Vol. 10 No. 7 (July 2000) pp. 410-412.
IDENTITY AND THE CASE FOR GAY RIGHTS: RACE, GENDER, RELIGION AS ANALOGIES by David A. J. Richards. Chicago: University of Chicago Press, 1999. 234 pp. Cloth $35.00. Paper $14.00.
Reviewed by Martha T. Zingo, Department of Political Science, Oakland University.
The central argument posited by David A. J. Richards in IDENTITY AND THE CASE FOR GAY RIGHTS is that the most compelling model for the case of gay right is provided by religious toleration associated with the First Amendment of the U.S. Constitution. Although Richards is not the first scholar to suggest that the religious analogy might be useful in advancing the cause of lesbian and gay rights, he is the first to coin the term "moral slavery" and apply it to the social and legal condition of lesbians and gays. Moral slavery" is defined as "the structural injustice marked by both its abridgement of.basic rights to a certain class of persons and the unjust enforcement at large of irrationalist stereotypical views whose illegitimate force has traditionally degraded the class of persons from their status as full bearers of human rights" (p. 56). Through this concept, Richards makes a convincing argument that, although race and gender provide partial models for achieving gay and lesbian rights, the civil rights struggles of groups based on race and gender are incomplete for purposes of protecting gay and lesbian identity.
Each of the four chapters in Richards' book provides an overview of the applicability of a specific analogy (race, gender, and religion) to sexual orientation. In chapter one, Richards explores the correlation between the discrimination experienced by African-Americans and that experienced by gays and lesbians in the United States. Although Richards readily concedes that gays and lesbians do not suffer from all forms of denigration suffered by African-Americans, he observes the commonality of their moral subjugation. He establishes that the race analogy is relevant to the cause of gays and lesbians insofar as it embodies "the imposition of a cultural identity of dehumanizing self-contempt resting.on structural injustice" (p. 38). From his perspective, discrimination based on race or sexual orientation has at its core state complicity, since the state gives legal effect to the cultural dehumanization of its citizens. The state bears moral responsibility for violating the Equal Protection Clause of the Fourteenth Amendment by perpetuating an unconstitutional system that irrationally excludes citizens from full political membership in society. Although only race is a suspect classification under the juridical interpretation of Equal Protection analysis, Richards maintains that immutability and salience neither explain the suspect classification of race nor deny such classification of sexual orientation. Instead, he maintains, it is "the focus on political expression of irrational prejudices.rooted in a history and culture of unjust exclusion of certain groups from participation in the political community" (p. 11) that is central to the principle of suspect classification
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analysis. In this respect, race discrimination is akin to religious intolerance since "the evil of such prejudice lies in its systematic degradation of identifications at the heart of free moral personality" (p. 15).
Chapter two expands the correlation between race and sexual orientation by exploring the analogy of gender. Richards demonstrates how, through the degradation of identity and the denial of rights of conscience, individuals have been systematically dehumanized as a non-human or inhuman species based on race, sexual orientation, and gender in the United States. Step-by-step Richards builds a solid case for the conceptual linkage between identities based on race, gender, and sexual orientation and the normative views and cultural constructions that systematically rationalize discrimination based on any of these identities. He grounds his arguments in the rights-based claims to identity embodied in both anti-racist and anti-sexist struggles. It is against a backdrop of structural injustice that Richards establishes the ways identity lies at the heart of constitutional concern. By lending the force of law to theological ideas, the constitutional culture, which the Supreme Court shapes and molds, transmits and reinforces race, gender, and sexual orientation "moral slavery." Although "the protection of intimate personal life must be one among the basic human rights.worthy of protection" (p. 78), this fundamental right is consistently denied on the basis of race, gender, and sexual orientation due to the moral enslavement of specific groups of individuals.
Chapter three moves to the religious analogy and the argument for toleration, which lies at the heart of Richards' argument. He is convinced that U. S. constitutional principles forbid the state from acting as an agent to construct "a class of persons lacking the status of bearers of human rights, a status so subhuman that they are excluded from the minimal rights and responsibilities of the moral community of persons" (pp. 115-16). He addresses the intolerance cloaked in the rhetoric of religion, which is itself violative of the basic constitutional principles of conscience and intimate life. He then refutes the various sectarian religious positions used to justify the unconstitutional expression of religious intolerance in public laws in areas such as anti-lesbian/gay initiatives, exclusion of lesbians and gay men from the military, and denial of same-sex marriage.
In his final chapter, Richards reiterates his position that just as race and gender fail to fit conventional suspect classification analysis with regard to immutability and salience, so too does the case for lesbian and gay rights. Classifications based on race, gender, and sexual orientation, however, do share with religion the fact that classes of persons were, and continue to be, dehumanized by means of stereotypical images These images effectively deny respect for their moral powers and abridge their basic human rights.
The only solution, according to Richards, is for rights-based constitutional law and government to eliminate these affronts in both the public and private spheres. This in turn requires that the right to liberty of conscience and its prerequisite of moral independence "to undertake and meet this responsibility free from the unjust imposition of sectarian views" (p. 196) be respected and protected by both the government and the law regardless of one's identity.
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Overall, Richards has succeeded in writing an extremely readable, yet well argued, book. His legal analysis is sophisticated and challenging, especially concerning suspect classification analysis, while his philosophical examination of the principle of toleration is thought provoking. His prescriptive model that expands the category of suspect classifications to include sexual orientation is one worthy of careful consideration. Moreover, his ability to preserve the dual ideas of identity and choice in the realm of sexual orientation and to link these ideas to the constitutional principle of religious tolerance is both compelling and provocative. Individuals already familiar with Richards' scholarship will find that IDENTITY AND THE CASE FOR GAY RIGHTS skillfully builds on the approach to constitutional law he previously developed. This book, however, easily stands alone and will be a welcome addition to the library of individuals interested in civil rights issues.
Copyright 2000 by the author.