In November 2008, by a narrow margin, the voters of California passed the California Marriage Protection Act, popularly known as Prop 8. The law limited the state’s recognition of marriage to heterosexual couples. Six months later, two couples—Kristen Perry and Sandra Stier, and Jeffrey Zarrillo and Paul Katami—decided to challenge the law by applying for marriage licenses. Both were turned down. So the couples sued the state of California and its legal avatar, then-Governor Arnold Schwarzenegger, arguing that denying homosexuals the ability to marry violated their constitutional rights.
In the resulting trial, Perry v. Schwarzenegger, which took place in the summer of 2010, witnesses were called to testify on a wide range of topics. Far from arguing narrow legal points, the lawyers for each side posed empirical questions about the nature of homosexuality, and considered angles economic, historical, and psychological. The Perry lawyers in particular seemed intent on rewriting the entire mythology of contemporary gay life: No more drooling fags grabbing each others’ crotches in bathroom stalls; no more swaggering dykes revving their Harleys and pawing at cherry-cheeked girls in petticoats; no more melancholy boys with mirrors trying on mascara and their mothers’ summer dresses. The plaintiffs’ witnesses introduced the court to a New Gay: hardworking, wholesome, and unambiguously gendered; adorably installed in a long-term relationship; too busy volunteering at church and attending children’s soccer games to have time for deviant behavior.
In the muggy last days of that June, while the trial was ending, I was busy wearing out the kindness of a boyfriend. When the boyfriend said affectionate things, I smiled and changed the subject. On Saturday mornings I’d slip out of his bed by nine thirty; on Saturday nights I’d return to my own bed and text him to say I was too tired to make the long subway trek back to his.
Before drifting off to sleep, I would read articles about the trial. One strategy of the prosecution was to let the plaintiffs themselves—their personalities, their histories—make a fresh case for the ability of homosexuals to form successful unions. The two halves of the male couple, Zarrillo and Katami, were affable and settled. Zarrillo had grown up in suburban New Jersey and attended the local high school. He’d worked his way up into the higher management of a movie theater chain. Katami was a fitness instructor and sold his workout videos online. In the transcripts, the two came across as sensitive and comfortably male. They wanted a family, they wanted children, but “Marriage first,” they said. There was an idealistic boyishness about them. They were young.
Kris Perry and Sandy Stier, the lesbian half of the plaintiff quartet, were similarly appealing, and even more family-oriented: they had been together for ten years and were the parents of four children. Perry directed a government agency that provided “services and support” to families with kids under 5. Stier was a farm girl from Iowa who worked in health care. She spent twelve years with an unsupportive, alcoholic husband before meeting Perry and falling in love. When asked how she ended up marrying a man she would later realize she never loved, Stier explained to the court that her mother’s advice about marriage had been unsentimental: “It’s hard work.” “And in my family,” Perry added, “that seemed very true.” According to the transcript, the joke went over well.
During questioning, each woman mentioned her age several times, unprompted. Statements like “I’m 47,” and “I’m a 45-year-old woman,” were a way to quiet skeptics and reassure uneasy listeners. Each of the women was too far along in life to change, and neither was so young as to seem dauntingly sexual. As with Zarrillo and Katami, their sexuality had to be situated just right relative to their gender: Zarrillo and Katami were the sensitive boys; Perry and Stier were the comfortable mothers.
Anti-gay discrimination was real, the plaintiffs said, but it hadn’t twisted them into antisocial fiends. During the trial, Zarrillo, Katami, Perry, and Stier came across as Rosa Parkses, tired after long days at honest jobs. Most of their stories of discrimination centered on everyday awkwardness. A hotel clerk looked at Zarrillo and Katami funny andasked whether they were sure they wanted one bed, not two. A man on an airplane asked Perry whether the seat next to her was saved. Perry told him yes—for her partner. The man decided that Perry had an undue attachment to a business colleague. “Can you please move that so I can sit here?” he testily insisted. Mostly, the plaintiffs were tired of having to explain that, yes, they were in love with another man, another woman. Perry was exhausted, she said, from having to “come out every day”—“at work, at home, at PTA, at music, at soccer.”
To prove a history of discrimination, the plaintiffs’ lawyers might have anthologized the suicide notes of gay adolescents. They might have pointed to American evangelicals’ efforts to push a death-penalty-forhomosexuals bill through the Ugandan parliament. They might have discussed the (at best) indifference and (at worst) calumny that met a generation of gay men in the 1980s and early 1990s when AIDS hit and a vast number of those men were either dying or watching their loved ones die. But the mildness of the plaintiffs’ stories—their non-extremity—was precisely the point. The marrying type of homosexual, they wanted to show, lived a calm, happy domestic life; all he or she lacked was legal recognition of what he or she already had. The expert witnesses, not the plaintiffs themselves, were the ones who testified about the extremity and reality of anti-gay discrimination.
In the end, Judge Vaughn Walker found Proposition 8 unconstitutional. It violated the rights of gay Californians under both the Due Process and Equal Protection clauses of the Fourteenth Amendment. Walker asserted as a finding of fact that homosexuality is a “distinguishing characteristic . . . fundamental to a person’s identity,” like race or gender. He also asserted that same-sex couples are no different from opposite-sex couples—at least not in “the characteristics relevant to the ability to form successful marital unions.” The decision was met with tears of celebration. Judge Walker had said from the bench of the Northern District Court of California what any reasonable person (including, as it happens, Arnold Schwarzenegger, who had come out against Prop 8 back in 2008) might have concluded: gays are decent people; gays fall in love. They ought to be able to marry.
Of course I felt the stomach-flop of joy at Walker’s decision. But in bed alone, surrounded by my books, my clothes, and a few postcards from friends, I wondered whether my habit of sleeping with men was indeed one of my distinguishing characteristics. More distinguishing, say, than my awkwardness around attractive women, my ignorance about sports, or my shameful weakness for Taylor Swift. I also wondered how many of these characteristics could prove irrelevant if it ever came time to form a “successful union.”
During a certain stretch of high school I spent a lot of time with middle-aged gays. In the evening, we would gather in a cluttered rehearsal room above one of our hometown’s beloved community theaters. This was tenth grade. I was playing a prepubescent Australian kid named Colin. Colin learns the meaning of love and family through his friendship with a gay man whose partner is dying of AIDS. I don’t know how many lessons I learned about love and family, but I learned a lot about Kylie Minogue. I felt the same way about this crowd of middle-aged actors as I might have felt about a group of 15-year-old teammates (had I been on a team). It was a noisy, tender fellowship. Easy and electric. Maybe there was a mild charge of sexiness to it, but I wouldn’t have known that at the time.
They were nice to me. I loved being around grownups who would smile so warmly when I smiled, who would make jokes that I might or might not understand, who could be silly and take my own silliness seriously. Grownups who were not teachers, parents, uncles, or aunts. I couldn’t quite manage conversation around my high school lunch table, but I felt comfortable in that rehearsal room, laughing at the banter of these men who seemed to be such good friends, who lived doors down from each other, and who were always putting on shows.
One of these men played my father. He was bald, with impish ears and a round, fleshy head. He had a ready smile and a soft, pinched, wavering voice. The play ended with a father–son reunion, and because of the way we’d staged the scene, the man held his arms around me for a long time. It wasn’t the kind of hug I got from relatives, and it wasn’t like the hug I imagined I might get from a girlfriend. His round belly nestled into my back. And I liked it. He seemed disconnected from the social roles (parent, teacher) that had (for me) defined the adults I’d known until then. He didn’t seem to have a boyfriend or a husband, but he seemed too sweet to be sinister or sad. Feeling his arms around me and his belly against my back didn’t mean anything. It was just nice.
I might interpret the giddy hum of fellowship I felt for the men in the upstairs rehearsal room in a couple of ways. Maybe I liked thembecause I liked the idea of getting along with gays. I could feel politically advanced when I made a joke and they laughed. Or maybe I liked them because it was a relief to feel relaxed in a big group of guys. Guys were usually too loud, too aggressive. Their interactions were all about mockery, about feint and challenge. It was easy to be with these gentler, smiling men.
Informal, imperfect relationships between young gays and old gays have long provided a slapdash, vital, and dignifying—if sometimes confusing—education. Did the men in the rehearsal room, the belly in the back, make me gay? Probably not. But I remember feeling a pang when I got back into my dad’s car at the end of rehearsal. A sad pang, an anarchic pang—the chest-twinge of having a secret from your dad when you can’t quite pin the secret down.
I came out during my freshman year of college—first, by telling my girlfriend of two years. She cried, and then I cried, and then I walked her to the train station. Now that I was officially a homosexual, I searched for a way to mark the transition. What felt different? I frisked my thoughts for homoerotic reverie. I eyed guys coming out of the library and going into the gym and forced myself to wonder which I might most like to sleep with. I forced myself to wonder how the mechanics of that “sleeping” might work. I tried swishing my behind as I walked to the dining hall—did sashaying feel like liberation? Or affectation? I spoke aloud to myself to check if I was sibilating my s’s. I flipped noncommittally through that month’s Out (stored clandestinely in the bottom of a desk drawer), and inspired by its cover went to the Salvation Army to try on button-down shirts a size smaller than usual. I lingered in front of bulletin board postings for the campus LGBTQ organization, and, with warmth in my chest, silently affirmed that here I was, lingering in front of an LGBTQ bulletin-board posting. Yes. They meet Thursdays at 9 PM on Crown Street. Yes.
I never went.
If being gay was strange at first, it was largely because I had no one to be gay with. Then I started hanging out with a guy in my philosophy class. We went to a Holocaust movie, which was a dumb idea for a first date, but then we made out, which was a good way to end a second. An early romantic moment involved sneaking into a construction site; we climbed a filthy scaffolding tower and gazed out over the city’s twinkling skyline. Nights when I slept alone, I buried my nose in the sheets, searching for his smell. “I miss you like England misses its Empire,” he told me, our first summer apart. “Like everyone misses the dodo.” Mutual friends told us we both seemed so relaxed, so ourselves, when we were together. I could not imagine being happier. The self that had been a quiet, closeted bud was growing into a lush, garrulous, comfortable flower. Here was gayness—simple and sweet.
Then things soured. By Easter, the philosopher and I had stopped talking, and I was in another country, kissing strangers on dance floors.
Judge Vaughn Walker was a Republican. Ronald Reagan first nominated him for a federal judgeship in 1987, but Nancy Pelosi and others, who argued, among other things, that Walker was anti-gay, defeated the nomination. George Bush, Sr. renominated him in 1989, and this time Walker was confirmed. In February 2011, six months after his ruling in Perry, Walker retired, and two months later he stated publicly for the first time what many in San Francisco had known for over a decade: he was gay. The Prop 8 proponents promptly submitted a motion urging that Walker’s decision be vacated. A homosexual with a partner of ten years was, they claimed, too interested in the outcome of the case to rule impartially. In June, the motion was denied. “The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision,” wrote Judge James Ware, Walker’s replacement, “is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.” It was as if Perry, et alia, had won all over again.
The thing was, gay couples still couldn’t get married. Walker’s ruling notwithstanding, the Ninth Circuit Court of Appeals told California to hold off performing same-sex marriages until it was clear that these marriages wouldn’t need to be invalidated—again. Prop 8 supporters are still hoping to appeal Walker’s original decision, but the appeal is stuck in limbo because of technicalities of standing: an issue, tellingly, of who has a right to speak on whose behalf. Though Perry, Stier, Zarrillo, and Katami effortlessly became the de facto spokespeople of homosexuals nationwide, the parties who paid the opposing lawyers in Perry v. Schwarzenegger can’t seem to legitimize their claim to speak on behalf of state voters, since now-Governor Jerry Brown has joined his predecessor in refusing to stand behind Prop 8.
Though the legal mechanisms for enforcing Walker’s ruling have stalled, the ruling and others like it have taken effect culturally. The makeover worked. In December, Congress repealed Don’t Ask, Don’t Tell. In February, President Obama told the Justice Department to stop defending Clinton’s Defense of Marriage Act, which bars federal regulation of same-sex marriage. The conservative establishment mostly shrugged. In March, a poll claimed that 53 percent of Americans now support gay marriage. And this June, New York went the way of Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, and Washington DC in deciding to marry same-sex couples. It would seem that gays are freer now than they ever have been, and stand to become even more free. “Race restrictions on marital partners were once common in most states,” Judge Walker wrote in his ruling, “but are now seen as archaic, shameful or even bizarre.” It is becoming clear that someday the same will be said about restrictions on gay marriage.
Laws are supposed to protect certain individual freedoms, regardless of how individuals use those freedoms, and regardless of what a majority says is the decent, safe, or desirable thing to do. Laws aren’t supposed to say anything about the character, culture, or lifestyles of the people whose rights the laws protect. Laws aren’t supposed to tell stories. In a push to change the law, however, the crusaders in the Perry trial turned their case into, in part, an exercise in storytelling. With the arc of history bending their way, the Perry crusaders—like gay marriage advocates across the country—have started to reshape the stories that we tell ourselves about gay life in America. It would be a shame if the gay-marriage debate led to a narrower view of that life’s history and possibilities, rather than a broader one. It’s worth chiming in with what the crusaders thought prudent to leave out.
The plaintiffs in Perry v. Schwarzenegger called social psychologist Letitia Anne Peplau to testify about the similarities between gay couples and straight couples. She offered evidence that, when it comes to standard measures of love, commitment, and feelings of closeness, gay couples are, on average, indistinguishable from straight couples. She offered evidence that, when it comes to factors predicting the stability of a relationship, gay couples are, again, comparable to straight couples. She even offered evidence that, when it comes to arguments, gay couples and straight couples argue about the same things, and about as frequently.
During cross-examination, the defendants’ lawyers focused on the differences. They cited some striking statistics about gay male promiscuity. Peplau herself had reviewed one study in which 71 percent of lesbians, 85 percent of married straight women, and 75 percent of married straight men reported that they believed it was important to be sexually monogamous. Only 36 percent of gay men felt the same way. Two-thirds of gay men, it seemed, didn’t agree with marriage’s most basic tenet.1
Peplau pointed out that forswearing monogamy doesn’t make you an adulterer. Some couples might allow each other to see separate sexual partners on the side (or in the middle, or on top, or underneath). A few questions later, though, the defense lawyers got Peplau to acknowledge another unseemly data point, from a different study: among gay men in self-described “closed relationships” lasting longer than three years, the number who had refrained from engaging “in sex with at least one person other than their primary partner” was zero. Peplau hastened to note that the study looked at gay men in Los Angeles in the late ’70s and early ’80s—before AIDS—and didn’t reflect the proclivities of gay men in Los Angeles, or anywhere, in the 2000s.
Peplau’s point was that the apparent correlation between promiscuity and homosexuality was conditional. If gays had historically been driven to seek multiple sexual partners, this had more to do with a hostile cultural milieu than with homosexuality itself. Being gay had no deep or necessary connection to being promiscuous.
I don’t know what constituted the deep or necessary parts of my self around the time things with the philosopher turned rotten. I do know that my promiscuity served a purpose. Abandoning myself to alcohol and flirtation felt like a salvific, if reckless, kind of machismo. Uncommitted sexual encounters meant self-reliance. I vividly remember leaving the house of a waifish, doe-eyed dancer from Devon who grinned and giggled and wore a ripped army jacket. It was around four thirty in the morning. The sex had been terrible, but outside was a lovely, warmish night. As I waited for the night bus I felt disappointed, embarrassed, and a little frightened. I also felt brave, dangerous, and grown. If picking this guy up earned me my gay cojones, dumping him in the middle of the night turned them to tempered steel. I was playing a role, much like the actors and activists who, during the Perry trial, reenacted courtroom scenes and posted them on the internet. A little broken-hearted and a bunch humiliated over the end of my love story with the philosopher, I reached for a long, cold draft of manly stoicism. Here was a take on homosexuality in the grand American tradition of lonesome masculinity: John Wayne wiggling his hips to Journey somewhere in London’s Soho. It was good to be John Wayne. John Wayne didn’t need an LGBTQ campus group. John Wayne wasn’t a sissy.
The urge to prove that I could stand on my own two manly legs came, in part, from the language of helplessness that pervades most messages of gay acceptance: “It’s okay that you’re gay, because you were just born that way. It’s no one’s fault.” Binging and fucking made my gayness into, yes, a “lifestyle” choice—not just a hormonal tic I couldn’t help. I was a person making choices, not a sexuality unfolding itself.
At the same time, as Peplau’s statistics indicate, my behavior was not exactly unique. Were the majority of promiscuous gay men doing the same thing I was? Trying, I don’t know, to own their selfhoods? Or whatever?
Good postmodernists schooled in the gender studies tradition are right to point out that gender is a construct. (If males from frat house to White House, myself included, would let go of the desire to come off as manly, we’d avoid a lot of heartbreak and collateral damage. We’d also look less stupid.) But the mechanics of sex are different for men and women. In sex between men, there’s a top and a bottom, roles popularly (if politically incorrectly) associated with male and female. From the meager evidence available, it’s not clear whether most gay men tend to “specialize” in one position or the other, or whether partners tend to take turns. In either case, though, the working out of tophood and bottomhood leaves an emotional imprint. It shapes how gay relationships coalesce, and it shapes how communities organize themselves around those relationships.
If, for reasons biological or otherwise, the vast majority of gay men prefer to be tops—or if, as some believe, the vast majority prefer to be (embarrassed) bottoms—then gay communities have good reason for giving up on universal monogamy. Absent any evolutionary motive, there’s no real reason why the distribution of tops, bottoms, and “versatiles” should be even. Where would heterosexual marriage be if the world population suddenly skewed 70 percent female and 30 percent male? Straights and, by some accounts, lesbians can pair off; to whatever extent sex preferences are lopsided among gay men, the banal calculus of libidinal mechanics might be driving those men to polyamory.
The fact is that gays haven’t always paired off into happy couples. There have long been places where it was messier than that. Even in the 1980s—an era of homosexual mortality that gay-marriage supporters pay homage to but don’t want to talk about—a surprisingly interconnected group of men were fucking and falling in love and arguing and sleeping in each others’ arms and making art and going to work in suits and cooking meals together and reading Proust, or Baldwin, and doing drugs and going to church and dying. They improvised a network of connections erotic, emotional, familial, or what have you. A web of friends, old friends, once-friends, mentors, surrogates, lovers, almost lovers, ex-lovers, lost souls, loose cannons, patrons, pickups, dropouts, healers, strippers, gods; all contributing to a social fabric—call it tulle, or cashmere—in which a clear distinction between love and friendship, eroticism and warmth, loving and fucking, couldn’t quite exist. Versions of that fabric existed long before AIDS, before Stonewall, and versions exist today.
Back in 1999, queer theorist Michael Warner wrote that gays lack “the institutions for common memory and generational transmission around which straight culture is built. . . . And since the most painfully instructed generation has been decimated by death, the queer culture of the present faces more than the usual shortfall of memory.” I’d hardly propose that we use the legal record as a makeshift repository of collective queer memory. But I’d hope that a gay community trying to remake the legal record wouldn’t set aside that memory, either.
I think of a clearing on a ridge in central Tennessee with a circle of memorials dedicated to queers who’ve passed. It’s quiet there. Trinkets, photos of young faces under cracked glass, and beaded wire sculptures—all faded from rain—adorn the circle of propped stones. “What means death in this rude assault?” says one. “Deva Raj—Death Don’t Take Away Our Love,” says another. A third is carved with a deep, handsome, glittering “S.”
In Perry, the plaintiffs argued that gayness is a biological kink that simply substitutes one gender for another within an otherwise universal mechanism of desire. The lawyers insisted with dogged humorlessness that it is possible to separate the homosexual dancer from what has been—if only historically, as Peplau maintained—the homosexual dance. Fine. But the resulting portrait, so stripped, is not a particularly useful one. Take away everything that’s not foretold in my genes and you’ll find me a meager specimen—all hunger, sleep, and hormone. Our histories, our habits, and our choices are as “fundamental,” as “relevant to the ability to form successful marital unions,” as anything else about us. I’m made by that late night on the deserted streets of South London, and I’m made by promises exchanged with people I’ve loved. It’s no less true to say that gay individuals and communities are made by decades spent negotiating nonstandard models of love and family. In his ruling, Walker may be talking about legal status, but he’s also trying to talk about history, and about love.
In the late summer of 2010—the P. v. S. summer—I disentangled myself from job obligations, sublet my bedroom, and made plans to leave for a different city. The boyfriend, the one I’d been flighty and evasive with, had finally given up on me. In the new city, I went to museums and markets. I wandered around. One night I met up with someone I’d been introduced to by a mutual friend. He was handsome, he was gay. Four beers into the night we decided to change bars.
He walked his bike and I wobbled along beside him. Boozed into the saddle of my hobbyhorse of the moment, I tried explaining why I was so bothered by Perry v. Schwarzenegger. He’d already heard, in one form or another, a lot of my arguments. He knew his queer theory, he’d listened to the radical nonassimilationist screeds, he’d written essays about tranny performance artists. But I kept talking. I told him how I thought casual sex was a great way to begin friendships, that I’d had a handful of totally unexpected friendships begin that way, with casual sex, with some kind of unanticipated physical intimacy, and how I was really grateful for those friendships, how I felt deeply connected to those people. He locked up his bike. We went into a new place, sat down, ordered. I told him about a radical queer commune I’d visited, about the stories I’d heard and friendships I’d seen there, gorgeous and perverse and durable as hell. I didn’t tell him about my parents’ recent separation, but I told him that I thought the whole Find-a-Someone, Marry-Him, and Settle-Down-Till-the-End thing was a sure recipe for emotional and intellectual rot. Meaning accrues between people over time, I said—sure. Sure, it accumulates like detritus on a beach from the perpetual assault of surf on sand, time on life. Are we supposed to think that marriage is the only way that happens? What about all the other people we rub up against in life?
This new friend listened very patiently. Sometimes he’d challenge me, sometimes he’d ask me to clarify, and sometimes he’d just listen and smile.
I went on: We become who we are through connections with so many people. Herpes isn’t the only thing you carry from one sexual partner to another. You can carry a way of touching, a rhythm of kiss, a habit of kindness. The transfer is unstable, and infinitely complicated. To sleep around—and here I was really on a roll—is to risk contaminating one sexual encounter with the memory of another, to endanger the sense that lovers meet soul to naked soul, in a gorgeous noncontextual vacuum for two. Maybe I’ll fall hugely and gorgeously in love, here in this city, or in some other one, I said. Real love. But could a reedy-voiced promise (Never again! No one else!) ever do justice to that? Promiscuity helps us admit that people are made and remade each day by the choices they make regarding friends, strangers, and acquaintances; and that friends, strangers, and acquaintances are always making their way, somehow or another, into the exalted space between lovers. It helps us—I concluded, grandly, with a flushed look into his face—to embrace contamination as a part of being human on a crowded, messy planet.
The bar was filled with a warm, yellowish light. Couples were laughing together at the surrounding tables. It was close to four in the morning. We paid and left. My apartment was far away and the subway wasn’t running anymore, so we walked back to his place, past vacant, glowing kabob stands and metal-shuttered shops. Up three flights of stairs. We stood in his kitchen and gulped water. Glasses empty, placed in the sink. A shuffle of smiles and puzzled looks and sentence fragments. Who are you, mister, and what do you want from me tonight? Two drunk twentysomethings with lots of serious thoughts. He started to say something, and I started to answer. Then he climbed into his bed and I settled down under a blanket on his couch. We slept till noon and got up blinking, smiling, uncertain what we’d agreed to the night before, and uncertain what we’d promised for the day. We put on our shoes and went to market together. We bought parsley, peaches, onions, and cinnamon.