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Copyright (c) 2000 The Regents of the University of California
UCLA Law Review
August, 2000
47 UCLA L. Rev. 1467
LENGTH: 19193 words
SYMPOSIUM RACE AND THE LAW AT THE TURN OF THE CENTURY: Black Rights, Gay Rights, Civil
Rights
NAME: Devon W. Carbado*
BIO: * Acting Professor, UCLA School of Law. B.A., 1991, UCLA; J.D., 1994, Harvard Law School. For helpful
comments on, and conversations about, this Article, I thank Pat Cain, Ann Carlson, Kimberle Crenshaw, Martha
Fineman, Laura Gomez, Mitu Gulati, Angela Harris, Cheryl Harris, Jerry Kang, Gillian Lester, Jean Love, Julie
Ralston, Bill Rubenstein, David Sklansky, Giovanna Tringali, Frank Valdes, Don Weise, and Adrien Wing. Beth
Corrier, Marlo Miura, and Peter Masaitis provided valuable research assistance. The Hugh & Hazel Darling Law
Library at UCLA provided extraordinary service. The UCLA Academic Senate funded this project. Early iterations of
this Article were presented at the Gender Race and Justice Symposium at the University of Iowa, College of Law, the
UCLA African American Studies Center, the Critical Race Theory Workshop held in Washington, D.C., and the
Critical Race Theory Conference held at Yale Law School.
LEXISNEXIS SUMMARY:
... They insisted that the rhetoric the military employed to justify and legitimize the politics of racial segregation in the
armed forces is the same as the rhetoric the military employs today to justify and legitimize the politics of "the closet" in
the armed forces. ... He deploys this race/identity-homosexuality/lifestyle dichotomy to challenge military
discrimination against black, presumptively heterosexual, people and to legitimize discrimination against homosexual,
presumptively white, people. ... For as I will show, the analogizing of race to sexual orientation, the argument that
blacks are like gays, is buttressed by some of the same assumptions about black identity and gay identity that support
the notion that blacks are not like gays. ... Third, comparability arguments about language, identity, and experience
erase black gay and lesbian identities and, simultaneously, obscure white gay and lesbian racial privilege. ... In other
words, the black/gay rhetorical substitution constructs an interracial race/sexual orientation analogy in which whiteness
overdetermines the content of gay and lesbian identities, and heterosexuality overdetermines the content of black
identity. ... Point 2 identifies and invites a comparison between black identity, which is affected by racial
discrimination, and gay and lesbian identities, which are affected by sexual orientation discrimination. ... It delineates
black identity in terms of sexual orientation and homosexual identity in terms of race. ...
TEXT:
[*1468]
Introduction
In the context of the "Don't Ask, Don't Tell" n1 controversy, some gay rights proponents argued that the military's
historical discriminatory policies against blacks are like the military's current discriminatory policies against gays and
lesbians. n2 They insisted that the rhetoric the military employed to justify and legitimize the politics of racial

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segregation in the armed forces is the same as the rhetoric the military employs today to justify and legitimize the
politics of "the closet" n3 in the armed forces.
Several black antiracist proponents who joined the public debates about "Don't Ask, Don't Tell" challenged these
black/gay analogies. Specifically, [*1469] they argued that blacks are not like gays; therefore, the military's
discrimination against blacks is not the same as the military's discrimination against gays and lesbians. This Article
argues that the pro-gay rights employment of, and the responses of black antiracists to race/sexual orientation analogies
marginalized black gays and lesbians. Both the deployment of the analogies and the antiracist responses privileged
white homosexuality and black heterosexuality. Throughout the debates about "Don't Ask, Don't Tell," black identity
was represented as heterosexual and gay identity was represented as white.
The invisibility of black gays and lesbians in both gay rights and black antiracist discourses about "Don't Ask,
Don't Tell," raises serious questions about the legitimacy of civil rights agendas that fail to address intragroup
differences. Not all black people are straight. Not all gay people are white. Both of these points seem obvious enough.
Yet, black antiracism and white gay and lesbian civil rights advocacy n4 continues to reflect essentialized notions of
black and gay identity. n5 This essentialism reifies the idea that, in fashioning a civil rights agenda, all of the black
people (who matter) are straight and all of the gay people (who matter) are white. This Article challenges this
essentialism. It constitutes an antihomophobic intervention into black civil rights advocacy and an antiracist
intervention into gay rights advocacy. These interventions highlight what I call the politics of intracommunity
differences - the political ways in which differences within a specific identity community are negotiated, politically
expressed, and represented in the community's civil rights agenda. n6
[*1470] There are several questions one might raise with respect to intracommunity differences. To what extent
do such differences render the community politically or ontologically unmanageable? n7 Does the negotiation of these
differences systematically privilege the victim status n8 of community members with particular identitities? Do certain
kinds of differences operate to disqualify individuals from membership in the community or to diminish their civil
rights standing? n9 This Article does not give full treatment to all of these questions. I have explored some of them more
fully elsewhere. n10 My aim here is more limited: (1) to complicate the ways in which we conceptualize and articulate
identity and identity-based communities n11 and (2) to suggest that how we conceive of identity and identity-based
communities both structures and determines [*1471] how we perform civil rights work. n12 I pursue both aims within a
specific political and antidiscrimination context: gay rights and black antiracist debates about the military's "Don't Ask,
Don't Tell" policy.
Part I situates black antiracist responses to race/sexual orientation analogies in the context of a broader discussion
about the ways in which some black antiracist practices - politics and civil rights engagements - normalize
heterosexuality. This normalization is reflected in two interrelated, though analytically distinct, arguments about the
negative relationship between black identity and homosexuality: (1) Black identity requires heterosexuality - in other
words, homosexuality is fundamentally unblack; and (2) Blackness and homosexuality are different - the former is
biologically determined identity, the latter is a freely chosen lifestyle. These arguments did not occupy the same
political or rhetorical space in the antiracist discourse about "Don't Ask, Don't Tell." In fact, the notion that
homosexuality is fundamentally unblack was rarely publicly articulated. But both arguments feed on each other
politically. That is to say, each exists in a discursive field that makes the other possible. Thus, it is difficult to
understand the vigor with which some antiracist proponents opposed race/sexual orientation analogies without having a
broader understanding of how homosexuality is obscured, denied, and pathologized in some black antiracist discourses.
Part II shifts the analysis from black antiracist politics to white gay and lesbian civil rights activism. Here, I lay out
and critique the race/sexual orientation analogies some gay rights proponents deployed to challenge the military's sexual
orientation discrimination. In the context of this discussion, I advance two broad claims: (1) The analogies privileged
white gay and lesbian identities, and they marginalized black gay and lesbian identities; and (2) The rhetorical force of
the analogies derived, in part, from the ahistorical and essentialized ways in which gay rights proponents misrepresented
black identity and gay and lesbian identities.

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[*1472] Part III focuses on a specific aspect of the gay and lesbian civil rights strategy: the representation of gay
and lesbian victimization. It argues that gay rights challenges to the "Don't Ask, Don't Tell" policy created the
misimpression that, with respect to a civil rights agenda, all of the gay and lesbian people who matter are white. In part,
this impression was fostered by the fact that the gay rights advocates' representative gay man, the person they presented
as the icon of gay victimization, was white. The strategy was to present a "but for" gay man - a man, who, but for his
sexual orientation, was just like everybody else, that is, just like every other white heterosexual person. Moreover, to the
extent that lesbians were featured in the gay rights discourse, they, too, were white. n13 Notwithstanding that Perry
Watkins, a black army sergeant, was the first openly gay serviceman to challenge successfully the military's
discriminatory policies against gays and lesbians, n14 gay rights activists did not, according to Watkins, solicit his
participation. Nor did they meaningfully incorporate his story into their platform. Indeed, throughout much of the
controversy about the "Don't Ask, Don't Tell" policy, Perry Watkins was invisibly out of the closet.
I. Race, (Homo)Sexual Orientation, and Black Antiracism
The notion that blacks are not like gays takes several rhetorical forms in black antiracist discourse. This part outlines
two of these arguments: (1) Homosexuality is unblack, and (2) Race, unlike homosexuality, is biologically determined
and homosexuality, unlike race, is freely chosen. Most of the discussion focuses on the second claim, for it is clearly
reflected in and reproduced by some black public responses to race/sexual orientation analogies. n15
[*1473]
A. Homosexuality Is Unblack
Perhaps the most problematic argument about the relationship between black identity and homosexuality is the idea
that in a biological, cultural, and "natural" sense, homosexuality n16 is fundamentally unblack. n17 This notion has
[*1474] deep roots in black social and political culture, and it provides a backdrop for the emergence of the more
nuanced arguments some antiracist proponents advanced in the context of the "Don't Ask, Don't Tell" controversy.
Stated directly, the claim is that blacks are not like gays because homosexuality is a white phenomenon. n18 Nathan and
Julia Hare, for example, argued almost twenty years ago that there is "no[] need to engage in endless debates about the
pros and cons of homosexuality....Homosexuality does not promote black family stability and ... it historically has been
a product largely of the Europeanized society." n19 More recently, Louis Farrakhan suggested to gay black men that
"you weren't born that way brother....You never had a strong male image." n20
The idea "that homosexuality is something that white people "do' [and something that Black people should not "do']
has been circulated and reified in black communities at least since the 1960s." n21 This helps to explain why in [*1475]
1963 Bayard Rustin, a gay black man and one of the main organizers of the March on Washington, n22 was not accepted
by some members of the civil rights movement. n23 Rustin was not supposed to be a homosexual. And certainly, as a
homosexual, he was not supposed to represent the black community, n24 that is to say, assume the role of a "race man" a man with racial standing to articulate a political vision for black community building and uplift. n25 To the extent that
Rustin was to participate in the civil rights movement, his sexuality n26 would have to be contained; n27 he would have
to be invisibly out.
[*1476] Black assertions that homosexuality is a white phenomenon sometimes employ history as an explanation.
According to the rap cultural icon Professor Griff of Public Enemy, for example, "In knowing and understanding black
history, African history, there's not a word in any African language which describes homosexual, y'understand what I'm
saying? You would like to make them part of the community, but that's something brand-new to black people." n28
The notion that homosexuality is "brand new" to black people is intended to convey the idea that precolonial black
people were exclusively heterosexual. Colonialism damaged the black race, the argument goes, by destroying the
heterosexual black family. This destruction was achieved by the emasculation of black men, reflected most clearly in
black gay identity, and the defeminization of black women, reflected most clearly in black lesbian identity. The claim,

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more directly, is this: "Before the white man came, African men were strong, noble protectors, providers, and warriors
for their families and tribes. In precolonial Africa, men were truly men. And women - were women. Nobody was
lesbian. Nobody was feminist. Nobody was gay." n29
This pre-Diaspora historiography clearly reveals the link between the racialization of homosexuality as white and
the ontological conception of blackness as heterosexual. Perhaps we are not surprised, then, when Molefi Asante, author
of Afrocentricity, asserts that homosexuality is not an "Afrocentric relationship[]." n30 Indeed, Asante's conception of
Afrocentricity n31 requires black homosexuals to subordinate their individual sexual orientation for the development of
healthy black families and a healthy black community. n32
In some sense, this revisionist heterosexual conception of the organization of the black family is a political response
to the social construction of black [*1477] family arrangements as dysfunctional. Consider, for example, Daniel P.
Moynihan's The Negro Family: The Case for National Action, which legitimized and popularized the notion of black
familial dysfunction. According to Moyhihan,

in essence, the Negro community has been forced into a matriarchal structure which, because it is so out of line with the
rest of American society, seriously retards the progress of the group as a whole, and imposes a crushing burden on the
Negro male, and in consequence, on a great many Negro women as well.
...
Ours is a society which presumes male leadership in private and public affairs. The arrangements of society
facilitate such leadership and reward it. A subculture, such as that of the Negro American, in which this is not the
pattern, is placed at a distinct disadvantage. n33
For Moynihan, the reversed roles of husband and wife within the black community not only impede black social and
economic development, they also produce social pathology. In this analysis, heterosexuality and male dominance are
posited as a political exit strategy for "the truly disadvantaged" - a way out of "the tangle of pathology." n34 Although
Moyhihan's report was written in 1965, the patriarchal and heterosexist content of his arguments continues to have
political purchase today - and in black antiracist discourse.
Of course, not all antiracist proponents or Afrocentrics share the notion that homosexuality threatens black
community well-being. n35 Indeed, many black people would vociferously disavow this idea. n36 Still, the notion
occupies sufficient political space in antiracist discourse to justify its reproduction here.
The more general problem for black gays and lesbians vis-a-vis black community politics and civil rights relates to
authenticity. n37 One's (in)authenticity as a black person is linked to, among other things, one's (homo)sexual identity.
As Cornel West observes, "black gay men who reject the major stylistic option of black machismo identity...[are]
penalized in black America for [*1478] doing so. In their efforts to be themselves they are told they are not really
"black men.'" n38 Real black men and real black women are resolutely heterosexual. n39 In some sense, being out as a
black gay or lesbian in the black community is race negating. n40 To the extent that it is not, black gays and lesbians are
required to prioritize or fragment aspects of their identity. n41 They have to decide whether, first and foremost, they
want to be black or gay. And they have to understand that choosing the latter portends "the death of the race." n42
B. Race Is an Identity; Homosexuality Is a Lifestyle
The more sophisticated, though not unproblematic, antiracist argument that gays are not like blacks is reflected in black
civil rights participation in the public debates concerning the "Don't Ask, Don't Tell" policy. To a large extent, the
purpose of the intervention was to critique the Gay Movement's [*1479] "appropriation" n43 of black civil rights

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symbols, heroes, and rhetoric. n44 Some of those who intervened opposed the black/gay analogies the gay rights
proponents employed to challenge "Don't Ask, Don't Tell." n45 This part focuses on the intervention of John Butler,
perhaps the most distinguished black American military sociologist. n46 Butler's argument reflects the simplistic notion
that race is a static identity and that homosexuality is a changeable lifestyle. He deploys this
race/identity-homosexuality/lifestyle dichotomy to challenge military discrimination against black, presumptively
heterosexual, people and to legitimize discrimination against homosexual, presumptively white, people. This part
unpacks and critiques Butler's claims. As I show, his arguments reflect an oppositional conceptualization of race and
homosexuality that normalizes and authenticates white gay and black heterosexual identities.
According to Butler, one should not compare homosexuality, which is colorblind and "running through all racial
groups," n47 with race, which arranges individuals into different groups. n48 To illustrate the nature of the difference
between race - read here: straight blacks - and sexual orientation - read here: [*1480] white gays and lesbians - Butler
asks the following rather pointed and rhetorical question: "Where did these people drink water during the days of
segregation? If the answer is that they drank from the "Whites Only' fountain, instead of the "Coloreds Only' fountain,
then their oppression should be seen in a different historical light than that of black Americans." n49
Interestingly, Butler seems to want to both recognize and deny black gay identity. He understands that
homosexuality is not race specific, that "it runs through all racial groups." n50 Yet, in thinking about blacks and
segregation he normalizes heterosexuality - it is his black identity starting point. Further, he racializes heterosexuality as
white. Thus, his question, "Where did these [gay] people drink water during the days of segregation?" The question
presupposes a white gay sexual identity, otherwise his query is not meaningful. Most of us know from which water
fountains black people drank in the segregated south. n51
But Butler is mindful that black gays and lesbians exist. He does not argue that blacks are not gay or that gays and
lesbians are not black. Further, he recognizes that "when someone says, blacks and homosexuals, they automatically
leave out blacks who are homosexuals." n52 Yet, Butler completely ignores or fails to realize that the argument "gays
are not like blacks" - elides the reality that blacks are in fact gay. n53 Indeed, the claim has force only if the gay and
black identity represented in the argument are, respectively, white and heterosexual.
Perhaps Butler's black/gay difference claim is best understood as a comparison between race qua race and
homosexuality qua homosexuality - between race unsexuated n54 and sexuality unraced. n55 And, perhaps Butler is
interested in disaggregating race from sexuality in this way to biologize race and socially construct (homo)sexuality.
The claim would be that, while homosexuality is behavioral and voluntary, race is not; n56 and while race is not
changeable, n57 [*1481] homosexuality is. Thus, "comparing homosexuals to blacks is comparing a lifestyle with a
race: an achieved characteristic with one that is ascribed; a choice in expressed lifestyle with one that is by and large not
a choice....Certainly there is more choice about one's sexuality than about one's race." n58
For at least two reasons Butler conceptualizes homosexuality as behavior. First, this conceptualization allows
Butler to argue that homosexuality is not an identity: "Men and women who engage in homosexual behavior do not
make up a separate racial or ethnic group; they do not have a history of all emerging from a common continent (there is
no country called homosexual land), but rather are found throughout all populations." n59 Significantly, Butler does
conceive of religious-based identities, n60 even though certain religions transcend specific racial and ethnic groups.
Failing to see that his conception of identity is not prepolitical (why is identity narrowly defined to mean belonging to a
separate racial, ethnic, or religious group?), Butler insists that "[a] white homosexual is just a white man with a different
sexual lifestyle, and a black lesbian is simply a black woman with a different lifestyle." n61
The rhetorical strategy at work in Butler's analysis is clear: "white" and "black" are deployed to convey identity
(conceptualized as static and fixed), and "homosexual" and "lesbian" are deployed to convey a lifestyle (conceptualized
as fluid and fixable). n62 From this, we are to conclude that there is agency [*1482] in homosexuality but not in race.
Race is a given; homosexuality is a choice. Race is the noun, homosexuality the verb. Thus, for Butler, a black lesbian
is really just another black person with a different lifestyle. n63

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Butler's conception of blackness normalizes heterosexuality. To be sure, Butler does not explicitly argue that the
normal black person is heterosexual. However, we can infer this much from his dichotomous representation of"black"
on the one hand versus "gay" and "lesbian" on the other. A slight modification of one of Butler's central claims reveals
the normalization of heterosexuality in his argument. Recall Butler's assertion that "[a] white homosexual is just a white
man with a different sexual lifestyle, and a black lesbian is simply a black woman with a different sexual lifestyle." n64
Insert the word "heterosexual" before "man" and "woman" and the sentence becomes: A white homosexual is just a
white heterosexual man with a different lifestyle, and a black lesbian is simply a black heterosexual woman with a
different lifestyle. This conception of blackness presupposes heterosexuality. n65 The black woman in Butler's argument
has to be heterosexual. For it is only with her heterosexuality [*1483] in mind that the black lesbian in the same
sentence becomes different. For Butler, homosexual blacks are heterosexual blacks, only less so. n66
The second reason why Butler formulates homosexuality as behavioral is to represent blackness in a way that
transcends sexual orientation, as though blackness exists outside of sexual identities. Butler's behavorialist
conceptualization of homosexuality allows him to conceive of race as an essential category, unmodified by sexuality.
His unmodified antiracism n67 imagines a black discriminatory experience that is tout court: "Black homosexuals, like
all blacks, have had a different experience in the workplace [than whites]." n68 Although I share Butler's observation,
his reasoning obscures the fact that heterosexual blacks and openly gay and lesbian blacks have different workplace
experiences as well. n69 Butler's racial essentialism ignores the extent to which the sexualization of race affects the
nature and extent of discrimination against black lesbians and gays. n70
I should be clear to point out that my critique of the claim that "blacks are not like gays" is not intended to
legitimize race/sexual orientation analogies. That is to say, in interrogating Butler's analysis, I am not arguing that
blacks are in fact like gays. For as I will show, the analogizing of race to sexual orientation, the argument that blacks are
like gays, is buttressed by some of the same assumptions about black identity and gay identity that support the notion
that blacks are not like gays. I develop this argument below. Focusing on gay civil rights responses to "Don't Ask, Don't
Tell," Part II argues that gay rights activists' employment of (like the black antiracist resistance to) race/sexual
orientation analogies privileged black heterosexuality and rendered white identity the default race for lesbian and gay
experiences.
[*1484]
II. Eracing Race: Comparing Race and Sexual Orientation
During the "Don't Ask, Don't Tell" controversy, gay rights proponents sought to legitimize a sexual identity
antidiscrimination norm by analogizing to historical race discrimination. Specifically, gay activists compared the
military's current discriminatory practices against gays and lesbians n71 to the military's historical discriminatory
practices against blacks. n72 Thus, the following syllogism emerged: Because it is illegal and immoral for the military to
discriminate against blacks, it should be illegal and immoral for the military to discriminate against gays and lesbians.
n73

In a sense, the gay rights proponents were engaged in what Jane Schacter refers to as a "discourse of equivalents."
This discourse is constituted by inquiries into "whether gay men and lesbians are sufficiently "like' other protected
groups, and whether sexual orientation is sufficiently "like' race." n75 Schacter is critical of a "discourse of equivalents"
because, among other reasons, "current civil rights laws are held out as the normative baseline against which the gay
civil rights claim is tested." n76 Importantly, when Schacter speaks of a discourse of equivalents she does not have
pro-gay rights discourse in mind. Rather, she [*1485] is referring to the rhetorical strategy deployed by opponents of
gay rights initiatives and legislation, who invoke the analogy to delegitimize and undermine claims for gay equality and
equal protection. n77
n74

Yet, a discourse of equivalents - blacks are like gays - is also problematic in the context of gay rights advocacy. In
this arena as well, this discourse must be "decoded." Not only does a discourse of equivalents suggest that gay and

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lesbian civil rights claims are legitimate only to the extent that gays and lesbians are perceived to be like blacks or other
racial minorities, it also falsely disaggregates race and sexuality. At least two consequences flow from this
disaggregation. For one thing, the disaggregation entrenches the perception that black identity and gay identity are
mutually exclusive categories with separate and distinct social realities. n78 For another, it contributes to the
normalization of white gay and black heterosexual identities. n79 Below I argue that both of these problems attended the
race/sexual orientation analogies gay activists employed to challenge "Don't Ask, Don't Tell." Moreover, the rhetorical
force of the analogies derived, in part, from the lack of attention gay rights proponents paid to history and social
context.
A. Facial Comparisons Between Race and Sexual Orientation: A Look at Language
To support the claim that the rationales proffered for the segregation of blacks in the military are the same as the
rationales proffered for the [*1486] exclusion n80 of gays and lesbians from the military, gay rights proponents often
invoke the anti-integration argument Admiral W.R. Sexton made in a 1942 memorandum to the Secretary of the Navy
(Navy Memorandum).

The close and intimate conditions of life [in the armed forces], the necessity for the highest possible degree of unity and
the esprit-de-corps; the requirement of the morale - all these demand that nothing be done which may adversely affect
the situation. Past experience has shown irrefutably that enlistment of the Negroes other than for mess attendants leads
to disruptive and undermining conditions. It should be pointed out in this connection that one of the principle objectives
by subversive agents in this country attempting to break down the existing efficient organization is by demanding
participation of minorities in all aspects of defense, because such participation tends to disrupt present smooth working
organizations....The loyalty and patriotism should be such that there be no desire on their part to weaken or disrupt
present organization. n81
According to David Smith, the spokesperson for Campaign for Military Service, a gay and lesbian coalition group,
substituting the words "gay" and "lesbian" for the word "Negro" reveals the similarities between the rationales the
military offered to justify black racial segregation in the armed forces, on the one hand, and the rationales the military
advances today to legitimize sexual orientation discrimination on the other. n82
Smith's argument has more force if we examine two additional texts: (1) a Department of Defense Directive
(Defense Directive) justifying the military's [*1487] discrimination against gays and lesbians, and (2) a 1942 statement
from the Secretary of the Navy (Navy Statement) supporting racial segregation in the armed forces. Consider first the
Defense Directive, which reads, in part:

Homosexuality is incompatible with military service. The presence in the military environment of persons who engage
in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct,
seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the
ability of the Military Services to maintain discipline, good order, and morale; to foster mutual trust and confidence
among servicemembers; to ensure the integrity of the system of rank and command; to facilitate assignment and
worldwide deployment of servicemembers who frequently must live and work under close conditions affording minimal
privacy; to recruit and retain members of the military services; to maintain the public acceptability of military service.
n83

Now consider the Navy statement, which reads, in part:

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Men on board ships live in particularly close association; in their messes, one man sits beside another; their hammocks
or bunks are close together; in their tasks such as those of gun crew, they form a closely knit, highly coordinated team.
How many white men would choose, of their own accord, that their closest associates in sleeping quarters, at mess, and
in gun crews should be of another race? How many would accept such conditions, if required to do so, without
resentment and just as a matter of course? The General Board believes that if the issue were forced, there would be
lowering of contentment, teamwork and discipline in the service. n84
These texts suggest that at different historical moments in America the armed forces have employed military necessity
arguments to justify racial segregation in and the exclusion of gays and lesbians from the military. n85 Blackness and
homosexuality threaten military discipline, organization, morale, and readiness.
Given the use of military necessity rhetoric to enforce and legitimize heterosexism and racism in the military, one
might reasonably advance what I refer to as "language comparability argument" to connect racially and sexually
oriented military practices. The argument would go something like the following: The language the military employs to
justify the exclusion of gays [*1488] and lesbians from the military is the same as or similar to the language the
military employed in the past to legitimize black racial segregation. n86 Vis-a-vis race, this language has been
discredited. Thus, it should have no force with respect to sexual orientation.
There are several problems with language comparability arguments. First, facial comparisons of language obscure
the political and historical context in which the language is or was deployed. n87 Second, in the context of the "Don't
Ask, Don't Tell" controversy, comparability arguments about language became comparability arguments about identity
(black and gay) and discrimination (racism and homophobia). Third, comparability arguments about language, identity,
and experience erase black gay and lesbian identities and, simultaneously, obscure white gay and lesbian racial
privilege. This erasure and obfuscation of the racial dimensions to sexual identity, n88 helped to produce and to
legitimize a white gay and lesbian civil rights campaign.
[*1489]
B. The Language and the Obfuscation of History
Facial comparisons of language tell us nothing about the political and historical context of the language - that is to say,
when and politically why the language was written. Consider again the following language from the Navy Statement:
"Men on board ship live in particularly close associations; in their messes, one man sits beside another; their hammocks
or bunks are close together; in their common tasks such as those of gun crew, they form a closely knit, highly
coordinated team." n89 On its face, and read outside its historical context, this language seems more to be about
(homo)sexual anxiety than racial anxiety. The language invites us to think about "cruising" n90 - that is to say (and in
this context), the "gay gaze." The notion would be that heterosexual military men are worried about being the object of
gay desire, n91 for such [*1490] objectification threatens their notion of manhood. n92 Richard Mohr puts the point this
way:

The gay soldier's presence does not prevent the nongay soldier from performing any action, does not violate his liberty
in any way. Rather, what the nongay soldiers lose by gay soldiers' presence is the absolute authority to control the
interpretation of the meaning of their lives....That this is the nature of the fear is made clear by the military's own
admission that completely closeted gays are okay in the military. The desire of a completely closeted gay man is (at
least) whatever physical threat the desire of a noncloseted one is. But the completely closeted gay man and his
completely unacknowledged desire do not press the nongay man to reflect on his identity and place in the cosmos. The
nongay soldier's worry is not that his body will be raped but that his conception of himself will be raped, disrupted,
destroyed. The penis penetrates the body, but the gaze penetrates the soul. n93

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Read outside of its political and historical context, then, the language from the Navy Statement can be interpreted to be
about the relationship among [*1491] homosexual orientation, manhood, and military social norms - the extent to
which homosexual presence threatens white heterosexual manhood and white heterosexist military culture. n94
Of course, ideologies about masculinity and manhood are not irrelevant to the politics of racial segregation in the
armed forces. Indeed, masculinity - as a socially constructed n95 and reiterative identity n96 - is a very useful trope to
understand the complex ways in which military culture excludes certain groups. n97 As an historical matter, military
manhood has been buttressed by racism, sexism, and heterosexism. Consequently, the military has preferred [*1492]
people who are white, male, and heterosexual. n98 Still, in thinking about how military practices have affected people
who are not white heterosexual males, it is important to distinguish among three interrelated arguments. First, military
norms create a preference for an in-group, namely, white heterosexual men. Second, military preference for this
in-group effectuates discrimination against various out-groups, namely, all women and gay and straight men of color.
Third, the discrimination against each out-group - racism, sexism, and homophobia - is the same and/or is achieved in
the same way. n99 I agree with the first two arguments but disagree with the third. All three claims are reflected (and
sometimes conflated) in comparability arguments.
C. The Difference History Makes
Having argued that facial comparisons of language obscure history and social context, the question becomes, what
difference do history and social context make? In other words, how does the context of 1940s America help us
understand the language from the military statements justifying racial discrimination and exclusion?
Consider again the Navy Statement, written in the context of Jim Crow. The prosegregation military officials who
promulgated this document were not worried about black (presumptively heterosexual) men cruising white
(presumptively heterosexual) men. n100 The concern was not about the gay gaze or gay bodies, though bodies certainly
mattered n101 - especially black bodies. n102 Instead, the Navy Statement reflects the then pervasive notion of the black
body as contaminated and contaminating, n103 and the notion of black people as inferior. When, [*1493] for example,
Congressman Stephen Pace from Georgia argued, in a letter to the Secretary of the Navy, against racial integration of
the armed forces on the ground that "white boys [would be] forced to sleep with...negroes," n104 his fear was not about
gay men homosexually sleeping with heterosexual men; rather, he was worried about black men interracially sleeping
with white men. n105 Here, racial penetration is at stake. n106 Military officials and politicians were worried about the
"amalgamation of the races" n107 - that is to say, interracial intimacy. n108 In this sense, racial segregation in the armed
forces was an important part of the disciplinary apparatus of Jim Crow; it reflected and reinforced the racial logic of
Plessy v. Ferguson; n109 it signified and reproduced black second-class citizenship.
[*1494] In fact, the military often justified racial discrimination against blacks by arguing that such discrimination
was normative - an acceptable aspect of American social, political, and legal culture. Consider, for example, the
argument the Chairman of the Navy invoked to defend the navy's racially discriminatory policies:

"The Navy Department is accused of discriminating against the negro by refusing to permit the enlistment of negroes, in
the Navy, in other than messman ratings. If such is discrimination, it is but part and parcel of similar discrimination
throughout the United States....The reasons for discrimination, in the United States, are rather generally that:
(a) the white man will not accept the negro in a position of authority over him;
(b) the white man considers that he is of a superior race and will not admit the negro as an equal; and
(c) the white man refuses to admit the negro to intimate family relationships leading to marriage.

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These concepts may not be truly democratic, but is it doubted if the most ardent lovers of democracy will dispute
them, particularly in regard to intermarriage." n110
Military officials and politicians understood perfectly well that integrating the armed forces would create racial
precedent for a broader-based racial integration movement. They knew, in other words, that racial integration in the
armed forces would highlight, challenge, and call into question racial segregation in American life. Black antiracist
proponents knew this as well - that military participation, especially combat, undermines societal discrimination,
[*1495] especially racial discrimination. n111 The thinking was that if black people performed a citizenship duty,
perhaps they would be granted citizenship rights. n112 In short, black civil rights proponents attempted to exploit, and
white military officials and politicians worked racially to control, the citizenship-conferring possibilities of military
service.
To be sure, this exploit/control citizenship dynamic was reproduced in the public debates about "Don't Ask, Don't
Tell." That is to say, gay rights activists attempted to exploit and military officials attempted to control the
citizenship-conferring possibilities of military service. People on both sides of the "Don't Ask, Don't Tell" controversy
understood that sexual orientation equality in the military would create precedent for sexual orientation equality in all
aspects of American life. More was at stake than the narrow, though important, question of whether gays and lesbians
should be permitted to serve openly in the military. n113 The debates about sexual orientation and military service, like
the debates about race and military service, are really about citizenship. n114
And indeed, "citizenship and eligibility for military service have gone hand in hand." n115 In other words, one's
citizenship standing relates to, among other things, one's eligibility, or worthiness, for military service. n116 Because the
[*1496] military has employed both race and sexual orientation to police military membership, it makes sense that,
with respect to civil rights strategy, there would be some convergence between gay rights and black antiracist
challenges to military discrimination.
Articulating the connections between race, sexual orientation, and military status on the one hand, and race, sexual
orientation, and citizenship status on the other, is important. However, in doing so, we should examine the extent to
which the role the military historically has played in restricting the rights and the duties of citizenship by race differs
from the role the military currently plays in restricting those rights and duties by sexual orientation. Of course, there are
similarities. Thus, I am not suggesting we should never advance language comparability arguments. n117 I am simply
urging caution. Facial comparisons of race and sexual orientation obscure important history. n118 David Smith's
invocation of the Navy Memorandum does precisely that. Specifically, his analysis does not attend to an important and
uncontestable historical reality: The language in the Navy Memorandum reflects the military's unwillingness to
challenge the racial logic of Jim Crow. In this sense, it is formative and reflective of a segregationist regime that
enforced racial hierarchy. n119 Substituting the words "gay" or "lesbian" for the word "Negro" in the Navy
Memorandum obscures this racial history. n120 More than that, the black/gay rhetorical substitution does discursive
violence n121 to black peoples' subordinating experiences under Jim Crow.
[*1497]
D. Identity Switching
There is another problem with analogizing the language the military employed to discriminate against black people in
the 1940s with the language the military currently employs to discriminate against gays and lesbians. This problem
relates to what I call "identity switching." Recall again the argument that substituting the words "gay" and "lesbian" for
the word "Negro" in the Navy Memorandum reveals the similarities between the military's historical arguments for
racial discrimination against blacks and its current arguments for discrimination against gays and lesbians. n122 This
black/gay rhetorical substitution can be understood to be an argument about language. As I have suggested, this is an
important, though controversial, argument to make. Here, I critique the identity switch the argument effectuates.

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To the extent that black identity and gay identity are simply switched, the impression is created that in some
substantive sense (1) gay identity and black identity are very similar; and (2) at least in the context of the military,
historical racial discrimination against blacks is similar to current sexual orientation discrimination against gays and
lesbians. One problem with facial comparability arguments about language, then, is that they easily become or are
interpreted as comparability arguments about identity (black and gay) n123 and/or discrimination (racism and
homophobia). n124
The question now becomes: What is wrong with comparability arguments about identity and/or discrimination?
Even if one agrees with the claim that comparability arguments about language promote or inevitably become
comparability arguments about identity and discrimination, one still might ask, "So what?" Indeed, if one is of the view
that the identities or the discriminatory experiences being compared are in fact alike, one might take the position that
such comparisons are a good thing - descriptively accurate and politically pragmatic. Below, I demonstrate what is
wrong with identity comparability arguments. To do so, I distinguish between interracial and intraracial comparisons. I
employ the black/gay rhetorical substitution argument to illustrate the interracial problem and the common pro-gay
rights claim "we [gay people] are just like everybody else" to illustrate the intraracial problem.
[*1498]
1. The Interracial Race/Sexual Orientation Analogy
The suggestion that we can and should substitute the word "Negro" in the Navy Memorandum with the word "gay" or
"lesbian" is troubling for two interrelated reasons. Not only does this substitution advance the notion that blackness and
homosexuality are exclusive identities, it also renders whiteness the default race n125 for homosexuality, and
heterosexuality the default sexual orientation for black people. n126 In other words, the black/gay rhetorical substitution
constructs an interracial race/sexual orientation analogy in which whiteness overdetermines the content of gay and
lesbian identities, and heterosexuality overdetermines the content of black identity. The substitution invites a
comparison between black (heterosexual) victimization caused by past racist military practices and (white) gay and
lesbian victimization caused by current homophobic military practices. Blackness is employed here not to discuss black
homosexual identity, for example, how "Don't Ask, Don't Tell" affects black gays and lesbians, but rather historically to
discuss black racial identity, for example, how the military's past racist practices affected - heterosexual and closeted blacks. Blackness is relevant here only to the extent that it supports a narrow conception of gay rights. n127
Whiteness is employed not to racialize the pro-gay rights discourse, white gay and lesbian identity, or current racial
military practices, n128 but to draw attention to the similarities between the discussions in the 1940s about the legitimacy
of a racially segregated military and current discussions about the legitimacy of excluding openly gay and lesbian
individuals from the military. n129 The gay activists' misuse of whiteness obscures how race is implicated in and
[*1499] racism is reproduced by current military culture and elides the racial aspects of gay identity. In the interracial
analogy, whiteness is relevant only in a historical sense. Invisible, then, is not only how whiteness operates as a racial
norm for homosexual identity and how heterosexuality operates as a sexual identity norm for black racial identity, but
also how race structures contemporary military practices. The comparison is between ostensibly unsexuated n130
heterosexual black people (who were affected by historical racial discrimination in the military) and ostensibly unraced
white gays and lesbians (who are affected by contemporary sexual orientation discrimination in the military). The
interracial analogy conveys the idea that to be black is to be heterosexual; to be homosexual is to be white. Figure 1
attempts to capture these points more schematically.
Figuure 1
[SEE FIGURE IN ORGINAL]
Point 1 identifies and invites a comparison between two forms of discrimination: racially and sexually oriented.
Point 2 identifies and invites [*1500] a comparison between black identity, which is affected by racial discrimination,

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and gay and lesbian identities, which are affected by sexual orientation discrimination. Point 2 reflects the argument that
blacks are like gays. Here, the sexual orientation of blacks and the racial identity of gays and lesbians are unspecified.
Point 3 illustrates the interracial nature of Point 2's black/gay analogy. It delineates black identity in terms of sexual
orientation and homosexual identity in terms of race. This delineation suggests four analogies:

Analogy 1: Homosexual blacks are like black homosexuals,

Analogy 2: Homosexual blacks are like white homosexuals,
Analogy 3: Heterosexual blacks are like black homosexuals, and
Analogy 4: Heterosexual blacks are like white homosexuals.
The question becomes which, if any, of the foregoing analogies were gay rights proponents advancing under the more
general claim that "blacks are like gays"? It is unlikely that they were advancing either of the first two analogies. With
respect to the first, the idea that homosexual blacks are like black homosexuals is not controversial. Indeed, one might
argue that this is not an analogy at all, that the identities being compared are exactly the same. However, even if one
takes the position that the two identities are not the same - that the assertion of a homosexual black identity has a
different social meaning than the assertion of a black homosexual identity - the "analogy" remains largely
uncontroversial. With respect to the second, the claim that homosexual blacks are like white homosexuals does little to
challenge the "Don't Ask, Don't Tell" policy. All gays and lesbians, regardless of their race, are subject to the
requirements of the policy.
Nor is it likely that gay rights proponents were interested in advancing the third analogy - namely, that heterosexual
blacks are like homosexual blacks. This analogy would have limited political value in the context of a gay rights
campaign that focused attention on military discrimination against white lesbians and gays. n131 This brings us to the
fourth analogy: Heterosexual blacks are like white homosexuals. To the extent that this analogy is accepted, it has
enormous political purchase. Because the military is prohibited from discriminating against heterosexual blacks, the
arguments that heterosexual blacks are like homosexual whites helps to delegitimize discrimination against the latter.
Point 4 on the diagram reflects this analogy.
[*1501]
2. The Intraracial Race/Sexual Orientation Analogy
The intraracial race/sexual orientation analogy is reflected in the following claim: "We (gays and lesbians) are just like
everybody else." Consider, for example, Margarethe Cammermeyer's statement to the New York Times explaining why
she was challenging her discharge:

What I hope to represent is a part of the normality of being homosexual, of not being in leather or shaving my hair, but
rather showing how much we are all alike....If people can see the sameness of me and you, then perhaps they won't have
the walls that makes it so that they have to hate us. n132
Cammermeyer's plea constitutes a form of white racial bonding. Quite apart from any intentionality on Cammermeyer's
part, her statement functions to convince white heterosexual people that white gay and lesbian people are just like white
heterosexual people. To appreciate this point, one has to unpack the "we" and the "everybody else" in Cammermeyer's
claim. It is clear that Cammermeyer's "we" is not intended to include all gay and lesbian people. Indeed, Cammermeyer

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explicitly distances herself from the leather-wearing and hair-shaving gays and lesbians. n133 She wants to present "the
normality of being homosexual." n134 Significantly though, Cammermeyer does not explicitly invoke her whiteness.
Nor does she explicitly distance herself from gays and lesbians who are not white. How, then, does her statement
function as white racial bonding? To answer this question, the "we" in Cammermeyer's claim must be considered in
conjunction with the "everybody else."
Cammermeyer's statement could be interpreted to mean each of the following:
Claim 1: All gays and lesbians are like all Americans,
Claim 2: All gays and lesbians are like all heterosexuals,
Claim 3: White gays and lesbians are like all Americans,
Claim 4: White gays and lesbians are like all heterosexuals, and
Claim 5: Normal white gays and lesbians are like normal white heterosexuals.
It is unlikely that Cammermeyer is advancing any of the first four claims. As previously suggested, Cammermeyer
is not speaking for or claiming a shared [*1502] identity with all gays and lesbians. She is interested in representing
and identifying with normality. Her investment in normality suggests as well that she is not speaking to all Americans,
which presumably would include all gays and lesbians, or even to all heterosexuals, which presumably would include
countercultural, nonmainstream heterosexuals. Her political audience is "normal," or mainstream, Americans.
The question, then, is whether Cammermeyer is advancing the fifth claim. That is to say, whether she is speaking
for normal white gays and lesbians and to normal white heterosexuals. The answer, I believe, is yes. n135 Decoded,
Cammermeyer's claim that "we [gays and lesbians] are just like every body else" becomes, notwithstanding our
homosexuality, we are still white - virtually normal. n136 But for our sexuality, we would be the same as you. n137 The
comparison [*1503] here is really between white gays and lesbians and white heterosexuals. It is intraracial.
Cammermeyer is not speaking for or to black people; black people are not considered to be "just like everybody else."
To be black is to be different - especially with reference to white people. In other words, blackness and whiteness are
oppositional racial signifiers. n138 White is what black is not (and can never be) and black is what white is not (and can
never be). Given the significatory relationship between black and white identities, the political incentive for
Cammermeyer to speak to black heterosexuals is rather weak. The social meaning of blackness suggests that black
people exist outside of the "everybody else" in Cammermeyer's claim.
Nor is there a strong incentive for Cammermeyer to speak for black gay and lesbians. The "we gay people are just
like everybody else" argument has considerably less force vis-a-vis the white heterosexual community if it is racially
rearticulated as "we Black gay people are just like everybody else." Unlike white gays and lesbians, black gay people,
because they are black and gay, can never be "but for" gay people. Unwittingly or not, Cammermeyer's claim exploits
the political normality and representativeness of whiteness.
3. The Implications of the Critique
My critique of the gay activists' employment of race/sexual orientation analogies is not intended to suggest that
comparing race to sexual orientation is always inappropriate. n139 I am not advancing a categorical argument here - that
"in the case of homosexuals in the military, the racial metaphor should [*1504] not be utilized." n140 However, the
"sameness rhetoric signals a...choice to ignore a whole series of differences for strategic reasons." n141 Put differently,
we decide, oftentimes for pragmatic reasons, what to make similar and what to make dissimilar. We decide why, when,
and how to analogize. n142 The why for gay rights proponents was the legitimation of a sexual identity
antidiscrimination norm. The when included the public debates about the "Don't Ask, Don't Tell" policy. n143 The how
was to invoke historical racial discrimination against blacks in the military. Lost in the gay rights activists' deployment

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47 UCLA L. Rev. 1467, *1504

of the analogies is the reality that white gays and lesbians are raced and that black gays and lesbians exist. Race/sexual
orientation analogies should not be employed without explicitly grappling with their intersectional realities. n144
Of course, white gay rights proponents know that gays and lesbians have different racial identities. Of course, they
know that some gays and lesbians are white, others are black, and still others are neither. Yet, their political responses to
"Don't Ask, Don't Tell" do not address the intersection of race and [*1505] sexual orientation. n145 On the contrary,
gay rights advocates articulated "blacks" on the one hand, and "gays" and "lesbians" on the other, as unmodified identity
categories. That is to say, they essentialized race and sexuality, obscuring white racial advantage and black sexual
identity disadvantage. n146
III. Representative Gay Men (Where Was Perry Watkins?)
Thus far, I have argued that gay activists' employment of race/sexual orientation analogies deracialized aspects of
sexual identity and desexualized aspects of racial identity. Black identity was essentialized as heterosexual and gay
identity was essentialized as white. Racializing gay identity and sexuating black identity would have compelled the gay
rights advocates to recognize not only black community identity differences (for example, the differences between
heterosexual blacks and lesbian and gay blacks) but also gay community identity differences (for example, the
differences between gay and lesbian blacks and gay and lesbian whites). This, in turn, would have required them to
address the extent to which their own civil rights advocacy reflected racial hierarchy that privileged the identity position
or victim status of white gay men and, to a lesser extent, white lesbians. n147
The racial hierarchy that gay rights advocacy produced was not just discursive, it was material as well. Gay rights
activists selected specific individuals n148 [*1506] to function as representatives for gay and lesbian victimization. The
experiences of these individuals - and their complete identities - were deployed to give content to, or put a face on, the
social, economic, and psychological costs of military discrimination for lesbian and gay people. The hope was for this
strategy to convey that real people - innocent, decent, hardworking people - people who were "just like everybody else,"
were being harmed by military homophobia.
The real people gay rights proponents used to advance this story were themselves overwhelmingly white. More
than that, they were "but for" gay people - people who, but for their sexual orientation, were perfectly mainstream. n149
These icons of gay victimization were represented, in fact marketed, as "All American Kids" - the children next door.
The images of gay identity that the gay activists presented to the American public were respectable and white.
This white representation of gay and lesbian victimization was problematic given the availability of nonwhite gays
and lesbians. Particularly noteworthy here is that while Perry Watkins, a black army sergeant, established animportant
milestone when he became the first openly gay serviceman to challenge successfully the military's antigay policy, n150
gay civil rights proponents did not, according to Watkins, solicit his advice or ask him to participate in their efforts. n151
Nor did Watkins's story n152 feature prominently in the pro-gay rights discourse about military discrimination. The
representative gay men [*1507] were white, and most of the attention focused on Keith Meinhold, n153 a navy petty
officer, and Joseph Steffan, n154 a former midshipsman who was expelled from the Naval Academy a few weeks before
graduation. n155
Watkins's participation in military life prior to the gays in the military debates deserves further elaboration. His
visible presence as an openly gay black man in a heterosexist military culture makes his invisibility in the gay rights
discourse all the more curious. n156
[*1508]
A. Perry Watkins: Invisibly Out
Watkins was nineteen years old when he was drafted into the military. n157 He was drafted for three years despite his

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47 UCLA L. Rev. 1467, *1508

"yes" to the question on the enlistment form regarding homosexual tendencies, and notwithstanding the military's
express policy of excluding and expelling homosexuals. n158 After a year of military service, Watkins was subjected to
a criminal investigation of his sexual activities. Watkins again acknowledged his homosexuality in an affidavit. n159
Specifically, Watkins indicated that "he had been a homosexual from the age of thirteen and that, since his enlistment,
he had engaged in sodomy with two other servicemen." n160 Apparently, Watkins's affidavit was not adequate evidence
of his sexual orientation. Incredibly, the army ended the investigation due to "insufficient evidence." n161
Watkins's performances in drag - at recreational centers, social clubs, and other official and unofficial military
gatherings n162 - would also have raised questions about his sexuality. The military often specifically requested these
performances. n163 And they were always extremely well attended. Given the tendency to conflate sex, gender, and
sexual orientation, n164 Watkins's drag performances would have created, at the very least, a question mark about
whether Watkins was a "real" military man - that is to say, a heterosexual. n165
[*1509]
[SEE FIGURE IN ORGINAL]
Figure 2: Watkins as Simone
Subsequent to his initial enlistment and despite the military's awareness of his sexual orientation, n166 Watkins was
enlisted in the military three additional times: 1971, 1974, and 1979. n167 Not until 1982 did the army discharge
Watkins for the very "misconduct" it had previously chosen to ignore, tolerate, and even defend. n168 Watkins
challenged his discharge and ultimately won. n169
[*1510] The fact that Watkins was gay and out was insufficient to render him a gay rights icon. According to Tom
Stoddard, a white gay lawyer who directed the Campaign for Military Service, n170 "there was a public relations
problem with Perry [Watkins]." n171 The question is whether this public relations problem was a function of Watkins's
race or his countercultural image - more specifically, his drag identity and the fact that he wore a nose ring. Certainly
Stoddard was concerned about the latter. n172 Given this concern, one reasonably might take the position that, but for
Watkins's nose ring, his story would have more meaningfully figured into the gay rights discourse about military
discrimination. That is to say, Watkins's invisibility in this discourse was not a function of his race.
I am not persuaded by this claim. To be sure, Watkins's counter cultural image positioned him outside of the "gay
and lesbian mainstream." Yet, this aspect of his identity was, to employ the parlance of the politics of respectability,
fixable. In other words, if gay rights proponents were otherwise invested in telling Watkins's story, they could have
reconstructed his public identity to make him more palatable. Concretely, they could have removed the nose ring and
dressed him up in a suit. Significantly, I am not suggesting that the employment of this strategy would have been
legitimate. And it is quite clearly superficial. Rather, my point is that while Watkins's race and his nose ring (and
certainly both together) diminished the likelihood that gay rights activists would invoke his story and his identity to
challenge the "Don't Ask, Don't Tell" policy, there was little to be done about Watkins's race. Watkins's nose ring, but
not his race, could be removed. The images in Figure 3 illustrate just that: Watkins in public - "respectably" - without
his nose ring. n173
[*1511]
[SEE FIGURE IN ORGINAL]
Figure 3: "Respectable" Watkins Without Nose Ring
There are at least three additional reasons to question the claim that Watkins's nose ring, or his countercultural image
apart from his race, best explains the absence of his story from gay rights challenges to "Don't Ask, Don't Tell." The
first relates to the absence of other black gay bodies during this debate. The racial representation problem here is not

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just that Perry Watkins's story was marginalized but also that the stories gay rights proponents told about military
discrimination featured white people. For example, notwithstanding that black lesbians are discharged from the Marine
Corps at a significantly higher rate than white males, n174 gay rights proponents did not [*1512] present them as
victims of military discrimination, let alone as icons. Indeed, the story of black lesbians in the military remains to be
told. n175
There is a second reason to think that race helps to explain the lack of attention gay rights proponents paid to
Watkins's experiences in the military: the racial link between the discursive construction and the material representation
of gay identity. Recall that the pro-gay rights arguments against military homophobia reflected a white conception of
gay identity. This discursive rendering of gay as white required a material representation, a physical embodiment, of
gay as white. Had gay rights proponents invoked Watkins's identity, they would have had to tell a more complicated
story about the relationship between race and racism on the one hand and sexual orientation and homophobia on the
other. They could not so easily have dissagregated black from gay. They could not so easily have claimed that "blacks
are like gays." n176 Closeting Watkins's identity provided gay rights activists with the material space to present, and the
discursive space to articulate, gay as white.
A final way to employ race to account for Watkins's invisibility in the gay rights challenges to "Don't Ask, Don't
Tell" is to focus on Watkins's explanation for this invisibility. According to Watkins, gay rights activists marginalized
his story because they perceived that he would be racially unpalatable to mainstream Americans. As previously
mentioned, Margarethe Cammermeyer, a white woman and a member of the National Guard, n177 came out as a lesbian
during the gays in the military debates and became, according to Watkins, a gay rights "poster child[]" for
demonstrating military injustice. n178 Commenting [*1513] on how Cammermeyer was received by the gay
community and employed as a gay icon, Watkins remarked ""we'll go with a [white] woman who lied for twenty-six
years before we go with' a black man who had to live the struggle nearly every day of his life." n179 For Watkins, race
helped to explain the lack of attention the gay rights proponents paid to him and to his story.
Given the foregoing racial critique, one reasonably might ask, what, vis-a-vis Watkins, should the gay rights
proponents have done differently? At the very least, his story should have been featured more prominently in their
public n180 discourse about "Don't Ask, Don't Tell." To the extent that Watkins's story had been central, rather than
peripheral, to the gay rights advocacy, gay rights proponents could more easily and legitimately have drawn upon the
rhetoric and symbols of the civil rights movement. However, gay rights proponents could not credibly have made the
claim that gay rights are black rights because, among other reasons, they ignored black gay victims of military
homophobia. The experiences of black gay and lesbian service persons were closeted, even though some of them, like
Watkins, were out of the closet. The most public of the casualties of the military's heterosexism were white. n181
[*1514]
B. Representational Gay Politics: When White Is "In" and Black Is "Out"

"How could they have selected that radical woman," he asked, "who's practically a nigger?" n182
An argument can be made that the gay activists' choice of Meinhold over Watkins relates to the representational
capacity of whiteness. n183 The notion would be that white gay people, notwithstanding (or precisely because of) their
whiteness, can represent the experiences of all gays and lesbians. n184 Given the normalization and valuation of
whiteness in our society, n185 certainly this argument is credible. Yet, it might overstate the extent to which race
explains why Meinhold and Cammermeyer were employed as gay icons, and Watkins was not. After all, the Watkins
litigation preceded the "Don't, Ask, Don't Tell" controversy by several years. n186 One might reasonably claim, then,
that by the time the gay rights community was politically gearing up to challenge the military's treatment of gays and
lesbians, Watkins's story was no longer ripe; it had lost its cultural and political currency.

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This ostensibly race-neutral explanation has some explanatory value. However, the determination as to whether a
particular story has political currency is itself a race-based decision, even taking account of the passage of time. To
better appreciate this point, one might ask the following "race-switching" question: Would Watkins's story have played
a more important role in gay civil rights efforts against the "Don't Ask, Don't Tell" policy if [*1515] Watkins had been
white? My sense is that it would have, but there is no real way to verify that claim. n187
Nor do concerns about race disappear when the decisions to employ Cammermeyer and Meinhold as symbols of
gay victimization are articulated as strategic choices. The perceived political efficacy of these decisions relates to the
racial context in which they are being made. Undoubtedly, it was easier for the gay rights proponents to sell white gay
people to mainstream America - as well as to the gay and lesbian community - as civil rights icons than it would have
been for them to sell a black gay man (with or without a nose ring).
And there is real reason to believe that it was precisely this sort of race-based pragmatism - or representational
politics - that informed the gay rights challenges to "Don't Ask, Don't Tell." Gay rights proponents employed the media
to create a countergay spectacle n188 to the more "outrageous," n189 politically "radical," n190 and sexually "deviant"
n191 images of gay and lesbian people. The strategy was to present a spectacle of gay respectability. n192 Consider, for
example, how Steffan, who was expelled from the Naval Academy a few weeks before graduation, was positively and
respectably spectacularized for American social and political consumption:

CBS Nightwatch, or it could be 20/20, Nightline, Donahue, or the Today Show. The host is interviewing Joseph
Steffan....Raised in the Midwest, Catholic, a choir boy in his local church. Steffan was the kid next door. Clean-cut, an
excellent student, exceptional in track, he took as [*1516] his date for the senior prom the high school's homecoming
queen. From his small town in Minnesota, Joe Steffan entered Annapolis. At the Academy he was ranked in the top ten
in his class, became battalion commander his senior year, and received the unique honor of twice singing, solo, the
national anthem at the Army-Navy game.
The TV monitor shifts to a film of Joe Steffan, standing on a platform as the Army-Navy game is about to begin,
bearing erect, singing the anthem against the red, white, and blue backdrop of the American flag waving in the stadium
breeze. The television studio camera again trains its lens on Joe Steffan's face, his sincere gaze, his serious
eyes....Joseph Steffan...is now "out" to the USA. n193
Significantly, it is not just Steffan who is "out" here; for, in this context, Steffan, like Meinhold, functions as a
representative gay man. He is respectable. n194 He is accomplished. He is an athlete. He is American. He is white. He is
the kid next door. n195 And n196 he is also gay.
According to Alexander Robinson, an American Civil Liberties Union lobbyist, the gay rights strategy was
intended to do more than construct gay and lesbian military personnel as "average American kids." The aim was to
present such individuals as "well-above-average patriotic citizens, all of them, red, white, and blue, [with] extraordinary
military records, willing to die for their country." n197 Without a doubt, the gay rights proponents were engaged in a
media campaign. n198 They wanted to put a face on gay victimization. That, of [*1517] course, is precisely what they
did. The problem, however, is that their facial representation, like the discursive rendering, of gay identity was white.
[SEE FIGURE IN ORGINAL]
Figure 4: Meinhold
Conclusion: ManagingIdentity
The starting point for this Article was the observation that how we conceptualize identity informs how we perform civil

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47 UCLA L. Rev. 1467, *1517

rights activism. For example, if black identity is conceptualized as male and heterosexual, or if male heterosexuality
operates as a default subject position, civil rights efforts ostensibly on the behalf of the entire black community will
privilege the victim status of black heterosexual men. n199 Similarly, if homosexuality is conceptualized [*1518] as
white and male, or if white homosexuality operates as a default subject position, white gay male experiences will
overdetermine the substance of civil rights efforts ostensibly on behalf of the entire gay community. Thus, civil rights
proponents need to think carefully about not only how they conceptualize identity but also, correlatively, about how
they define identity-based communities. n200 More specifically, civil rights proponents need to account for and give
content to identity multiplicity.
Yet, there are barriers to taking identity multiplicity seriously, not the least of which is current antidiscrimination
law. Plaintiffs today have a hard time bringing compound discrimination claims - claims based on more than one aspect
of a person's identity, for example, the fact that a person is black and female and lesbian. For one thing, certain identity
categories (like sexual orientation) are unprotected under antidiscrimination law. n201 For another, even to the extent
that courts recognize compound discrimination, they employ a narrow framework to adjudicate the claim. Consider, for
example, the sex plus framework. Under this framework, a plaintiff is permitted to assert that she was discriminated
against based on her sex plus only one other protected identity category. n202 To the extent that compound
discrimination claims are not cognizable, are restricted, or are difficult to establish, there is no strong incentive for
lawyers bringing civil rights actions to interpret the facts of a particular discrimination case as arising - coconstitutively
n203 - from more than one identity category.
But not all civil rights engagements are court centered. Indeed, many of our most controversial contestations over
equality take the form of public [*1519] discourse - for example, press conferences, rallies, or marches. Whenever this
is the case, there is an opportunity for civil rights proponents to educate the public about identity multiplicity and its
relevance to civil rights advocacy. In this sense, black antiracist and pro-gay rights contributions to the debates about
"Don't Ask, Don't Tell" reflected a failure on the part of both civil rights communities to complicate public
conversations about identity and equality.
Complicating black identity does not, of course, require that in every context blackness be articulated with gender
and sexual orientation specificity. Sometimes it is meaningful and politically useful to speak of the black community as
such without further particularity, even if the term "the black community" always already presumes too much. n204 Nor
does the complication of gay identity require, in every context, that homosexuality be articulated with gender and racial
specificity. Sometimes it is meaningful and politically useful to speak of the gay community as such without further
particularity, even if the term the "gay community" always already presumes too much. What I am critiquing, then, is
the discursive rendering of identity and community - the mobilization of terms like "black" and "gay" and "black
community" and "gay community" - politically to authenticate, n205 and thus privilege, certain identities and to
inauthenticate, and thus marginalize, others. In the context of the "Don't Ask, Don't Tell" controversy, the politics of
authenticity operated to exclude the identities and thus experiences of black gays and lesbians from black antiracist and
gay rights agendas. Consequently, throughout the debates about "Don't Ask, Don't Tell," black gays and lesbians were
invisibly out. n206

Legal Topics:
For related research and practice materials, see the following legal topics:
Education LawFaculty & StaffMisconduct & PerformanceSexual MisconductSexual PreferencesLabor & Employment
LawDiscriminationGender & Sex DiscriminationCoverage & DefinitionsSexual Orientation
FOOTNOTES:

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47 UCLA L. Rev. 1467, *1519

n1. In 1993, President Bill J. Clinton pledged to lift the ban on gays and lesbians serving in the military. What followed instead was a
political contest between the President and Congress, with Clinton settling on a compromise: the "Don't Ask, Don't Tell" policy. The policy
was originally articulated in a U.S. Secretary of Defense memorandum dated July 19, 1993, entitled "Policy on Homosexual Conduct in the
Armed Forces" and subsequently became the National Defense Authorization Act for fiscal year 1994, Pub. L. No. 103-160, 571, 107 Stat.
1547, 1670 (1994) (codified at 10 U.S.C. 654 (1994)). See William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 173 &
429 n.1 (1999). The implementing regulations are found in the Department of Defense Directive Nos. 1332.14.H (separation of enlisted
personnel), 1332.30.H (separation of officers), and 1304.26 (enlistment). See id. For a detailed history of the passage of the "Don't Ask,
Don't Tell" policy, see Janet E. Halley, Don't: A Reader's Guide to the Military's Anti-Gay Policy 1926 (1999).

n2. See William N. Eskridge, Jr., Race and Sexual Orientation in the Military: Ending the Apartheid of the Closet, 2 Reconstruction 52, 53
(1993) (observing that General Colin Powell "rejects any comparison of the military's current exclusion of lesbians, gay men, and bisexuals
to its historical segregation of African Americans").

n3. See William N. Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 82 Iowa L. Rev.
1007, 1011 (1997); see also Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity,
36 UCLA L. Rev. 915 (1989).

n4. I do not mean to suggest that all black antiracism and all gay and lesbian civil rights advocacy reflect this essentialism.

n5. See generally Richard Delgado, Rodrigo's Sixth Chronicle: Intersections, Essences, and the Dilemma of Social Reform, 68 N.Y.U. L.
Rev. 639 (1993); Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807
(1993); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990); Randall L. Kennedy, Racial
Critiques of Legal Academia, 102 Harv. L. Rev. 1745 (1989); Joan C. Williams, Dissolving the Sameness/Difference Debate: A
Post-Modern Path Beyond Essentialism in Feminist and Critical Race Theory, 1991 Duke L.J. 296.

n6. Much of critical race theory focuses on the specific ways in which law contributes to or fails to ameliorate racial subordination. See,
e.g., Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101
Harv. L. Rev. 1331 (1988) [hereinafter Crenshaw, Race, Reform]; Alan David Freeman, Legitimizing Racial Discrimination Through
Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1449 (1978); Ian F. Haney Lopez, The Social
Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. Rev. 1 (1994). As a result of this
literature, we have a better understanding of the legal ways in which racial power is produced - how law structures the social, economic, and
political relationships between people of color on the one hand and white people on the other. However, critical race theory has not paid
much attention to intraracial or intraminority dynamics - especially the intraracial dynamics surrounding issues of sexuality. For discussions
about gender, see Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (1991);
Kimberle Williams Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine:
Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 [hereinafter Crenshaw, Demarginalizing]; and Isabelle R. Gunning,
Stories from Home: Tales from the Intersection of Race, Gender, and Sexual Orientation, 5 S. Cal. Rev. L. & Women's Stud. 143 (1995).
For discussions about class, see Marion Crain, Between Feminism and Unionism: Working Class Women, Sex Equality, and Labor Speech,
82 Geo. L.J. 1903, 1924-31 (1994); Eric Heinze, Gay and Poor, 38 How. L.J. 433 (1995); and Ruthann Robson, To Market, to Market:
Considering Class in the Context of Lesbian Legal Theories and Reforms, 5 S. Cal. Rev. L. & Women's Stud. 173 (1995). For discussions
about sexuality, see Peter Kwan, Jeffrey Dahmer and the Cosynthesis of Categories, 48 Hastings L.J. 1257 (1997); Jeffery C. Mingo, More

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47 UCLA L. Rev. 1467, *1519

Colors than the Rainbow: Gay Men of Color Speak About Their Identities and Legal Choices, 8 Law & Sexuality 561 (1998); and Francisco
Valdes, Sex and Race in Queer Legal Culture: Rumination on Identities & Inter-Connectivities, 5 S. Cal. Rev. L. & Women's Stud. 25
(1995).

n7. See Randall Kennedy, Race, Crime, and the Law (1997); Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of
Identification, 65 S. Cal. L. Rev. 1769 (1992) (discussing the politics of racial identification within, and questioning the notion of, the black
community); Dwight A. McBride, Can the Queen Speak? Racial Essentialism, Sexuality, and the Problem of Authority, in Black Men on
Race, Gender, and Sexuality: A Critical Reader 253 (Devon W. Carbado ed., 1999).

n8. The employment of the term "privileged victim status" may be problematic. For one thing, there is no privilege in being a victim.
Victim-based experiences are painful and subordinating. See Kwan, supra note 6, at 1257 (describing the painful story of a murder victim
whose pleas were ignored by the police); Ron Simmons, Baraka's Dilemma: To Be or Not to Be, in Black Men on Race, Gender, and
Sexuality: A Critical Reader, supra note 7, at 317 (describing the conflicting and emotional life of a closeted gay man). But minorities have
employed the rhetoric of victim status to give content to their experiences with discrimination. See Kathryn Abrams, Hearing the Call of
Stories, 79 Cal. L. Rev. 971, 981 (1991); Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. Chi. L. Rev. 361 (1996);
Jane B. Baron, Resistance to Stories, 67 S. Cal. L. Rev. 255, 267-69 (1994); Richard Delgado, Storytelling for Oppositionists and Others: A
Plea for Narrative, 87 Mich. L. Rev. 2411, 2412-14, 2437-41 (1989); William N. Eskridge, Jr., Gaylegal Narratives, 46 Stan. L. Rev. 607,
607-08, 611-21 (1994); Marc A. Fajer, Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal
Scholarship, 82 Geo. L.J. 1845, 1845-49 (1994); Alex M. Johnson, Jr., Defending the Use of Narrative and Giving Content to the Voice of
Color: Rejecting the Imposition of Process Theory in Legal Scholarship, 79 Iowa L. Rev. 803, 809, 851-52 (1994); Kim Lane Scheppele,
Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2075, 2097-98 (1989).

n9. For example, does a person undermine her membership in the black community and her status as a black person by asserting and
claiming a lesbian identity?

n10. See generally Devon W. Carbado, The Construction of O.J. Simpson as a Racial Victim, in Black Men on Race, Gender, and
Sexuality: A Critical Reader, supra note 7, at 159.

n11. Increasingly, people who write about identity are recognizing that we are more than our identity label allows us to be. See generally
Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. Rev. 263 (1995).

n12. Consider, for example, the problem of AIDS in the black community. There are two interrelated explanations for the failure of certain
civil rights segments of the black community to engage in AIDS activism: (1) the perception that blacks are (or should be) heterosexual, and
(2) the notion that AIDS is a gay (and therefore a white) disease. For a discussion of the relationship between black homophobia and black
indifference to AIDS, see Cathy J. Cohen, Contested Membership: Black Gay Identities and the Politics of AIDS, in Queer
Theory/Sociology 362, 365 (Steven Seidman ed., 1996); Harlon Dalton, AIDS in Blackface, in Black Men on Race, Gender, and Sexuality:
A Critical Reader, supra note 7, at 244; Darren Lenard Hutchinson, Ignoring the Sexualization of Race: Heteronormativity, Critical Race

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47 UCLA L. Rev. 1467, *1519

Theory and Anti-Racist Politics, 47 Buff. L. Rev. 1, 56-57 (1999); Paula C. Johnson, Silence Equals Death: The Response to AIDS Within
Communities of Color, 1992 U. Ill. L. Rev. 1075, 1079; James Monroe Smith, When Knowing the Law Is Not Enough: Confronting Denial
and Considering Sociocultural Issues Affecting HIV Positive People, 17 Hamline J. Pub. L. & Pol'y 1, 13-14 (1995); and Sheryl Gay
Stolberg, Epidemic of Silence: Eyes Shut, Black America Is Being Ravaged by AIDS, N.Y. Times, June 29, 1998, at A1.

n13. Many feminists have charged that the gay rights movement reflects sexist ideology and patriarchal practices. See, e.g., Mary C.
Dunlap, The Lesbian and Gay Marriage Debate: A Microcosm of Our Hopes and Troubles in the Nineties, 1 Law & Sexuality 63 (1991);
Angela West, Prosecutorial Activism: Confronting Heterosexism in a Lesbian Battering Case, 15 Harv. Women's L.J. 249 (1992); Claudia
A. Lewis, Note, From This Day Forward: A Feminine Moral Discourse on Homosexual Marriage, 97 Yale L.J. 1783 (1988).

n14. See Watkins v. United States Army, 875 F.2d 699, 701 (1989) (en banc).

n15. One could link black antiracist proponents' resistance to black/gay analogies to two other sets of arguments about homophobia in the
black community: (1) arguments about religion, and (2) arguments about black respectability. With respect to the latter, see Cheryl Clarke,
The Failure to Transform: Homophobia in the Black Community, in Home Girls: A Black Feminist Anthology 197, 199 (Barbara Smith ed.,
1983) (identifying concerns about black sexual respectability - specifically, the desire "to debunk racist mythology which says [black]
sexuality is depraved" - as a partial explanation for homophobia in the black community); Cohen, supra note 12, at 376 (arguing that the
"systematic degradation, stereotyping, and stigmatization of Black Americans has all but dictated that attempts at incorporation, integration,
and assimilation on the part of black people generally include some degree of proving ourselves to be "just as nice as those white folks'");
and Hutchinson, supra note 12, at 105 (suggesting that "even if heteronormativity in anti-racism represents a response to a history of racist
sexual stigmatization and exclusion, anti-racists should balance the "gains' (if any) from this heterosexist response against the problems
caused by essentialism").
With respect to the former, Angela Gilmore writes: "The articulated religious objection to homosexuality is captured by the slogan
"God created Adam and Eve, not Adam and Steve.' The belief that homosexuality is a sin precludes many people in African-American
communities from completely accepting lesbians and gay men." Angela Gilmore, Commentary, They're Just Funny That Way: Lesbians,
Gay Men and African-American Communities as Viewed Through the Privacy Prism, 38 How. L.J. 231, 233 (1994).

n16. Of course, the terms homosexual and heterosexual are problematic. For one thing, many people do not fit neatly into these categories.
See, e.g., Alfred C. Kinsey et al., Sexual Behavior in the Human Male 616-17 (1948) (suggesting that approximately 37 percent of all men
have had some homosexual experience during their adult life); see also Committee on Homosexual Offences and Prostitution (Greenwood
Press, photo. reprint 1976) (1957) (suggesting that sexual orientation is not fixed but exists along a continuum); Tomas Almaguer, Chicano
Men: A Cartography of Homosexual Identity and Behavior, Differences, Summer 1991, at 75 (discussing the extent to which some men
assert heterosexual identity (nonhypocritically) even as they engage in same sex intimacy); Vivienne C. Cass, Homosexual Identity: A
Concept in Need of Definition, in Origins of Sexuality 105 (John P. DeCecco & Michael Shively eds., Harrintong Park Press, Inc. 1985)
(1984) (suggesting that sexuality and sexual orientation are constantly being redefined); Andrew Koppelman, Gaze in the Military: A
Response to Professor Woodruff, 64 UMKC L. Rev. 179, 192 (1995) (arguing that "the idea that the universe of human beings can be neatly
divided into "homosexuals' and "heterosexuals' is fantasy"). The employment of the terms homosexual and heterosexual to signify identities
is problematic for another reason: Homosexuality and heterosexuality, like race and gender, are socially constructed identity categories. See,
e.g., Forms of Desire: Sexual Orientation and the Social Constructivist Controversy (Edward Stein ed., 1990); Janet E. Halley, Reasoning
About Sodomy: Act and Identity After Bowers v. Hardwick, 79 Va. L. Rev. 1721, 1723 (1993) ("I use the terms "homosexuality' and
"homosexual' - and more tendentiously, the terms "heterosexuality' and "heterosexual' - without any implication that they accurately describe
any persons living or dead....These terms describe rhetorical categories that have real, material importance notwithstanding their failure to
provide adequate descriptions of any one of us."). Finally, homosexuality and heterosexuality exist in opposition to each other in a way that
naturalizes the latter and pathologizes the former. See Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 780 (1989)

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47 UCLA L. Rev. 1467, *1519

("Homosexuality is first understood as a central, definitive element of a person's identity only from the viewpoint of its "deviancy.' Indeed,
there is from the outset an imbalance: within its own self-understanding, heterosexuality is merely normality.").

n17. See Frances Cress Welsing, The Politics Behind Black Male Passivity, Effeminization, Bisexuality, and Homosexuality, in The Isis
Papers: The Keys to the Colors 81 (1991) (commenting that homosexuality "was an almost nonexistent behavioral phenomenon amongst
indigenous Blacks in Africa"); Rhonda M. Williams, Living at the Crossroads: Explorations in Race, Nationality, Sexuality, and Gender, in
The House that Race Built 136 (Wahneema Lubiano ed., 1997) (critiquing the work of Nathan and Julia Hare, Haki Madhubuti, Amiri
Baraka, and Frances Cress Welsing); Mark Q. Sawyer, Talking Dirty After Dark: Themes of Sexuality in Black Ideology (unpublished
work-in-progress, on file with author) (discussing the construction of homosexuality in various black ideologies). For a discussion of the
extent to which this claim is undermined by historical and anthropological studies, see Keith Boykin, One More River to Cross: Black and
Gay in America (1996) (discussing the literature challenging the idea that homosexuality was nonexistent in African cultures). See also The
Cultural Construction of Sexuality (Pat Caplan ed., 1987); William N. Eskridge, Jr., A History of Same Sex Marriage, 79 Va. L. Rev. 1419
(1993); Kendall Thomas, "Ain't Nothin' Like the Real Thing": Black Masculinity, Gay Sexuality, and the Jargon of Authenticity, in
Representing Black Men 125-26 (Marcellus Blount & George P. Cunningham eds., 1996).

n18. My critique of the homophobic and/or heteronormative nature of some black antiracist discourse is not intended to suggest that the
black community is more homophobic than the white community or other communities of color. See Hutchinson, supra note 12, at 40 n.140
(citing sources "which counter a popular myth that people of color are more homophobic than whites").

n19. Nathan Hare & Julia Hare, The Endangered Black Family: Coping with Unisexualization and Coming Extinction of the Black Race 65
(1984); see also Frantz Fanon, Black Skin White Masks (Charles Lam Markmann trans., 1967). Commenting on homosexuality, Fanon
writes:

Let me observe at once that I had no opportunity to establish the overt presence of homosexuality in Martinique. This must be viewed as the
result of the absence of the Oedipus complex in the Antilles. The schema of homosexuality is well enough known. We should not overlook,
however, the existence of what are called there "men dressed as women" or "godmothers." Generally, they wear shirts and skirts. But I am
convinced that they lead normal sex lives. They can take a punch like any "he-man" and they are not impervious to the allures of women fish and vegetable merchants. In Europe, on the other hand, I have known several Martinicans who became homosexuals, always passive.
But this was by no means a neurotic homosexuality: For them it was a means to a livelihood, as pimping is for others.
Id. at 180 n.44.

n20. Louis Farrakhan, Back Where We Belong: Selected Speeches 138 (Joseph Eure & Richard Jerome eds., 1989). One could take the
position that the authors I have cited (Nathan and Julia Hare, Louis Farrakhan, and Frantz Fannon) are not truly antiracist; they are simply
homophobic. However, such a position would be at odds with the racial standing each author has within black community politics or the
black intellectual canon.

n21. Alycee J. Lane, Black Bodies/Gay Bodies: The Politics of Race in the Gay/Military Battle, 17 Callaloo 1984 (1994); see Boykin, supra
note 17, at 157-58 (suggesting that antiracist discourse sometimes reflects the idea that homosexuality is something in which most white men

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47 UCLA L. Rev. 1467, *1519

but not black men are trained); Darren Lenard Hutchinson, "Claiming" and "Speaking" Who We Are: Black Gays and Lesbians, Racial
Politics, and the Million Man March, in Black Men on Race, Gender, and Sexuality: A Critical Reader, supra note 7, at 28, 30 (arguing that
people of color often perceive homosexuality to be "a product of "white' culture").

n22. For a general discussion of Bayard Rustin's life and his role in politics, see Jervis Anderson, Bayard Rustin: Troubles I've Seen (1998).

n23. See Gilmore, supra note 15, at 236; Henry Louis Gates, Jr., Blacklash?, New Yorker, May 17, 1993, at 42, 44 (noting that homophobia
within the civil rights movement prevented Rustin "from being named the director of the 1963 march"); Black Like Us: A Century of Queer
African American Literature (Devon W. Carbado et al. eds.) (work-in-progress, on file with author) (discussing how Rustin's sexual
orientation circumscribed the role he could play in the march on Washington).

n24. As a homosexual, Rustin was not respectable. For a general discussion of the negative relationship between homosexuality and black
respectability, see George Chancey, Gay New York, Urban Culture, and the Making of the Gay Male World 1890-1940 (1994).

n25. See generally Hazel V. Carby, Race Men (1998). To appreciate how heterosexuality is implicated in the notion of a race man, consider
James Baldwin's interview on The Dick Cavett Show in which Baldwin made the following comments:

I don't know what most white people in this country feel, but I can only conclude what they feel from the state of their institutions. I don't
know if white Christians hate Negroes or not, but I know that we have a Christian church which is white and a Christian church which is
black. I know, as Malcolm X once put it, "The most segregated hour in American is high noon on Sunday." That says a great deal to me
about a Christian nation. It means that I can't afford to trust most white Christians and certainly cannot trust the Christian church. I don't
know whether the labor union and their bosses really hate me. That doesn't matter. But I know that I am not in their unions. I don't know if
the real estate lobby has anything against black people, but I know that the real estate lobby keeps me in the ghetto. I don't know if the board
of education hates black people, but I know the textbooks they give my children to read and the school that we go to. Now this is the
evidence! You want me to make an act of faith risking myself, my wife, my woman, my sister, my children, on some idealism which you
assure me exists in American which I have never seen.
McBride, supra note 7, at 270-71. As Dwight McBride forcefully argues, the short passage reflects a distinct identity performance in which
Baldwin "assumes the voice of [the] representative race man." Id. at 271. This performance requires him to obscure or mask his
homosexuality. "What emerges [from this obfuscation] is the heterosexual black man risking [himself], [his] wife, [his] woman, [his]
children." Id. In other words, with this performance, Baldwin enacts a standard antiracist script in which black men assume the role of
"protector, progenitor, and defender of the race." Id.

n26. I should be careful to point out that it was not only Rustin's sexuality that rendered him unpalatable to some civil rights leaders, but
also his politics. See generally, Anderson, supra note 22 (situating Rustin's life in the context of his politics). For example, the Reverend
Adam Clayton Powell, Jr. threatened to delegitimize the Southern Christian Leadership Conference (SCLC) in part because of what he
perceived to be Rustin's radicalizing influence on the organization. See id. at 229-31. What is interesting about Powell's threat is the manner
in which he intended to delegitimize SCLC - by outing Rustin. See id.

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47 UCLA L. Rev. 1467, *1519

n27. See Jewelle Gomez, Because Silence Is Costly, in Forty-Three Septembers 71 (1993) (discussing the extent to which Rustin "worked
quietly" in the civil rights movement to avoid controversy about his participation); see also Anderson, supra note 22, at 230-31 (discussing
Rustin's public resignation from SCLC).
In some sense, Baldwin's sexuality also was (and continues to be) contained. That is to say, to some, he is intelligible as a black
antiracist proponent only to the extent that his sexuality is unlocatable. See McBride, supra note 7, at 268-69 (noting that Amiri Baraka
"accounts for Baldwin's homosexuality" by stating that "Jimmy Baldwin was neither in the closet about his homosexuality, nor was he
running around proclaiming homosexuality. I mean, he was what he was.").

n28. Marlon T. Riggs, Black Macho Revisited: Reflections of a SNAP! Queen, in Black Men on Race, Gender, and Sexuality: A Critical
Reader, supra note 7, at 306, 310 (quoting Professor Griff of Public Enemy).

n29. Id. at 310.

n30. Molefi Kete Asante, Afrocentricity: The Theory of Social Change 57 (1980).

n31. See Maulana Karenga, From the Nguzo Saba (The Seven Principles): Their Meaning and Message, in Modern Black Nationalism:
From Marcus Garvey to Louis Farrakhan 276 (William L. Van Deburg ed., 1997) (listing "Umoja" (unity) as the first principle of Kwanzaa:
"to strive for and maintain unity in the family, community, nation and race"); see also E.U. Essien-Udom, Black Nationalism: A Search for
an Identity in America (1962); Raymond L. Hall, Black Separatism in the United States (1978); Eleanor Brown, Black Like Me? "Gangsta"
Culture, Clarence Thomas, and Afrocentric Academies, 75 N.Y.U. L. Rev. 308 (2000).

n32. See Asante, supra note 30, at 57.

n33. Office of Planning & Research, U.S. Dep't of Labor, The Negro Family: The Case for National Action 29 (1965).

n34. " The Tangle of Pathology" is Daniel Patrick Moynihan's title for the chapter on the black family. Moynihan does not employ the term
"The Truly Disadvantaged." I borrow this term from William Jukus Wilson, The Truly Disadvantaged: The Inner City, the Underclass and

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47 UCLA L. Rev. 1467, *1519

Public Policy (1987).

n35. See Mary E. Clark, AIDS Prevention: Legislative Options, 16 Am. J.L. & Med. 107, 128 (1990) (noting that homophobia in the black
community has been a problem in AIDS education); Gilmore, supra note 15; Earl Ofari Hutchinson, My Gay Problem, Your Black Problem,
in Black Men on Race, Gender, and Sexuality: A Critical Reader, supra note 7, at 303.

n36. See Hutchinson, supra note 35, at 303; McBride, supra note 7, at 253.

n37. See McBride, supra note 7; Thomas, supra note 17.

n38. Cornel West, Race Matters 89 (1993). For a discussion of the politics of black masculinity, see Richard Majors & Janet Mancini
Billson, Cool Pose: The Dilemmas of Black Manhood in America (1992).

n39. See Cohen, supra note 12, at 379 (arguing that black homophobia promotes the notion that "to be a true black man is antithetical to
being gay"); Gilmore, supra note 15, at 234 (observing that "gay [black] men are not viewed as "real men' and, therefore, are not viewed as
suitable fathers, husbands, or role models" and that "[black] lesbians...are perceived as being too masculine and therefore not "real women'");
Irene Monroe, Louis Farrakhan's Ministry of Misogyny and Homophobia, in The Farrakhan Factor: African-American Writers on
Leadership, Nationhood, and Minister Louis Farrakhan 279 (Amy Alexander ed., 1998) ("With the shortage of African-American
"heterosexual' men due to street violence and imprisonment, African-American gay men are perceived as race traitors for not upholding their
racial responsibility to be "real black men' just as lesbians are seen as traitors for not upholding their responsibility to produce such men.").

n40. See Audre Lorde, Sister Outsider: Essays and Speeches 121 (1984) ("Black women who once insisted that lesbianism was a white
woman's problem now insist that Black lesbians are a threat to Black nationhood, are consorting with the enemies, are basically un-Black.").
One might take the position that we are always marked by that which makes us different. In a community with members of one race, the
argument might go, the most different thing about Audre Lorde would be her sexual orientation. To the extent that this is the case, we should
not be surprised about Lorde's perception as to salience of her lesbian identity within the black community. The problem with this argument
is that it already presupposes the difference of homosexuality - specifically, that lesbian identity renders a black person different. However,
lesbian identity is not inevitably or necessarily different. The difference of sexual identity is socially constructed. And it is the social
construction of this difference within black community politics that Lorde is contesting.

n41. Lorde wrote:

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47 UCLA L. Rev. 1467, *1519

As a black feminist comfortable with many different ingredients of my identity and a woman committed to racial and sexual freedom from
oppression, I find I am constantly being encouraged to pluck out some aspects of myself and present this as the meaningful whole, eclipsing
or denying the other parts of self. But this is a destructive and fragmenting way to live.
Id. at 120.

n42. Audre Lorde, I Am Your Sister: Black Women Organizing Across Sexualities 5 (1985) (commenting that "I have heard it said that
Black Lesbians will mean the death of the race").

n43. See Eskridge, supra note 2, at 55 ("Many African Americans fear that gay rights is a diversion of the civil rights agenda away from
their own concerns, or worse, is an appropriation of the black civil rights struggle to benefit a group (primarily well-to-do whites) who are
relatively privileged in society.").

n44. For a discussion of the controversy in the black community regarding gay rights proponents' employment of race/sexual orientation
analogies, see id. at 55; David W. Dunlaps, Leaders of Gay Blacks Emphasize Local Issues, N.Y. Times, Feb. 20, 1995, at A13; Gates, supra
note 23, at 42-44; and Lena Williams, Blacks Reject Gay Rights Fight as Equal to Theirs, N.Y. Times, June 28, 1993, at A1. It is important
to point out that several black civil rights leaders have been quite vocal in their support of gay civil rights. The Congressional Black Caucus,
for example, has consistently supported gay rights legislation. See Boykin, supra note 17, at 189-91. Moreover, the Reverend Jesse Jackson
and Benjamin Chavis, former Executive Director of the National Association for the Advancement of Colored People (NAACP), have both
publicly supported gay rights. See id. at 191-92; id. at 192-94 (noting other black progay public officials).

n45. Professor Margaret Russel refers to arguments that oppose analogizing black civil rights efforts to gay civil rights efforts and racism to
homophobia as ""non-comparability arguments.'" See Margaret M. Russel, Lesbian, Gay and Bisexual Rights and the Civil Rights Agenda, 1
Afr.-Am. L. & Pol'y Rep. 33, 45 (1994). Russel examines noncomparability arguments as they are manifested in Black antiracist discourse,
other "progressive anti-essentializing" discourses, and discourses that "oppose the notion of "gay rights as civil rights.'" Id. at 38-39. As an
example of this last category, she refers to Harvard professor Harvey Mansfield's testimony in support of Colorado's Amendment 2:
"Disapproval of gays is not like racial or gender discrimination; there is nothing wrong with being black or being a woman, but it is perfectly
reasonable to think there is something wrong with being gay." Id. at 52.

n46. See Garry L. Rolison & Thomas K. Nakayama, Defensive Discourse: Blacks and Gays in the Military, in Gays and Lesbians in the
Military: Issues, Concerns, and Contrasts 121 (Wilbur J. Scott & Sandra Carson Stanley eds., 1994) [hereinafter Gays and Lesbians in the
Military].

n47. John Sibley Butler, Homosexuals and the Military Establishment, Society, Nov.-Dec. 1993, at 13, 15-19.

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47 UCLA L. Rev. 1467, *1519

n48. See id.

n49. Id. at 17.

n50. Butler, supra note 47, at 17.

n51. Jim Crow laws sought to isolate blacks spatially. This spatial segregation was one of the ways in which racial hierarchy was enforced
and white supremacy was legitimized. Jim Crow laws required separate spaces in almost all aspects of daily life, including separate drinking
fountains, toilets, entrances, exits, stairways, and windows. See C. Vann Woodward, The Strange Career of Jim Crow 116-17 (3d ed. 1974).

n52. Butler, supra note 47, at 17.

n53. See id. at 13, 15-19.

n54. See Thomas, supra note 17, at 66.

n55. See Hutchinson, supra note 12, at 1.

n56. See id. This is an argument that Colin Powell made as well: ""Homosexuality is not a benign...characteristic, such as skin color or
whether you're Hispanic or Oriental....It goes to one of the most fundamental aspects of human behavior.'" John Lancaster, Why the Military
Supports the Ban on Gays, Wash. Post, Jan. 28, 1993, at A8 (quoting General Colin Powell).

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47 UCLA L. Rev. 1467, *1519

n57. The notion of race as static and fixed is problematic. It is now fairly widely accepted that race is a social construction. See Michael
Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s (2d ed. 1994) (discussing how racial meanings
get established in particular historical and social contexts); Crenshaw, Race, Reform, supra note 6, at 1370-74 (discussing the social
construction of blacks in opposition to whites); Jerry Kang, Cyber-Race, 113 Harv. L. Rev. 1131 (2000) (exploring the implications of this
observation for cyberspace); see also Devon W. Carbado & Mitu Gulati, Working Identity, 89 Cornell L. Rev. (forthcoming July 2000)
(arguing that race is a performance); Haney Lopez, supra note 6; Cheryl L. Harris, Whiteness as Property, 106 Harv. L. Rev. 1709 (1993)
(exploring the specific ways in which white identity has been socially constructed as property).

n58. Butler, supra note 47, at 18. While the quote contains some language implicitly suggesting that sexual orientation is not completely
chosen and that race involves some choice, the fundamental point Butler wants to make is that race is far more static and fixed than sexual
orientation.

n59. Id. at 15.

n60. See id.

n61. Id. at 17.

n62. In other words, race is biological and sexual orientation is behavorial; or race is immutable and sexual orientation is not. See, e.g., High
Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076
(Fed. Cir. 1989). It is certainly not clear to me why immutability has proven to be so relevant to the question of whether sexual orientation
discrimination ought to be permissible.

Suppose, for example, that a drug were invented that would enable human beings to change their race. In other words, blacks could take a
safe, inexpensive pill and become Caucasian. Would anyone argue seriously that civil rights laws should not cover blacks who declined the
drug and thereby chose to remain black?
Richard F. Duncan, Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom, 69 Notre Dame
L. Rev. 393, 402 (1994); see also Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991), rev'd, 976 F.2d 623 (10th Cir. 1992)
("Discrimination on the basis of race would not become permissible merely because a future scientific advance permits the change in skin
pigmentation."); Dennis Prager, Homosexuality, the Bible, and Us - A Jewish Perspective, Pub. Interest, Summer 1993, at 73 (observing that
whether "homosexuals choose homosexuality is entirely unrelated to the question of whether society ought to regard it as an equally valid
way of life" (emphasis omitted)). This, of course, was the line of argument that military officials articulated very early in the debates about
"Don't Ask, Don't Tell." See David Ari Bianco, Echoes of Prejudice: The Debates over Race and Sexuality in the Armed Forces, in Gay
Rights, Military Wrongs: Political Perspective on Lesbians and Gays in the Military 47, 48 (Craig A. Rimmerman ed., 1996) [hereinafter
Gay Rights, Military Wrongs]. Despite the courts' assumption that sexual orientation is not immutable, scientists have made "progress" in

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47 UCLA L. Rev. 1467, *1519

identifying agay gene. See J. Michael Bailey & Richard C. Pillard, A Genetic Study of Male Sexual Orientation, 48 Archives Gen.
Psychiatry 1089, 1093 (1991); Dean H. Hamer et al., A Linkage Between DNA Markers on the X Chromosome and Male Sexual
Orientation, 261 Science 321 (1993). But see Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument
from Immutability, 46 Stan. L. Rev. 503 (1994) (reviewing scientific studies).

n63. The notion here is that "one way of living was characteristic of everyone who is [lesbian or] gay." Marc A. Fajer, Can Two Real Men
Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. Miami L. Rev. 511,
532 (1992). However, there are numerous intragroup differences within the gay and lesbian community. See Darren Lenard Hutchinson, Out
Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 Conn. L. Rev. 561, 584 (1997); Kwan, supra
note 6, 1284-85; Mingo, supra note 6, at 564; Valdes, supra note 6, at 35-46.

n64. Butler, supra note 47, at 17.

n65. Importantly, John Sibley Butler's analysis normalizes white heterosexuality as well. His claim that "a white homosexual is just a white
man with a different sexual lifestyle" presupposes that the "white man" in the sentence is heterosexual. It is his heterosexuality that renders
white homosexuality different. In this sense, Butler's presumption of heterosexual identity is not limited to the heterosexuality of blacks. I
focus on Butler's normalization of black heterosexuality and not on his normalization of white heterosexuality, because even though Butler
normalizes white heterosexuality, white homosexuality is unambiguously reflected in his analysis - if only because he is responding to
arguments advanced, for the most part, by white gays and lesbians. In other words, under Butler's analysis, while the normal black and white
person is heterosexual, the normal gay person is white.

n66. See also Harris, supra note 5, at 592 (observing that, "in dominance theory, black women are white women, only more so"). In the
same way, homosexual whites are heterosexual whites, only less.

n67. In an earlier article, I employed the term unmodified antiracism to convey three principal ideas: (1) Too often antiracist proponents
purport to be discussing black people or the Black community as such, when they are really only referring to Black men; (2) Antiracist
discourse often equates black racial freedom with black manhood, suggesting that the fight against racism is really a fight about black male
subordination; and (3) When antiracist proponents explicitly discuss black men and racism, they presume that their discussion reflects an
understanding of black women and racism. See Carbado, supra note 10, at 160. In the context of this Article, I expand the term to critique
antiracist efforts that fail to take account of sexual orientation diversity within the black community.

n68. Butler, supra note 47, at 18.

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47 UCLA L. Rev. 1467, *1519

n69. See, e.g., Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989). In Williamson, an African American gay man
attempted to assert a race-based discrimination claim under Title VII of the Civil Rights Act of 1964. See id. at 70. The court interpreted
Williamson's claim as alleging sexual orientation discrimination and upheld summary judgment in favor of the defendant because
homosexuality is not a protected status under Title VII. See id. For a thoughtful discussion of this case, see Mary Eaton, Homosexual
Unmodified: Speculation on Law's Discourse, Race, and the Construction of Sexual Identity, in Legal Inversions: Lesbians, Gay Men, and
the Politics of Law 46 (Didi Herman & Carl Stychin eds., 1995).

n70. See generally Hutchinson, supra note 12.

n71. For literature on discrimination against gays and lesbians in the military, see generally Eskridge, supra note 1; Halley, supra note 1;
Mary Ann Humphrey, My Country, My Right to Serve (1990); Randy Shilts, Conduct Unbecoming: Lesbians and Gays in the U.S. Military:
Vietnam to the Persian Gulf (1993); and Laurie Weinstein & Francine D'Amico, Lesbian Exclusion, in Gender Camouflage: Women and the
U.S. Military 103 (Francine D'Amico & Laurie Weinstein eds., 1999).

n72. For literature on discrimination against blacks in the military, see generally Martin Binkin et al., Blacks and the Military (1982); Sherie
Mershon & Steven Schlossman, Foxholes and Color Lines: Desegregating the U.S. Armed Forces (1998); Brenda L. Moore, To Serve My
Country, To Serve My Race (1996); Bernard C. Nalty, Strength for the Fight: A History of Black Americans in the Military (1986); and
Warren L. Young, Minorities and the Military (1982).

n73. Not all gays and lesbians were interested in employing the military to pursue the gay and lesbian equality struggle. See Gary L.
Lehring, Constructing the "Other' Soldier: Gay Identity's Military Threat, in Gay Rights, Military Wrongs, supra note 62, at 269, 282.

It is obvious that allowing lesbians and gays in the military would not have been the issue most people in the gay community would have
had at the top of their list of wishes...greater funding and awareness for AIDS, or a federal civil rights law for lesbians, gays, and other
sexual minorities, were issues that could have potentially generated more excitement at the grassroots level.
Id.; see also Barbara Smith, Where's the Revolution?, Nation, July 5, 1993, at 16 (noting that "a radical gay and lesbian movement would of
course be working to dismantle the military completely" and that "thankfully, there were some pockets of dissent at the April march,
expressed in slogans like: "Lift the Ban - Ban the Military' and "Homosexual, Not Homicidal - Fuck the Military'").

n74. Jane S. Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 Harv. C.R.-C.L. L. Rev. 283,
285 (1994).

n75. Id. For a legal history of gay rights litigation, see Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L.
Rev. 1551 (1993).

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47 UCLA L. Rev. 1467, *1519

n76. Id. at 285.

n77. See id. at 286; see also Hutchinson, supra note 12, at 3.

n78. The invocation of the black/gay analogy, in other words, renders black lesbian and gay identities oxymoronic entities. See Eaton, supra
note 69, at 62 (observing that ""Black homosexual' is...an oxymoron in an analogical comparison of blacks and homosexuals").

n79. In one of the leading articles on identity comparisons, Professors Trina Grillo and Stephanie Wildman observe that the employment of
analogies in civil rights discourse can lead to "false understanding." Trina Grillo & Stephanie M. Wildman, Obscuring the Importance of
Race: The Implication of Making Comparisons Between Racism and Sexism (Or Other -isms), 1991 Duke L.J. 397, 401. Focusing their
discussion on the race/gender analogy, Trina Grillo and Stephanie Wildman argue that "comparing sexism to racism perpetuates patterns of
racial domination by marginalizing and obscuring the different roles that race plays in the lives of people of color and of whites." Id. Grillo
and Wildman's argument here, then, is not simply that comparing, for example, "women" and "blacks" obscures the fact that some women
are black; they are also suggesting that the comparison hides the fact that white women are raced and are beneficiaries of white racial
privilege. This is precisely the argument I make with respect to how the race/sexual orientation analogies functioned in the context of
debates about "Don't Ask, Don't Tell" - they obscured not only the fact that black people are gay but also that white gay people are raced.
See also Francine D'Amico, Race-ing and Gendering the Military Closet, in Gay Rights, Military Wrongs, supra note 62, at 3, 4. D'Amico
writes that

students of comparative politics know that we must be very careful about what we seek to compare. We must identify assumptions
underlying our comparisons and the models we measure against, and we must acknowledge the distortions across cultures, communities, and
time created by the degree of abstraction necessary to make generalized comparisons.
Id.

n80. Of course, gays and lesbians have never been effectively excluded from the military. Indeed, "it is by now beyond dispute that the
exclusion policy is, and has always been, a failure....The total exclusion of gays [from the military]...has never existed; it probably never
can." Koppelman, supra note 16, at 191. See generally Allan Berube, Coming Out Under Fire: The History of Gay Men and Women in
World War Two (1990); Shilts, supra note 71; President William J. Clinton, Remarks Announcing the New Policy on Homosexuals, in 1
Pub. Papers: William J. Clinton 1993, at 1109-12 (July 19, 1993) (observing that it is common knowledge that gays have served and do
serve in the military); Eskridge, supra note 2, at 56 ("It is paradoxical for General Powell and other military leaders to defend a policy of
exclusion that is not very successful in keeping the excluded out."). In fact, military studies reveal that "approximately 10 percent of military
service members are exclusively or predominantly homosexual." Nan D. Hunter et al., The Rights of Lesbians and Gay Men: The Basic
ACLU Guide to A Gay Person's Rights 42-43 (3d ed. 1992).

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47 UCLA L. Rev. 1467, *1519

n81. Chairman of the General Board to Secretary of the Navy, Memorandum g.B. #240 Serial #201, Enlistment of Men in Colored Race in
Other than Messman Branch (1941), reprinted in Blacks in the Military: Essential Documents (Bernard C. Nalty & Morris J. MacGregor
eds., 1981). State sanctioned racial discrimination was officially terminated in 1948 when President Harry S. Truman issued Executive Order
9981. See Exec. Order No. 9981, 13 Fed. Reg. 4313 (1948) (ordering that "there shall be equality of treatment and opportunity for all
persons in the armed services without regard to race, color, religion or national origin").

n82. See H.G. Reza, Blacks' Battle in Military Likened to Gays', L.A. Times, June 14, 1993, at A3.

n83. Shilts, supra note 71, at 378-79.

n84. Butler, supra note 47, at 16, 17.

n85. For a sustained analysis of the military necessity arguments military officials employ to justify discrimination against gays and
lesbians, see generally Ronald D. Ray, Gays: In or Out? The U.S. Military & Homosexuals: A Source Book (1993). Military necessity
arguments have been employed to legitimize other forms of governmental discrimination. See, e.g., Korematsu v. United States, 324 U.S.
885 (1945).

n86. See also D'Amico, supra note 79, at 25 (observing that the arguments used to segregate African Americans in the military are similar to
those invoked to challenge gay and lesbian participation in the military); Rolison & Nakayama, supra note 46, at 129-30 (suggesting that,
with respect to black/gay analogies, "the central issue may be less the history and nature of African-Americans and gay Americans with
respect to military inclusion than it is the way in which these groups are discursively responded to by the military in its attempt to exclude
their participation"); William B. Rubenstein, Challenging the Military's Antilesbian and Antigay Policy, 1 Law & Sexuality 239, 241 (1991)
(arguing that the "language" the military employs to justify discrimination against lesbians and gays "is important because it so clearly
parallels the rationale that the military provided for its racial policies before 1948"); Gary J. Bass, Their Words: Discrimination, 1948 and
1993, New Republic, Feb. 22, 1993, at 15 ("The arguments - even the words - used for the gay ban in 1993 are almost verbatim those used in
1948.").

n87. In making black/gay analogies, some gay rights proponents have, to varying degrees, recognized the fact that black/gay analogies can
obscure important historical information. See Rolison & Nakayama, supra note 46, at 130 (arguing that comparing the discourse the military
employs to discriminate against blacks with the discourse the military employs to discriminate against gays and lesbians "is not to suggest
that there are not differences...between the two groups").

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47 UCLA L. Rev. 1467, *1519

n88. The gay rights discourse about "Don't Ask, Don't Tell" excluded not only black gays and lesbians, but other gays and lesbians of color
as well. For racial critiques that nonblack gays and lesbians of color have advanced against gay and lesbian advocacy, see Walter L.
Williams, The Spirit and the Flesh: Sexual Diversity in American Indian Culture (1986); Shella M. Aguilar, Los Angeles Asian Pacific
Islander Sisters (LAAPIS), 5 S. Cal. Rev. L. & Women's Stud. 75 (1995) (discussing activities of an Asian lesbian organization); Elvia R.
Arriola, Faeries, Marimachas, Queens and Lezzies: The Construction of Homosexuality Before the 1969 Stonewall Riots, 5 Colum. J.
Gender & L. 33 (1995) (discussing Latino/a gays and lesbians); Ruth Colker, Bi: Race, Sexual Orientation, Gender, and Disability, 56 Ohio
St. L.J. 1 (1995) (discussing intersectionalities within the gay and lesbian community); Eric Heinze, Gay and Poor, 38 How. L.J. 433 (1995)
(discussing underclass gays and lesbians); Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the
Law, Theory, and Politics of "Sexual Orientation," 48 Hastings L.J. 1293 (1997) (calling for multicultural recognition within the traditional
gay rights discourse).

n89. Butler, supra note 47, at 16 (emphasis added).

n90. Gays have been vilified, in part, because of a perceived practice of "cruising" - driving around a particular area to look for sexual
partners. See William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 Fla. St. U. L. Rev. 703, 718-19
(1997); see also Christopher N. Kendall, Gay Male Pornography After Little Sisters Book and Art Emporium: A Call for Gay Male
Cooperation in the Struggle for Sex Equality, 12 Wis. Women's L.J. 21, 54 (1997) (describing cruising as a "sexual game"). In the military
context, "it would seem that straight male soldiers and sailors are haunted by the spectre of the "gay look.'" Kendall Thomas, Shower/Closet,
20 Assemblage 80, 80 (1993).

n91. The argument is often articulated this way: "Just as most men and women dislike being stripped of all privacy before the opposite sex,
so most heterosexual men and women dislike being exposed to homosexuals of their own sex." Charles Moskos, From Citizens' Army to
Social Laboratory, Wilson Q., Winter 1993, at 83, 94. Colin Powell, for example, argued that gay and lesbian enlistment in the military is
problematic because soldiers "share the most private facilities together, the bedroom, the barracks, latrines, and showers." Thomanson v.
Perry, 80 F.3d 915, 940 (4th Cir. 1996) (citation omitted); Paul Siegel, Second Hand Prejudice, Racial Analogies and Shared Showers: Why
"Don't Ask, Don't Tell" Won't Sell, 9 Notre Dame J.L. Ethics & Pub. Pol'y 185, 188 (observing that one of the proban arguments is the
"communal showers" argument, the notion that just as we would not force male and female soldiers to shower together and to use toilets
during the same hours, so too would it be an invasion of the privacy of heterosexual soldiers to have them share such facilities with lesbians
and gay males); see also Tom Bethell, A Good Army Doesn't Have Room for Gays, L.A. Times, Nov. 19, 1992, at B7 (quoting one soldier
as commenting that "as a rule, soldiers don't like taking showers with the kind of guys who like taking showers with soldiers"); Mike
Williams & Jingle Davis, Gays in Uniform Will Face Resistance, Troops Say, Atlanta J./Atlanta Const., Nov. 13, 1992, at A1 ("We have to
live in close dormitories and take showers with 50 women, and I don't want some woman leering at me.") (quoting Petty Officer Henrietta
Fowler)). Alafair Burke makes a related point: "The public debate surrounding "don't ask, don't tell' makes clear that the public's central
concern is with the reactions of heterosexual soldiers to homosexuals, not with the abilities of homosexuals." Alafair S.R. Burke, A Few
Straight Men: Homosexuals in the Military and Equal Protection, 6 Stan. L. & Pol'y Rev. 109, 114 (1994). Some gay activists employ
heterosexual concerns about the "gay gaze" as a basis for political humor. Carol Magary, for example, has this to say about the heterosexual
paranoia about gay voyeurism:

1. Straight Men are constantly flaunting their heterosexuality, and make gay men feel uncomfortable.
2. Because of fear of being branded gay, straight men refrain from forming truly close relationships with other men. This interferes
with the bonding and loyalty essential to military teamwork.
3. Straight Men are not used to seeing other men naked, so they are not psychologically equipped to shower with other men.
4. Straight Men are militant about converting others to their lifestyle, which includes unwanted pregnancies, disease, and cheap
cologne.
5. Straight Men never get harassed, so they don't have well-developed defense techniques.

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47 UCLA L. Rev. 1467, *1519

Carol Magary, Why Straight Men Should Not Be in the Military, Cruise Mag. 25 (1993).

n92. See generally Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38 UCLA L. Rev. 499 (1991).
See also Judith Hicks Stiehm, Managing the Military's Homosexual Exclusion Policy: Text and Subtext, 46 U. Miami L. Rev. 685, 701
(1992) ("The military wants something more than simply to root out homosexuals. It also wants to eliminate effeminate males from the
ranks, even if they are not homosexuals.").

n93. Richard Mohr, Military Privacy: Blacks, Women, and Gay Men in the Showers 1-2 (unpublished manuscript, on file with author),
quoted in Koppelman, supra note 16, at 191 n.61; see also Steven Zeeland, Barrack Buddies and Soldier Lovers: Dialogues with Gay Young
Men in the U.S. Military 15 (1993) ("How can the American fighting man, aggressive and predatory, be expected to stand naked in the
shower before a man known to penetrate other men - without that macho soldier being made to feel like a woman?"); Barry D. Adam,
Anatomy of a Panic: State Voyeurism, Gender Politics, and the Cult of Americanism, in Gays and Lesbians in the Military 107 (Wilbur J.
Scott & Sandra Carson Stanley eds., 1994) ("Can one avoid the conclusion then that the gays in the military question is not about gays in the
military but about the dynamics and practices of the heterosexist mind?"); Bass, supra note 86, at 15 n.8 ("The male homophobe is almost by
definition hysterical about the mere possibility that he may be seen naked by a gay or bisexual man....This anxiety rises to the level of
hysteria of the homoerotic observations raises questions about the object's own sexuality."); Eskridge, supra note 2, at 54. The lifeblood of a
soldier is masculinity, bravery, and gallantry. See also Shilts, supra note 71, at 730.

As columnist Bruce Fein wrote in a guest column in USA Today, "the battlefield soldier is inspired to risk all by fighting with comrades
whose attributes conform to his view of manhood....And it is inarguable that the majority of a fighting force would be psychologically and
emotionally deflated by the close presence of homosexuals who evoke effeminate or repugnant but not manly visions."
Id.

n94. See Shilts, supra note 71, at 5 ("The presence of gay men - especially so many who are thoroughly competent for military service calls into question everything that manhood is supposed to mean."); Karst, supra note 11; Rolison & Nakayama, supra note 46, at 125
("[The] construction of homosexuality by the armed forces represents a reasserted hegemony of masculinity that was formed in opposition to
assumed homosexual traits."). L.J. Moran links the heterosexualization of manhood to concerns about the nation-state:

The male body becomes a device through which an idea of the nation is realised....Thus manliness/nation is represented as order, strength,
rationality, the upper part of the body, stiffness, harmony, proportion, stability, unchanging values, timeliness....It is within the terms of the
iconic repertoire set up in the idea of the M<um a>nnerstaat, that a homosexual is produced through a particular chain of associations; the
emotional, effeminate, weak, subversive, conspiratorial, rebellious, revolutionary, corrosive, dark, dangerous, sensuous, irrational, unstable,
and corrupt.
L.J. Moran, The Uses of Homosexuality: Homosexuality for National Security, 19 Int'l J. Soc. L. 149, 160-61 (1991). For a useful
discussion of the link between military concerns about heterosexual manhood and the military's treatment of women, see Michelle M.
Benecke & Kirstin S. Dodge, Military Women in Nontraditional Job Fields: Casualties of the Armed Forces' War on Homosexuals, 13 Harv.
Women's L.J. 215 (1990).

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47 UCLA L. Rev. 1467, *1519

n95. In recent years, there has been a proliferation of scholarship focusing on masculinity - the extent to which it is socially constructed and
reenacted (performed) in everyday social interactions. See generally Timothy Beneke, Proving Manhood: Reflections on Men and Sexism
(1997); Black Men on Race, Gender & Sexuality: A Critical Reader, supra note 7; Barbara Eharenreich, The Hearts of Men (1983);
Engendering Men: The Question of Male Feminist Criticism (Joseph A. Boone & Michael Cadden eds., 1990); Susan Jeffords, The
Remasculinization of America: Gender and the Vietnam War (1989); Sam Keen, Fire in the Belly: On Being a Man (1992); Majors &
Billson, supra note 38; Male Order: Unwrapping Masculinity (Rowena Chapman & Jonathan Rutherford eds., 1988); Men, Masculinity, and
the Media (Steve Craig ed., 1992); Constance Penley & Susan Willis, Male Trouble (1993); The Politics of Manhood: Profeminist Men
Respond to the Mythopoetic Men's Movement (and the Mythopoetic Leaders Answer) (Michael S. Kimmel ed., 1995); David Savran,
Taking it Like a Man: White Masculinity, Masochism, and Contemporary American Culture (1998); Victor J. Seidler, Recreating Sexual
Politics: Men, Feminism, & Politics (1991); Speak My Name: Black Men on Masculinity and the American Dream (Don Belton ed., 1995).

n96. See Judith Butler, Imitation and Gender Subordination, in Inside Out: Lesbian Theories, Gay Theories 13 (Diana Fuss ed., 1991)
(discussing gender as a reiterative identity, an identity whose intelligibility requires repetitive performances).

n97. For a sustained development of this argument, see generally Karst, supra note 92. See also Shilts, supra note 71, at 730; Rolison &
Nakayama, supra note 46, at 130 (arguing that "the problematic of masculinity has informed the exclusion of both African-Americans and
gay Americans from the military").

n98. Lots of people have made this point. See, e.g., Gwendolyn M. Hall, Intersectionality: A Necessary Consideration for Women of Color
in the Military?, in Beyond Zero Tolerance 143, (Mary Fainsod Katzenstein & Judith Reppy eds., 1999); Karst, supra note 92; Brenda L.
Moore, Reflections of Society: The Intersection of Race and Gender in the U.S. Army in World War II, in Beyond Zero Tolerance, supra at
125.

n99. See generally Clark Freshman, Whatever Happened to "Anti-Semitism"? How Social Science Theories Identify Discrimination and
Promote "Coalitions" Between "Different" Minorities, 85 Cornell L. Rev. 313 (2000).

n100. ( Homo)Sexual orientation discrimination existed all throughout the history of the U.S. military, even in the 1940s. See Eskridge,
supra note 1, at 49-52 (1999); Humphrey, supra note 71, at 3-55; Eskridge, supra note 3, at 1086-93.

n101. On the politics of the body and the construction of genders, see generally Judith Butler, Bodies that Matter: On the Discursive Limits
of "Sex" (1993).

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n102. See Lane, supra note 21, at 1076. Here, too, the presumption of heterosexuality would apply.

n103. The general notion was that black people were unclean. See Douglas S. Massey & Nancy A. Denton, American Apartheid:
Segregation and the Making of the Underclass 29 (1993) (noting that whites in the early 1900s were "repelled by what they saw as the
uncouth manners, unclean habits, slothful appearance, and illicit behavior" of blacks). The more specific argument was that blacks were
responsible for spreading tuberculosis. See Marion M. Torchia, Tuberculosis Among American Negroes: Medical Research on a Racial
Disease, 1830-1950, in From Consumption to Tuberculosis: A Documentary History 495 (Barbara Gutmann Rosenkrantz ed., 1994). Of
course, in contemporary debates about gays in the military, proponents of a gay and lesbian ban often argue that excluding gays from the
military is justified because of concerns about the AIDS virus. See, e.g., William Hamilton, Editorial, The "Straight' Military Majority Has a
Right to Protection from Disease, USA Today, July 20, 1993, at A10 ("Combat is hazardous enough without putting the highest risk group
for AIDS and hepatitis on the battlefield or aboard ship."); Lifting Gay Military Ban Hits Emotional Chord, L.A. Times, Nov. 19, 1992, at
A5 (""There is no question that the homosexual community, particularly males, are [sic] very diseased.'" (quoting Kevin Toledo, cofounder
of Colorado for Family Values)); see also Bianco, supra note 62, at 51 ("The AIDS risk is very real,since two-thirds of all current AIDS
cases involved transmission through homosexual activity....Homosexuals also account for a disproportionate number of cases of sexually
transmitted diseases, such as syphilis, gonorrhea, genital warts, hepatitis A, hepatitis B and also diseases associated with anal intercourse"
(quoting Robert M. Knight, Should the Military's Ban on Homosexuals Be Lifted?, Insight, Nov. 1992, at 5)). It remains the case, however,
that the ideology that dominates the antigay military discourse is not about disease and contamination, but heterosexuality, masculinity, and
manhood.

n104. Bianco, supra note 62, at 61.

n105. Again, the presumption of heterosexuality would apply to both white men and black men.

n106. I employ "penetration" precisely to suggest that concerns about race are often also about the physical act of sex (and especially sexual
violence) and the social meaning of gender. For a discussion of the relationship between racial oppression and sexual violence, see John
Hope Franklin, From Slavery to Freedom: A History of Negro Americans 439-44 (1967); Calvin C. Hernton, Sex and Racism in America
(1965), Bell Hooks, Black Looks: Race and Representation 62-66 (1992); Charles Herbert Stember, Sexual Racism: The Emotional Barrier
to an Integrated Society (1976); West, supra note 38, at 119-31; Sumi K. Cho, Coverging Stereotypes in Racialized Sexual Harassment:
Where the Model Minority Meets Suzie Wong, 1 J. Gender, Race & Just. 177 (1997); Charles R. Lawrence III, The Message of the Verdict,
A Three-Act Morality Play Starring Clarence Thomas, Willie Smith, and Mike Tyson, in Black Men on Race, Gender, and Sexuality: A
Critical Reader, supra note 7, at 212; and Jennifer Wriggins, Rape, Racism, and the Law, 6 Harv. Women's L.J., 103 (1983).

n107. Black inferiority was argued and discussed in science, social science, politics, and religion. See generally The Development of
Segregationist Thought (I.A. Newby ed., 1968); I.A. Newby, Jim Crow's Defense: Anti-Negro Thought in America, 1900-1930 (1965).

n108. Interracial intimacy, officials feared, would begin to dismantle segregation's stronghold. But this does not mean that interracial
intimacy is not about sex. See Randall I. Kennedy, How Are We Doing with Loving?: Race, Law, and Intermarriage, 77 B.U. L. Rev. 815

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47 UCLA L. Rev. 1467, *1519

(1997).

n109. 163 U.S. 537 (1896), overruled by Brown v. Board of Educ., 347 U.S. 483 (1954) (holding that separate railway facilities for whites
and blacks meets the Fourteenth Amendment's requirement for formal equality). Of course, the exclusion of gays and lesbians from the
military is part of a disciplinary regime of compulsory heterosexuality. See generally Adrienne Rich, Compulsory Heterosexuality and
Lesbian Existence (1980). Moreover, governmental attempts to exclude gays and lesbians from the military are buttressed by the
homophobic logic of Bowers v. Hardwick, 478 U.S. 186 (1986). And just as opponents of integration of the armed forces in the 1940s
worried about the extent to which racial integration of the armed forces would legitimize arguments for racial equality, today, supporters of
the gay ban worry about the extent to which gay and lesbian integration into the armed forces would legitimize a "homosexual lifestyle." See
Bass, supra note 86, at 15.

n110. Bianco, supra note 62, at 65-66 (quoting the Chairman of the Navy General Board before World War II).

Now the Army's duty is to fight battles and win wars. Therefore, the Army must maintain morale in the ranks and use its manpower with
maximum efficiency. Integration would lower morale and impair efficiency. Whites just will not serve with blacks, and even if they would,
it is not possible to train and use Negroes in highly skilled jobs. The Army must take the country as it is. It must accept social patterns and
keep abreast of changes, but it is not an instrument for social experimentation.
Id. (emphasis added).

n111. At different moments in American political history, blacks have employed the military as an institutional site for racial equality
struggles. See Mershon & Schlossman, supra note 72, at 168-71; Nalty, supra note 72, at 270-86 (discussing pressures by the NAACP on the
military as part of the greater integration effort); Orlando Patterson, The Ordeal of Integration: Progress and Resentment in America's
"Racial" Crisis 19 (1997) ("Closely related to the achievement of full political and cultural citizenship has been...the desegregation of the
U.S. military.").

n112. See Karst, supra note 92, at 520-22.

n113. Gay rights activists and scholars viewed the "Don't Ask, Don't Tell" issue as an opportunity to engage in a much broader equality
struggle. See, e.g., Eskridge, supra note 1, at 179 (arguing that the "Don't Ask, Don't Tell" policy threatens individual autonomy and freedom
of expression); Halley, supra note 1, at 131 (noting that the policy may be "a model for official anti-gay discrimination elsewhere" and that a
"formalization of private discrimination could follow"); Karst, supra note 92, at 524-29 (discussing the relationship between the exclusionary
policy and the denial of full citizenship to gays and lesbians); Sharon Elizabeth Rush, Equal Protection Analogies - Identities and "Passing":
Race and Sexual Orientation, 13 Harv. BlackLetter J. 65, 66 (1997) (stating that the policy "seems dramatically at odds with the fundamental
principle of equality for all people embodied in our Constitution"); see also Nancy D. Polikoff, Resisting "Don't Ask, Don't Tell" in the
Licensing of Lesbian and Gay Foster Parents: Why Openness Will Benefit Lesbian and Gay Youth, 48 Hastings L.J. 1183 (1997) (arguing
against a similar policy in the context of family law).

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n114. See Berube, supra note 80, at 200 (observing that "it is one of many tragic ironies of the war that gay soldiers and officers had to kill,
risk their lives, and see their buddies die in order to gain some respect and a sense of belonging as "men among men'").

n115. Karst, supra note 92, at 500.

n116. See Lehring, supra note 73, at 272 (noting that "defense of country traditionally has been considered a defining characteristic of
citizenship").

n117. See, for example, Bianco, supra note 62, at 49-66, for a useful discussion of comparability arguments. See also Rubenstein, supra note
86, at 241-42.

n118. This is not to say, of course - and I certainly do not argue here - that racism, sexism, and homophobia are unrelated, that they are
separate and distinct social phenomena. As William Eskridge observes "Bigotry is synergistic." Eskridge, supra note 2, at 55. Moreover, I
agree that racism and homophobia are "forms of unjustified exclusion," and that "arguments for excluding [gays and lesbians from the
military] are not better than arguments made in the 1940s for segregating African-Americans." Id. at 55.

n119. See Woodward, supra note 51, at 7 (describing Jim Crow laws as "public symbols and constant reminders of [blacks'] inferior
position").

n120. Some gay rights proponents explicitly downplayed the historical difference between 1940s discrimination against blacks and 1990s
discrimination against gays and lesbians. See Bianco, supra note 62, at 47 (observing that "those opposed to the ban suggested that military
homophobia was just another incarnation of military racism, and that by ending discrimination on the basis of sexual orientation, Clinton
would be acting in the spirit of Harry S. Truman when he ordered an end to racial discrimination on the basis of race").

n121. Describing how interpretation can exact violence, Robert Cover writes:

The normative world-building which constitutes "Law" is never just a mental or spiritual act. A legal world is built only to the extent that

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there are commitments that place bodies on the line. The torture of the martyr is an extreme and repulsive form of the organized violence of
institutions. It reminds us that the interpretive commitments of officials are realized, indeed, in the flesh.
Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1605 (1986).

n122. See Reza, supra note 82.

n123. See Bianco, supra note 62, at 49 (noting that "race and sexual orientation are comparable categories").

n124. See id. (observing that military racism and military homophobia are "strikingly similar" and quoting Barney Frank for the proposition
that "saying we can't have gay people in the military because heterosexuals won't like them, regardless of how they behave, is like saying we
can't have black people around because white people won't like them. That was wrong, and this is wrong.").

n125. This is similar to the way in which male identity operates as the default gender in black antiracist politics. See Carbado, supra note 10,
at 160.

n126. See Lane, supra note 21, at 1076-77.

n127. See id. at 1075.

n128. In many respects, the armed forces today continue to battle problems of prejudice and racism. Kenneth Karst notes:

Ending segregation and ending racial discrimination are not the same thing. Racial tensions ran high during the Vietnam War, especially in
the Army, which had few black officers and was suffering a general decline in discipline and morale. The discord in the Army reflected
similar conflict in America's civilian society in the early years of "white backlash" against the changes of the civil rights era.
Karst, supra note 92, at 521; see also John M. Broder, Military's Unending War on Bias, L.A. Times, Sept. 20, 1989, at A17; Steven A.
Holmes, Which Man's Army, N.Y. Times, June 7, 2000, at A1 (noting that in a recent study the Pentagon "found that two-thirds of the men
and women in the armed forced had experienced a racially offensive encounter in the previous 12 months"); Jim Lobe, African-American
Soldiers Complain of Racism in the Military, Pittsburgh Courier, Dec. 15, 1999, at A5 (observing that "African Americans still see more
racial discrimination in the military than whites or any other minority groups - and they are more pessimistic about their prospects for

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advancement").

n129. For a good discussion of the relationship between the military's history of racial segregation and its practices excluding straight and
homosexual women and gay men, see Karst, supra note 92, at 499.

n130. See Thomas, supra note 17, at 66 (observing that "sexuality is always "racialized' and race is always "sexuated'").

n131. Further, there is no evidence to suggest that gay rights activists were interested in employing the "Don't Ask, Don't Tell" controversy
as a window through which to explore homosexual identity politics within the black community.

n132. Timothy Egan, Dismissed from Army as Lesbian, Colonel Will Fight Homosexual Ban, N.Y. Times, May 31, 1992, at 18; see also
Lehring, supra note 73, at 286 (commenting that "Colonel Cammermeyer's claim that lesbians and gay men are just like everyone else seems
part plaintiff wish, part self-fulfilling prophecy").

n133. See Egan, supra note 132, at 18.

n134. Id.

n135. Certainly, the Reverend Lou Sheldon, chairman of the Traditional Values Coalition, an antigay and antilesbian organization,
interpreted the gay rights activists' deployment of race/sexual orientation analogies as an attempt to engender "empathy from white
[heterosexual] men like me." Lane, supra note 21, at 1086.

n136. The possibility exists that Margarethe Cammermeyer may be advancing another analogy - namely, that normal gays and lesbians are
like normal heterosexuals. To the extent that whiteness operates as a racial norm and need not be specified, this analogy is, in substance, the
same as Claim 5. Both reflect an effort to mainstream gay and lesbian identities. See Andrew Sullivan, Virtually Normal: An Argument
About Homosexuality (1995) (explaining this possibility). Clark Freshman describes an encounter with another gay man that reveals the
relationship between white racial bonding among gays and lesbians and political efforts to mainstream white gay and lesbian identities. He
writes:

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47 UCLA L. Rev. 1467, *1519

During protests over then Governor Pete Wilson's veto of a bill to ban sexual orientation discrimination,...an acquaintance who graduated
from a fancy law school turned to me in a relatively upscale gay video bar and said, "What's wrong with these Republicans? Don't they
realize how wealthy we are and how we'd vote for all of them if it were for this one thing?"
Clark Freshman, Whatever Happened to Anti-Semitism? How Social Science Theories Identify Discrimination and Promote Coalition
Between "Different" Minorities, 85 Cornell L. Rev. 313, 438 n.493 (2000). Presumably, the "we," the people Freshman's acquaintance is
speaking for, refers to white, class-privileged gay men, for there is more than one thing about Republican politics that working class gays
and lesbians and black people (across class, gender, and sexual orientation lines) contest. And there is reason to believe that the "them," the
people to whom Freshman's acquaintance is speaking - the Republicans - are imagined as white, class privileged, and heterosexual. For it is
only with that identity in mind that it becomes apparent that the "one thing" that separates the "we" from the "them" is sexual orientation.

n137. Marc Fajer observes that

many of us [gay people] are very much like heterosexuals in the nature of our aspirations, our relationships, and many other aspects of our
lives, despite differences caused by the experience of exclusion. This is not surprising. We are brought up in the same families and socialized
in the same ways as everyone else.
Fajer, supra note 63, at 529-30 (footnote omitted). In advancing this argument, Fajer is interested in contesting some of the problematic
assumptions heterosexuals make about the so-called "gay life style" - assumptions that are oftentimes explicitly about sex. Part of his project
is to counter peoples' preunderstanding about the (sexual) nature of gay and lesbian relationships. Fajer's work is an important intervention
into the dominant way in which gay and lesbian relations are legally, politically, and socially constructed. By quoting Fajer here, then, I am
not suggesting that he actually imagines the gay community as white or that he is intentionally engaging in white racial bonding with
heterosexual white people. What I am suggesting, though, is that the rhetorical force of his argument derives in part from the unstated racial
identities of the "many of us gay people" and the "heterosexuals" in his argument. Whiteness is normalized in both gay and lesbian and
heterosexual communities. Blackness signifies difference. Thus, for Fajer's argument to have force, the gay people and the heterosexuals in
the argument must be understood to be white.

n138. See Fanon, supra note 19, at 188-89 (discussing how blackness is linked to that which is bad and whiteness to that which is good);
Bell Hooks, Yearnings: Race, Gender, and Cultural Politics 54 (1990) (observing that whiteness becomes apparent to white people only in
relation to nonwhite racial identities); Crenshaw, Race, Reform, supra note 6, at 1370-76 (suggesting that the social meanings that attach to
blacks are in opposition to the social meanings that attach to whites).

n139. Even as Grillo and Wildman are critical of the civil rights practice of analogizing identity, they do not go so far as to argue that we
should never employ identity analogies. According to Grillo and Wildman, analogies deepen our consciousness and permit us to progress in
our thinking. "Analogies are an important, perhaps indispensable, tool in individual moral reasoning." Grillo & Wildman, supra note 79, at
400. They reason that "we have no other way to understand each others' lives, except by making analogies to events in our own experience."
Id. at 398.

n140. Butler, supra note 47, at 18. According to Butler, "there is no metaphor from which to learn when it comes to addressing the
acceptance of homosexuality." Id. at 19.

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n141. Joan C. Williams, Dissolving the Sameness/Difference Debate: A Post-Modern Path Beyond Essentialism in Feminist and Critical
Race Theory, 1991 Duke L.J. 296, 299.

n142. Roberto Unger explains: "The decision to liken one instance to another, or to distinguish them, turns on a judgment of what
differences and similarities are most significant to the moral beliefs at stake." Roberto Mangabeira Unger, Knowledge and Politics 258
(1975).

n143. The race/sexual orientation analogy has been employed in other arenas of public discourse. Scott Wiener sees gay rights as analogous
to black civil rights because both movements underscore a broader civil liberties campaign for individual freedom. See Scott D. Wiener,
Created Equal: Why Gay Rights Matter to America, 30 Harv. C.R.-C.L. L. Rev. 267 (1995). Mark Strasser has argued that sexual
orientation, like race, should be treated as a suspect classification for purposes of equal protection challenges. See Mark Strasser, Suspect
Classes and Suspect Classifications: On Discriminating, Unwittingly or Otherwise, 64 Temp. L. Rev. 937 (1991). The analogy has also been
raised with respect to the politics of passing as heterosexual or white. See Rush, supra note 113, at 85-97. Moreover, numerous scholars have
advanced an analogy between the previous ban on interracial marriage and the current ban on same-sex marriage. See, e.g., William N.
Eskridge, Jr. The Case for Same-Sex Marriage 153-63 (1996); David Orgon Coolidge, Playing the Loving Card: Same-Sex Marriage and the
Politics of Analogy, 12 BYU J. Pub. L. 201 (1998); Andrew Koppelman, The Miscegenation Analogy: Sodomy Law as Sex Discrimination,
98 Yale L.J. 145 (1988); Mark Strasser, Family, Definitions, and the Constitution, 25 Suffolk U. L. Rev. 981, 1001 (1991). Finally, several
scholars have analogized Bowers v. Hardwick, 478 U.S. 186 (1986) (denying a gay man's due process challenge to Georgia's sodomy
statute) to Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) (holding that blacks, because they are descendants of slaves, cannot be
citizens of the United States within the meaning of the U.S. Constitution). See, e.g., David Cole & William N. Eskridge, Jr., From
Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct, 29 Harv. C.R.-C.L. L. Rev. 319, 323 (1994)
("Bowers is to the growing gay rights movement what...Dred Scott v. Sandford was to the abolitionists." (footnote omitted)).

n144. See Crenshaw, Demarginalizing, supra note 6, at 140 (arguing that civil rights discourse often reflects a "single axis" framework that
ignores the various aspects of our personhood).

n145. See id. (discussing the failure on the part of white feminist scholars and activists, and black antiracist scholars and activists, to address
the intersection of race and gender in their work).

n146. Put another way, their employment of the "race and sexuality analogy...precluded an examination of the ways in which racial
domination and privilege impact gay and lesbian people." Hutchinson, supra note 63, at 584; see also Grillo & Wildman, supra note 79, at
410 (suggesting that we "struggle" with the possibility that we might not be able to use the race/sex analogy "without reinforcing
racism/white supremacy").

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n147. An argument that I do not advance here, and that Darren Lenard Hutchinson situates in the context of a broader critique of gay and
lesbian advocacy, is that part of what is problematic about gay activists' employment of race/sexual orientation analogies is their general
"refusal to challenge racial and class subordination." Hutchinson, supra note 63, at 630. According to Hutchinson, "the absence of an
integrated - rather than analogical and external - disarmor of racism in the context of the military debates echoes the general lack of
knowledge about, animosity for, and ambivalence towards, the meaning of race in gay and lesbian politics." Id.; see also Urvashi Vaid,
Virtual Equality 186-87 (1995) (observing that "even those [gay rights proponents] who believe that the racial justice movement should be
completely distinct from the gay rights movement often draw analogies in order to defend gay rights").

n148. Part of a civil rights strategy involves selecting the "right" (read: most palatable) plaintiffs. The challenge to antigay military policies
was no different. See Diane H. Mazur, The Unknown Soldier: A Critique of "Gays in the Military" Scholarship and Litigation, 29 U.C.
Davis L. Rev. 223, 225 (1996) ("The most common category of gay military plaintiffs can be called "six o'clock news' plaintiffs.").

n149. See Ruthann Robson, Convictions: Theorizing Lesbians and Criminal Justice, in Legal Inversions: Lesbians, Gay Men, and the
Politics of Law, supra note 69, at 180, 189 (discussing the primacy of "but for" lesbians in lesbian equality litigation).

n150. See Watkins v. United States Army, 875 F.2d 699, 711 (1989) (en banc) (holding that the military was estopped from not reenlisting
Watkins based solely on his acknowledged homosexuality).

n151. See Boykin, supra note 17, at 219.

n152. On the importance of "storytelling" to legal disputes, see generally Suzanne Pharr, Homophobia: A Weapon of Sexism 86 (1997)
(observing that "all the stories are of equal importance and must be heard"); Kathryn Abrams, Hearing the Call of Stories, 79 Cal. L. Rev.
971, 1051 (1991) (arguing that storytelling is a way for excluded groups to reclaim their history, a strategy to resist the ""forced forgetting'
imposed by official abstraction" (quoting A. Addis, The Communications Process and Minorities 43 (unpublished manuscript, on file with
Kathryn Abrams))); Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411 (1989); Fajer,
supra note 63; Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?, 87 Mich. L. Rev. 2099,
2105-06 (1989) (suggesting that storytelling is a way to achieve "multi-voicedness"); Mari J. Matsuda, Looking to the Bottom: Critical Legal
Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987) (arguing that legal decision makers should "look to the bottom" to
understand the ways in which discrimination affects outsider groups); and Symposium, Legal Story Telling, 87 Mich. L. Rev. 2073 (1989).
For critiques of storytelling and or the employment of narratives in legal scholarship, see Daniel Farber & Suzana Sherry, Telling Stories
Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993).

n153. See Meinhold v. United States Dep't of Defense, 123 F.3d 1275 (9th Cir. 1997). Keith Meinhold was a Navy petty officer with 12
years experience. During an interview on World News Tonight (ABC television broadcast, May 1992), he stated that he was gay. The Navy
immediately began discharge proceedings, which were completed on August 12, 1992. Meinhold then brought suit against the Department of
Defense challenging his discharge. See id. at 1276-77. The Ninth Circuit held that the district court did not abuse its discretion in finding that
the government's position was not substantially justified. See id. at 1280.

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n154. See Steffan v. Aspin, 8 F.3d 57, 60 (D.C. Cir. 1993), vacated and reh'g granted, 1994 U.S. App. LEXIS 9977 (D.C. Cir. Jan. 7, 1994)
(unpublished disposition) (en banc). On December 29, 1988, Joseph Steffan filed suit against the Navy, alleging that his discharge from the
Naval Academy, based solely on his "homosexual status" violated the U.S. Constitution. As the litigation proceeded, an issue arose with
respect to whether Steffan was required to answer questions about his sexual practices while he was in the Navy. See Steffan v. Cheney, 733
F. Supp. 121, 122 (D.D.C. 1989), rev'd, 920 F.2d. 74 (D.C. Cir. 1990). At the direction of his attorney, Steffan had refused to answer such
questions. See id. at 123. His claim was that because his dismissal was based on homosexual status (and not conduct), information regarding
his sexual practices was irrelevant to his lawsuit. See id. The district court disagreed and dismissed the case with prejudice. See id. at 128.
Steffan appealed that decision to the D.C. Circuit and won. See Steffan v. Cheney, 920 F.2d 74 (D.C. Cir. 1990). The victory was
short-lived, however. A little more than a year later, the district court granted the Navy's motion for summary judgment. See Steffan v.
Cheney, 780 F. Supp. 1 (D.D.C. 1991), rev'd sub nom Steffan v. Aspin 8 F.3d 57 (D.C. Cir. 1993), vacated and reh'g granted, 8 F.3d 70 1994
U.S. App. LEXIS 9977 (D.C. Cir. Jan. 7, 1994) (unpublished disposition) (en banc). The D.C. Circuit concluded that the Navy's regulation
that required Steffan to resign based solely on homosexual status violated his rights to equal protection. See id. at 70. Accordingly, it ordered
the Navy to commission Steffan as an officer and to award him the Naval Academy Diploma. See id. However, after hearing the case en
banc, the D.C. Circuit vacated this order. See 1994 U.S. App. LEXIS 9977 (D.C. Cir. Jan. 7, 1994) (unpublished disposition) (en banc).

n155. See Mary Fainsod Katzenstein, The Spectacle of Life and Death: Feminist and Lesbian/Gay Politics in the Military, in Gay Rights,
Military Wrongs, supra note 62, at 229, 234.

n156. My invocation of Perry Watkins's experiences in the military is not intended to suggest that race alone explains why his story was not
featured prominently in gay rights discourse about "Don't Ask, Don't Tell." Fundamentally, gay rights proponents were interested in
representing "presentable" and "respectable" gay and lesbian service people. Arguably, Watkins's race - in a narrow phenotypic sense - was
but one aspect of his identity that rendered him "unpresentable." Presumably, if Powell came out as a gay man during the debates about
"Don't Ask, Don't Tell," the gay rights proponents would have employed him as an icon. And they would have used Powell not just because
of his then-status as a high-ranking military official, but also because he performs his blackness in ways that are palatable - acceptable - to
mainstream white Americans. In many respects, Powell is an "honorary white" - a person who, to some meaningful extent, transcends the
negative social meaning of blackness. Few black people hold, or want to hold, that status. Certainly, Watkins did not. In this sense, the racial
problem that Watkins's identity presented to the gay rights proponents derived not only from the fact that he was phenotypically black, but
also from the way in which Watkins presented or performed his blackness. See Carbado & Gulati, supra note 57 (suggesting that people
experience discrimination based both on outside status, for example, whether a person is black, and how that outsider status is performed, for
example, whether the person is perceived to be a "good" (assimilationist) or "bad" (radical) black).

n157. See Watkins v. United States Army, 875 F.2d 699, 701 (1989) (en banc). For a thoughtful discussion of the Perry Watkins case as an
illustration of the possibilities of gay legal narrative, see Eskridge, supra note 8, at 611-16.

n158. See Watkins, 875 F.2d at 701. Watkins was required to complete the Army's preinduction medical form that required him to indicate
whether he had any "homosexual tendencies." He answered in the affirmative. See id.

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n159. See id.

n160. Id.

n161. See id. at 701-02.

n162. See Eskridge, supra note 8, at 622.

n163. See id.

n164. See Francisco Valdes, Queers, Sissies, Dykes and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual
Orientation" in Euro-American Law and Society, 83 Cal. L. Rev. 1 (1995).

n165. See generally Julie Yuki Ralston, Geishas, Gays and Grunts: What the Exploitation of Asian Pacific Women Reveals About Military
Culture and the Legal Ban on Lesbian, Gay and Bisexual Service Members, 16 Law & Ineq. J. 661 (1998).

n166. In 1972, the army once again investigated Watkins's sexual orientation. And here, again, the army concluded that there was
"insufficient evidence" to discharge Watkins. See Watkins v. United States Army, 875 F.2d 699, 702 (1989) (en banc). Moreover, in 1975,
the Army convened a retention board to determine whether Watkins should be discharged for his sexual orientation. Watkins's commanding
officer and a sergeant testified before this body that (1) Watkins's sexuality was well known, and (2) Watkins's job performance was
fantastic. The board concluded that, because Watkins's sexual orientation had not negatively affected "unit performance, morale or
discipline, or...his own job performance," the army should retain him. Id. The board explicitly rejected the evidence indicating that Watkins
had engaged in homosexual conduct after 1968. The Major General approved the board's decision. See id.

n167. See id. Watkins was subject to an Army investigation in 1979 as well. This investigation was prompted by Watkins's public disclosure
of his sexual orientation in an interview. Watkins was reenlisted for a three-year term prior to the end of this investigation. See id.

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n168. At a discharge proceeding against Watkins in 1975, one of his captains commented that "Watkins was the "best clerk I have known,'
that he did "a fantastic job - excellent,'" and that Watkins's homosexuality did not have an adverse effect on the military community to which
Watkins belonged. Id.

n169. See id. at 711 ("This is a case where equity cries out and demands that the Army be estopped from refusing to reenlist Watkins on the
basis of his homosexuality.").

n170. This organization was specifically formed to overturn the ban. See Lehring, supra note 73, at 284.

n171. Boykin, supra note 17, at 218. According to Chris Smith, Chairman of the Seattle-based Stonewall Committee for Lesbian and Gay
Rights, Watkins "didn't get the respect he deserved....He had a ring in his nose. He was absolutely "out.' He talked about sex all the time."
Victor M. Gonzalez, Perry Watkins Loses Final Battle, to AIDS, News Trib. (Tacoma), Mar. 21, 1996, at A1. Smith argues that "Perry was a
role model." Id. However, he was not embraced by the gay rights community. "They put him on the shelf, and wouldn't use him to help the
fight. Cammermeyer was much more palatable." Id.

n172. See Boykin, supra note 17, at 218-19.

n173. For a indication of Watkins's public appearances, see SIS: The Perry Watkins' Story: (NewsCart Production 1994) (on file with the
Hugh & Hazel Darling Law Library, UCLA School of Law).

n174. See Sarah Schulman, My American History: Lesbian and Gay Life During the Reagan/Bush Years 269 (1994) (observing that "in the
Marine Corps, black females were discharged for homosexuality at twice the rate of white males"); see also Shilts, supra note 71, at 336-37
(observing that all the black female crew members of the U.S.S. Norton Sound were identified as lesbians); id. at 352-56 (discussing the
indictment of eight military women, three of whom were black, based on allegations of "lesbianism"); Eaton, supra note 69, at 59 & 72 n.38
("Scattered accounts suggest that the military discharge practices may follow a racial pattern."); Hutchinson, supra note 63, at 631 n.297
("The virtual absence of black gays and lesbians in the military discourse likely results from this narrow [that is, white] focus of gay
rights."). Andrea Lewis & Robin Stevens, At the Crossroads: Race, Gender and the Gay Rights Movement, Ethnic Newswatch, Apr. 30,
1996, at B8.

If you watched the media and looked at all of the poster children - the people in the military kicked out because of the ban and filing cases
against the military - they were white officers and they were almost all men. But when you look at the numbers, the ban actually
disproportionately affects enlisted personnel, not officers. So there is a class distinction, and it affects people of color and women

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proportionally more.

Id. (quoting Mike Perez, a member of the United States Students Association, which organized against homophobia in the military). For a
discussion of how race and gender affect the discharge rate of military personnel, see D'Amico, supra note 79.

n175. For example, in Winni S. Weber, Lesbians in the Military Speak Out (1993), the first-person stories of more than thirty women are
told and only one profiles a black woman.

n176. This is not to suggest that the fact of black and gay identity renders the claim "blacks are like gays" unsustainable. The point is rather
that to the extent that black gay identity is a part of the discourse, it becomes apparent that black gays exist at both ends of the analogy.
Advancing the analogy with an awareness that black gays occupy both ends raises the question of which black people and which gay people
are being analogized.

n177. See Cammermeyer v. Perry, 97 F.3d 1235, 1236 (9th Cir. 1996). Cammermeyer was a highly decorated nurse who served in the
Army, Army Reserve, and National Guard. She received the Bronze Star in Vietnam and held the position of Chief Nurse in several
hospitals. She was being interviewed by the Defense Investigation Service in order to receive top security clearance. At that time she was
asked questions about her sexual activities. When she signed her statement at the end of the interview, she wrote that she was a lesbian. The
National Guard said it would not pursue her removal unless they were directed to do so by the Department of the Army. Six months later the
Department of the Army withdrew her federal recognition, making her ineligible to serve. See id. The Ninth Circuit held that under
governing regulations, she should not have been separated solely on the basis of her statement that she was a lesbian. Cammermeyer was
later reinstated. See id. at 1237.

n178. Boykin, supra note 17, at 219. Watkins died on March 17, 1996, from complications arising from AIDS. See David W. Dunlop, Perry
Watkins, 48, Gay Sergeant Won Court Battle with Army, N.Y. Times, Mar. 21, 1996, at B8.

n179. Boykin, supra note 17, at 220.

n180. Lambda Legal Defense and Education honored Perry Watkins with an award at one of its annual events. Thus, my argument is not
that there was no recognition of him as a gay icon within the gay and lesbian community. Rather, my point is that for the most part, Watkins
was not presented to the "heterosexual world" or to the broader gay and lesbian community as a gay icon.

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47 UCLA L. Rev. 1467, *1519

n181. William Eskridge's analysis of Watkins provides a powerful example of how gay rights proponents like Thomas B. Stoddard could
have employed Watkins's experiences in the military to tell a compelling story about the relationship between racial and sexual orientation
discrimination. According to Eskridge,

Perry Watkins story suggests a further cultural phenomenon. One mystery about his case is why, given the military's exclusion policy,
Watkins was allowed to sign up in 1967, notwithstanding his openness about his gay orientation, and why, a year later, the military found
insufficient evidence of homosexuality to discharge him, notwithstanding his declaration that he had engaged in sex with two men, including
another serviceman. While bureaucratic whimsy or inertia may supply an explanation, Watkins believes otherwise. He thinks the Army
accepted him in 1967 because he was a nineteen-year-old black man, whom the Army doctor and enlistment officer assumed would be killed
in Vietnam - one less black guy for the country to worry about. He is less certain about why his 1968 declaration did not lead to a discharge;
however, he notes that one serviceman with whom he had sex was a white man who strenuously denied any sexual activity. Thus, the
military either believed the white man over the black, or again felt its manpower needs were too great to discharge a soldier ready to serve in
Vietnam.

Eskridge, supra note 8, at 618 (footnotes omitted). For Watkins's personal account of his experiences in the military, see Humphrey, supra
note 71, at 249-56 (recounting how his experiences in the military were explicitly racialized, reflecting an awareness of the ways in which
the intersection of race, gender, and sexuality shaped how military officials responded to him).

n182. Vaid, supra note 147, at 275 (noting a response of a potential white gay donor to the news that Urvashi Vaid had been selected as the
executive director of the National Gay and Lesbian Task Force). Urvashi Vaid, because she is not white (she is of South Asian ancestry), did
not have "racial standing" to represent the (white) gay and lesbian movement. Apparently, the donor was concerned not only with Vaid's
racial identity but also with her radical politics. My point here is that race (more specifically, the fact that Vaid is not white) mattered to the
donor. Her race circumscribed her representational capacity.

n183. See Lane, supra note 21, at 1084 (observing that "the choice between Watkins [on the one hand] and Meinhold [and other gay white
icons on the other] was one between the non-universality of blackness [as representative] and the universality of whiteness, between that
which could not represent and the representative").

n184. Cf. Crenshaw, Demarginalizing, supra note 6, at 141-50 (exploring the representational capacity of whiteness in the context of Title
VII litigation and indicating how in some cases defendants have been able to defeat black women's sex discrimination claims by pointing to
the fact that white women were not discriminated against).

n185. See Devon W. Carbado, Straight Out of the Closet, 13 Berkeley Women's L.J. (forthcoming August 2000).

n186. Perry Watkins's battle with the courts ended in 1989. Four years passed until the "Don't Ask, Don't Tell" policy was announced by
President Clinton in July 1993.

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n187. For a comprehensive critique of the white-centered nature of gay and lesbian civil rights discourse, see Hutchinson, supra note 63, at
561. For an excellent account of how the law heterosexualizes race and racializes sexuality, see Eaton, supra note 69, at 46.

n188. Anthony Farley explains the double allure of spectacles: "I describe "race' as a sadomasochistic form of pleasure....It is the process by
which one man tries to transform another into a mere object of his will. The masochist is delighted by the spectacle of himself as the object
of another's will." Anthony Paul Farley, The Black Body as Fetish Object, 76 Or. L. Rev. 457, 461 (1997).

n189. See Margaret Cruikshank, Gay and Lesbian Liberation: An Overview, in Gays and Lesbians in the Military, supra note 46, at 14
("Why is it that people of color remain largely invisible in the gay and lesbian community? The media portrays gay liberation as a
white-only movement, a disturbance apparent to gay people. However, sometimes their own newspapers and organizations seem incapable
of including people of color in significant ways."); Katzenstein, supra note 155, at 239 ("These images of upright, presentable gay or lesbian
servicemen and women...[were] set against other portraits of homosexuals harbored by the public: the more "outrageous' spectacle of the gay
pride marches [with] dramatic cross dressing and flamboyant, demonstrative, "in your face' political theater.").

n190. See Boykin, supra note 17, at 89 (discussing the politics of Act Up vis-a-vis the author's participation in the Clinton Administration).

n191. See Katzenstein, supra note 155, at 239 (referring to the gay pride marches). Gay pride marches are considered deviant because,
among other reasons (1) they reflect same-sex desire and this desire is publicly expressed; (2) they challenge traditional notions of gender,
engaging in so-called gender-bending performances of their (attributed) identities; and (3) some of the participants wear very little clothing.
See id. at 239 (noting the public's perception of gay pride marches).

n192. See generally Katzenstein, supra note 155.

n193. Id. at 233-34 (footnotes omitted).

n194. See Lehring, supra note 73, at 286 ("Far too easily co-opted by political insiders, the movements' real goals of equality for all sexual
minorities and ending homophobia and discrimination often take a back seat to the desires of political insiders who want the movement to be
clean-cut, respectable, and moderate.").

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47 UCLA L. Rev. 1467, *1519

n195. See Katzenstein, supra note 155, at 239; see also Jeffrey Schmalz, On the Front Lines with Joseph Steffan from Midshipman to
Gay-Rights Advocate, N.Y. Times, Feb. 4, 1993, at C1 (observing that in the context of interviewing Steffan, the latter presented "himself as
purer than pure, refusing even to answer whether he has a boyfriend....He is, in short, the perfect symbol for his fight, the understated,
well-scrubbed boy next door. No one will ever label Joe Steffan a screaming queen.").

n196. The theatre invites us to employ "and" here, which suggests that gay identity is incidental to personhood, rather than "but," which
would suggest that gay identity can be disqualifying.

n197. Katzenstein, supra note 155, at 239 (emphasis added); see Lehring, supra note 73, at 288 (arguing that the struggle "toward tolerance
does not come in proving to straights that lesbians and gays are kinder and gentler versions of themselves" and that "the acceptance of
lesbians and gay men will not occur because we are "born this way,' nor because we demonstrate we can be just like the rest of America");
see also Andrew Sullivan, Gay Values, Truly Conservative, N.Y. Times, Feb. 9, 1993, at A21 ("The values that gays in the military and
espousing, patriotism and public service, are traditional values. And the effect that ending the ban could have on the gay community is to
embolden the forces of responsibility and integration.").

n198. See Katzenstein, supra note 155, at 238 ("These media events [involving gays and lesbians coming out on national television] do not
happen without orchestration."); see also Marshall Kirk & Hunter Madsen, After the Ball: How America Will Conquer Its Fear and Hatred
of Gays in the 90s 164-72 (1990) (articulating a media-based strategy for gay rights); Stephanie L. Grauerholz, Comment, Colorado's
Amendment 2 Defeated: The Emergence of a Fundamental Right to Participate in the Political Process, 44 DePaul L. Rev. 841, 851-52
(1995) (discussing the media strategies of the National Gay and Lesbian Task Force). For a discussion of the role the media played in the
civil rights movement, see Richard H. King, Civil Rights and the Idea of Freedom 208-11 (1992). See also Mary L. Dudziak, Desegregation
as a Cold War Imperative, 41 Stan. L. Rev. 61 (1988) (suggesting 1940s and 1950s American race relations were shaped, in part, by
governmental concerns about the image of American democracy reflected in the international media).

n199. Hutchinson makes a related point:

Because heterosexual racial stereotypes and anti-racist attention to heterosexual racial subordination are more inscribed in the social
structure (than are homophobic ... racism), the sexualized victimization of heterosexual people of color might be more easily identified as
"racial" victimization by judges and juries. Thus, under the present construction of most civil rights law which include [sic] race as a
formally protected category, acts of heterosexual racial discrimination may be "read" as racial even if they are sexually colored.

Hutchinson, supra note 12, at 112-13 n.427.

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47 UCLA L. Rev. 1467, *1519

n200. See Devon W. Carbado, The Ties that Bind, 19 UCLA Chicano-Latino L. Rev. 283 (1999) (exploring this question vis-a-vis Latina/o
identity).

n201. Sexual orientation is not a suspect classification under the Fourteenth Amendment. See Romer v. Evans, 517 U.S. 620 (1996). The
question in Romer was whether an amendment to the Colorado Constitution - Amendment 2 - violated the Equal Protection Clause.
Amendment 2 prohibited gays and lesbians from bringing sexual orientation discrimination claims in Colorado state courts. See id. at 1623.
Although the Court declined to hold that homosexuals are a suspect class, it nevertheless invalidated the amendment, reasoning that it
"seems inexplicable by anything but animus toward the class it affects." Id. at 1627. For a useful discussion of this case, see Janet E. Halley,
Romer v. Harwick, 68 U. Colo. L. Rev. 429 (1997). Nor is sexual orientation a protected category under Title VII. See Lesbians, Gay Men,
and the Law 262-68 (William B. Rubenstein ed., 1993) (suggesting that gays and lesbians have little protection under Title VII).

n202. See Devon W. Carbado, Race and Sex in Antidiscrimination Law, in Encyclopedia of the American Constitution: Supplement II
(Leonard W. Levy et al. eds., forthcoming 2000) (exploring the viability of compound discrimination claims under Title VII and the
Fourteenth Amendment to the U.S. Constitution).

n203. See Julie A. Nice, The Emerging Third Strand in Equal Protection Jurisprudence: Recognizing the Co-Constitutive Nature of Rights,
1999 U. Ill. L. Rev. 1209, 1222-26.

n204. See McBride, supra note 7, at 256. According to McBride:

Too often African American cultural critique finds itself positing an essential black community that serves as a point of departure for
commentary. In other cases, it assumes a kind of monolith in general when it calls upon the term "the black community" at all. Insofar as the
position of such a construct might be deemed essential to the critical project, it is not that gesture to which I object. Rather it is the
narrowness of the vision for what is constitutive of that community that is most problematic.

Id.

n205. See generally Thomas, supra note 17.

n206. Presently, the Servicemembers Legal Defense Network (SLDN) handles much of the litigation challenging the military's continued
discrimination against gays and lesbians. There is no indication from the SLDN website that the organization is concerned about the
nonwhite racial dimensions of "Don't Ask, Don't Tell." Indeed, much of the website focuses on the experiences of white gay men. See
Servicemembers Legal Defense Network (visited July 13, 2000) <http://www.sldn.org>.