Hofstra Law Review


Nancy J. Knauer


In the political arena, there are currently two central and competing views of homosexuality. Pro-family organizations, working from a contagion model of homosexuality, contend that homosexuality is an immoral, unhealthy, and freely chosen vice. Many pro-gay organizations espouse an identity model of homosexuality under which sexual orientation is an immutable, unchosen, and benign characteristic. Both pro-family and pro-gay organizations believe that to define homosexuality is to control its legal and political status.

This sometimes bitter debate regarding the nature of same-sex desire might seem like an exceedingly contemporary development. However, the ex-gay media blitz of 2000 represents only the latest skirmish in a long-standing battle for ontological hegemony. Over 70 years ago, an opening salvo was launched in the 1928 obscenity trials of Radclyffe Hall's novel THE WELL OF LONELINESS (THE WELL). The novel detailed the life and loves of Stephen Gordon, a female invert, for whom same-sex desire was depicted as an innate, god-given, and potentially noble characteristic. Building on the congenital inversion theories of the early sexologists, Richard von Krafft-Ebing and Havelock Ellis, Hall constructed the first popular articulation of a positive lesbian identity and argued, without apology, for the invert's right to love. Thus, in THE WELL, female inverts are not only subjects - they are juridical subjects. Hall uses a clearly articulated rights discourse throughout the book as her characters assert their right to love and long for the right to protect (i.e., marry) their partners.

Upon publication, THE WELL encountered a hostile counter-narrative of homosexuality as contagion, resulting in sensational obscenity trials on both sides of the Atlantic. Courts in New York and London adjudged THE WELL obscene under the prevailing Hicklin rule, finding that it had the tendency to deprave or corrupt those whose minds are open to such immoral influences, and who might come in contact with it. The media coverage generated by the trials and the attendant moral panic assured THE WELL a position as the most influential lesbian novel of the twentieth century and marked the controversy as a water shed in the development of lesbian identity.

The controversy over THE WELL was also a water shed in the evolution of anti-gay rhetoric. As one of the earliest examples in Anglo-American jurisprudence of the battle between the contagion and identity models of homosexuality, the trials and the larger socio-legal response provide an important link in our understanding of the continuing cultural regulation of the expression of same-sex desire. In particular, they underscore the resilience of the contagion model; the arguments used to suppress THE WELL are strikingly similar to those used today to silence positive images of same-sex desire, relationships, and identities in a wide variety of contexts including, education, public employment, and government funded programs.

Indeed, the objections to THE WELL expressed in 1928 in editorials, court decisions, and other official commentary, articulate the six maxims of the contagion model of homosexuality that pro-family activists continue to advance to this day and that continue to inform a wide range of policy choices and judicial decisions. First and foremost of these maxims is that homosexuality is a freely chosen vice, not a valid medical or scientific category. Accordingly, homosexuals can not excuse their behavior by claiming that they are "born that way." Second, homosexuals prey on innocent victims. This is especially dangerous because "normally sexed" individuals, particularly children or young adults, are very easily lured into experimenting with homosexual practices, thereby accounting for homosexuality's contagious quality. Third, homosexuals have no shame and insist on flaunting their depravity in public. Fourth, the demands of homosexuals extend beyond mere tolerance. Fifth, this a battle to the end for the future of society. Lastly, because homosexuality can so easily infect normal people, particularly children, any public image of homosexuality that is not negative, (including simply the presence of an openly gay individual, such as an assistant scout master or a teacher), sends a dangerous message that must be forbidden, silenced, and repressed.

Today, obscenity laws no longer stop the publication of lesbian romance novels, but state-mandated or enforced spheres of silence continue in numerous areas and play an important role in the on-going regulation of same-sex desire. These areas are not merely remnants of intolerance left over from a less enlightened time. They are hotly contested political sites where opposing understandings of homosexuality vie for supremacy.

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