In this second part of our two-part series with Linda Hirshman, we ask the Victory author about some of the points in her recently-released tome on modern LGBT history. We wanted to know why Hirshman is in thrall with ACT UP and why she believes Romer v. Evans is the most monumental court decision in the movement. The writer, lawyer, and pundit also explains how that decision could affect future rulings on marriage equality, and why activist Richard Socarides bristled at Victory's title. Also, see who she thinks is worthy of their own Victory spin-off book. Click here to read the interview's first half.
The Advocate: At the advent of AIDS, many gays resisted changing their sex lives. Was it simply intransigence or a feeling that they were being forced to subvert part of their identities?
Hirshman: As I say in the book, I think such a large group of people have the full range of feelings about something as individual and important as one's sex life, so all of the above. What I found politically interesting was the suggestion that unlimited sexual choices and behavior was constitutive of some peoples' identities and of the group's identity. At least among middle class gay men, however, as the word spread, it turned out that most, not all, realized it was the right to decide that mattered, i.e., that they should have the right to decide what sex life to lead. Once they took control of the decision, the obvious cost/benefit analysis kicked in and as near as we can judge the infection rate began to go down. And of course the identity did not disappear at all, it just grew stronger under the challenge.
You devote a lot of ink to ACT UP, more so than what's given to groups like the National Gay and Lesbian Task Force or the HRC. Why?
I am interested above all in acts of successful political mobilizing. I focused on the Task Force for the lesson it held at the time it was formed — the turn to single focus, mainstream, conventional political behavior; ditto for the HRC. Once the political lesson of the TF and HRC was drawn, there was no point to endlessly repeating it. Covering everything everybody did all the time would have made everybody happy, but Victory would then be just another one of those doorstop books nobody reads. Although you may notice that when HRC did something unusually productive and original, like the black tie dinners where Harry Reid met Dan Choi and the campaign against King & Spalding (a law firm that initially defended DOMA), I did pay close attention to it. ACT UP is widely acknowledged to have been a sea change in political organizing gay and not gay — the intensity, the structure, the management of diversity, the creativity. Not since the Students for a Democratic Society, which I also spent a fair bit of time on, did political organizing change in kind and not just in degree.
Tell us about the significance of the three-pronged argument used by the plaintiffs in the Supreme Court case of Romer v. Evans, which successfully overturned a Colorado law that banned all protections for LGBT people. Will it be utilized again when DOMA or marriage equality reaches the high court?
I believe Romer is the fount of all gay legal strategy. If you look at any of the Prop. 8 pleadings or argument, they are essentially Romer. As Larry Tribe said at the time, had Romer gone the other way, it would have been Dred Scott next. That said, the DOMA challenge and the Prop. 8 case both include some legal issues not present in Romer, such as the impropriety of the federal government arrogating the definition of marriage from the states against centuries of contrary tradition, not for any compelling constitutional reason, but just, as Romer says, out of distaste. Or in Prop. 8 the taking away of recent rights, which was the basis of the appeals court decision. If the court focuses on that narrow point, it will be a small v victory for the outcome, but not a grand victory like a pure marriage equality decision would be.
If the court takes up marriage equality next, as in one of the DOMA cases or in the Prop. 8 case, the arguments will look very much like Romer. That the government is imposing a disadvantage in a crucial area of human life against an historically marginalized group and with absolutely no cognizable evidence of social harm. One difference is that, since Romer, these three strands of argument have become intertwined. Rather than proving gays to be a suspect classification, the best analysis now says look at all three dynamics. Is the government acting in a crucial area, against a marginalized group, etc. It becomes a synergy. This makes sense to me, because we're really, as Romer implicitly recognized, talking about fundamental citizenship in the liberal state. I do love Romer.