing to stomp on individual human rights in favour of expanding an oppressive regime.
The State of Arizona, currently held by a Republican majority in both house and senate,
has recently passed Senate Bill 1062, sending it to the governor’s desk seeking her signature. SB
1062 made international headlines, drawing out the wrath of the liberal media and the farce of
the fundamentalists. The bill proposes an amendment to an existing religious freedom statute,
extending the right to discriminate against anyone to “any individual, association, partnership,
corporation, church, religious assembly or institution, estate, trust, foundation or other legal
entity.” 12 Discrimination would be legal under this bill as long as it pertains to a sincerely held
religious belief. Furthermore, the state and individual citizens would be unable to pursue legal
action in response to any discrimination. The bill would allow private businesses to turn away
homosexual patrons, allow doctors to abandon their queer patients, and might even allow
firefighters to refuse to battle a blazing fire if the homeowner’s lifestyle clashes with their
religious beliefs. SB 1062 would effectively make life impossible for queer Arizonans, who
would be forced to closet themselves to hide any signifiers of their non-heteronormative
lifestyles.
Eve Kosofsky Sedgwick, who theorized about the role of the closet, phrased it best: “The
closet is the defining structure for gay oppression in this country.” 13 By allowing private citizens
and businesses to discriminate against queer minorities, the state effectively forces them back
into the prison of the closet. It recognizes that queer lives exist in Arizona, while simultaneously
devaluing those lives by legislating the use of the closet. LGBT citizens would be forced to
12
13
State of Arizona Senate. Exercise of Religion; State Action. SB 1062.
Eve Kosofsky Sedgwick. Epistemology of the Closet (Berkley: University of California, 1990), 71.
10
conform to an oppressive cultural standard: the “binary” oppositions of male and female as
absolute, the required masculinity for men and femininity for women, and most importantly “one
man and one woman.” Sedgwick, writing about a teacher’s firing for coming out of the closet,
explains that such institutionalized discrimination “codifies an excruciating system of double
binds, systematically oppressing gay people, identities, and acts by undermining through
contradictory constraints on discourse the grounds of their very being.” 14 The power of
Sedgwick’s theory manifests itself in the issues of SB 1062 and other similar bills. In this
contemporary parallel, the legislature is acting as oppressor in place of the judiciary, yet the
effect remains the same: legalized discrimination forces the use of the closet and preaches hatred
to younger generations.
Thankfully, SB 1062 did not make it past Governor Brewer, who vetoed the bill late
February 2014. While this may seem like a victory for LGBT supporters, the Governor’s
decision was not even remotely due to any genuine concern for queer rights. In a letter to the
Arizona Senate, Brewer details the reasoning behind her veto, “Senate Bill 1062… does not seek
to address a specific and present concern related to Arizona businesses. The out-of-state
examples…are issues not currently existing in Arizona.” 15 In other words, because Arizona has a
constitutional ban on same-sex marriage, the Governor feels comfortable that there is no
terrifying influx of LGBT people. Interestingly, she noted, “the business community
overwhelmingly opposes the proposed law,” 16 demonstrating both the evolving inclusivity of
American corporations as well as the true determining factor of her decision: money. Governor
Brewer made the right decision for the wrong reasons.
14
Eve Kosofsky Sedgwick. Epistemology of the Closet (Berkley: University of California, 1990), 70.
Janice K. Brewer to Andy Biggs, President of the Senate, Feb. 26, 2014, in Official Website of Arizona State
Governor Janice K. Brewer, http://azgovernor.gov/dms/upload/PR_022614_SB1062VetoLtr.pdf.
16
Ibid.
15
11
Although Arizona may have avoided a disastrous piece of legislation, there are still other
states considering equally severe laws. For instance, Georgia’s House Bill 1023, which is
incredibly similar in purpose to Arizona’s SB 1062, is currently making its way through the
House Judiciary Committee. 17 The Missouri Senate is also considering another drastic bill, SB
916, which is almost identical to its failed Arizonan counterpart. 18 Clearly, while pro-LGBT
discourses are blooming on a federal level, the anti-LGBT discourses within state governments
are metastasizing; as it turns out, it may only better for some. Legislation that should be designed
to protect queer minorities from oppression is actually promoting the requirement of the closet
and, as Sedgwick points out, hinders LGBT citizens “from both sides, by the vectors of a
disclosure at once compulsory and forbidden.” 19 It is a crucial time for states to form legislation
that ensures basic civil rights for all, before asserting the pressing need for the right to religious
discrimination.
Conclusion
The proposed legislation in Arizona and other states is the product of an anti-LGBT
discourse, roused by the dwindling acceptance of anti-LGBT policies in federal law. As state
senators and representatives attempt to hold on to an archaic, oppressive mindset by using queer
lives as scapegoats and institutionalizing the function of the closet, the nation moves backwards
in history. It is also unfortunate that these bills only gain media attention when they are about to
be passed into law rather than in their earlier stages. Surely, the work of theorists and activists
helps propel anti-LGBT depravity into the headlines, including the recent scandal surrounding
the involvement of an American preacher who played a vital role in bringing capital punishment
17
“Georgia HB1023.” ELobbyist LLC, 2 Apr. 2014, http://legiscan.com/GA/bill/HB1023/2014.
“Missouri SB916.” ELobbyist LLC, 2 Apr. 2014. http://legiscan.com/MO/bill/SB916/2014.
19
Eve Kosofsky Sedgwick. Epistemology of the Closet (Berkley: University of California, 1990), 70.
18
12
for queer people in Uganda. 20 Beyond the scope of this essay, it would be interesting to
investigate the rising commercialization of “Pride” events, to shed some light on how the
business community affects LGBT political influence and legislation.
The most important thing to remember is that “the love that dare not speak its name”
must speak – nay, shout – now more than ever. Queer theory alone is not going to change the
world, but it represents a crucial stride towards not just imagining equality, but living it too.
Thus, I commit my pen to the cause of acceptance, equality, and the freedom that is bolstered
with every voice that refuses to remain silent. What here shall miss, our toil shall strive to mend.
Update
Same-sex marriage became legal in Arizona on October 17, 2014 after a federal district
court ruled that the state’s ban was unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment. Unfortunately, Governor Brewer may finally find her “specific and
present concern” to “protect” businesses from LGBT citizens. The fight for freedom is far from
over.
20
David Smith. “Ugandan Group Sues Anti-gay Pastor in US.” Guardian News and Media, 16 Mar. 2012,
http://www.theguardian.com/world/2012/mar/15/uganda-gay-group-sues-us-pastor.
Bibliography
13
“Anti-Semitic Legislation, 1933-1939.” United States Holocaust Memorial Museum, accessed
04/02, 2014, http://www.ushmm.org/wlc/en/article.php?ModuleId=10007459.
“David Cameron's Conservative Party Conference Speech in Full.” Guardian News and Media,
accessed 04/02, 2014, http://www.theguardian.com/politics/2011/oct/05/david-cameronconservative-party-speech.
“Georgia HB1023.” ELobbyist LLC, accessed 04/02, 2014,
http://legiscan.com/GA/bill/HB1023/2014.
“Lesbian and Bisexual Health Fact Sheet.” U.S. Department of Health and Human Services,
accessed 04/02, 2014, http://womenshealth.gov/publications/our-publications/factsheet/lesbian-bisexual-health.html.
“Missouri SB916.” ELobbyist LLC, accessed 04/02, 2014,
http://legiscan.com/MO/bill/SB916/2014.
Brewer, Janice K. Re: Senate Bill 1062, edited by Andy Biggs, President of the Senate, Office of
the Governor of Arizona, 2014.
Comer, Matt. “In a Different Time: Gay Life, Love and Sex in the 1970s.” qnotes, accessed
04/02, 2014, http://goqnotes.com/20730/in-a-different-time.
Compton, Wayde. “Pheneticizing Versus Passing.” In After Canaan: Essays on Race, Writing,
and Region: Arsenal Pulp, 2010.
Gast, Phil. “Obama Announces He Supports Same-Sex Marriage.” Cable News Network,
accessed 04/02, 2014, http://www.cnn.com/2012/05/09/politics/obama-same-sex-marriage/.
Rubin, Gayle S. “Afterword.” In American Feminist Thought at Century's End: A Reader, edited
by Kauffman, Linda S., 56-64. Cambridge, MA: Blackwell, 1993.
———. “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality.” In The Lesbian
and Gay Studies Reader, edited by Abelove, Henry, Michèle Aina Barale and David M.
Halperin, 3-44. New York: Routledge, 1993.
Saad, Lydia. “U.S. Acceptance of Gay/Lesbian Relations is the New Normal.” Gallup, Inc.,
accessed 04/02, 2014, http://www.gallup.com/poll/154634/Acceptance-Gay-LesbianRelations-New-Normal.aspx.
Sedgwick, Eve Kosofsky. Epistemology of the Closet. Berkeley: University of California, 1990.
Smith, David. “Ugandan Group Sues Anti-Gay Pastor in US.” Guardian News and Media,
accessed 04/02, 2014, http://www.theguardian.com/world/2012/mar/15/uganda-gay-groupsues-us-pastor.
14
State of Arizona Senate. Exercise of Religion; State Action. SB1062. 51st Leg., 2nd sess. (2014).