The Issues Governor McGreevey's Resignation Raises:
Stigma, Acceptance, and the Difference Between Legal and Social Change

By EDWARD LAZARUS

Thursday, Aug. 19, 2004

This week, New Jersey Governor James McGreevey made headlines when he announced that he is resigning.

McGreevey resigned amid charges that he had sexually harassed the man he had appointed, despite slim qualifications, to be the state's director of homeland security. Apparently, the now-departed appointee, Golan Cipel, had given the Governor the choice of being exposed through a lawsuit or of making some kind of payoff. But McGreevey decided on a third option: to announce, surrounded by his wife and family, that he is a "gay American," to admit an affair with (though not harassment of) Cipel, and to resign effective in November.

In many respects, the McGreevey story is banal, if unusually sordid. Gay or straight, it is a cardinal rule of public officeholding that you cannot put your underqualified clandestine lover (willing or unwilling) on the public payroll -- especially not at $100,000 a year. If you get caught, as McGreevey has, you're finished politically -- and you deserve to be.

But McGreevey has made his story both unusual and important by casting it as the tale of a secretly gay public official - someone who masqueraded as heterosexual for his whole adult life - who was undone less by his obvious ethical lapses, than by the necessity of hiding his true sexual identity.

For a straight official, the tale might have been: Husband cheats, he gets he caught, leaves office. But for McGreevey, it's more like this: Society forces husband into the closet, and once there, he's vulnerable to blackmail. But if society were different, he would have married a man, wouldn't have cheated, and would still be in office. So who is really most at fault: McGreevey or society?

Coming as this does in the midst of a national debate over gay marriage, the McGreevey scandal forces some consideration of the larger social context that created this tortured soul. It also raises the most vexing questions that accompany any movement for social change: How are societal attitudes shaped? And how long does it take for social stigma to morph into social acceptance?

Destroying Stigma and Fostering Acceptance: Not By Law Alone

Earlier this year, the legal community considered similar questions in a different context. On the 50th Anniversary of Brown v. Board of Education, a main topic of discussion was whether this landmark legal decision, in declaring segregation in public schools unconstitutional, actually had much effect on social attitudes regarding race.

Some very respectable scholars opined that the Supreme Court -- by unanimously denouncing the doctrine of "separate but equal" and by putting the Court own moral authority behind the concept of racial equality -- made a seminal contribution towards public acceptance of blacks as full and equal members of the American community.

But as I discussed in an earlier column, other equally respectable scholars took the opposite view. As they see it, Brown catalyzed remarkably little racial progress.

At most, these scholars assert, Brown advanced the cause of blacks by provoking such an ugly backlash in the South that moderate whites in the North embraced civil rights - doing so out of a sense of revulsion at the Bull Connor tactics that Southern officials used to maintain their system of racial subjugation.

Underneath this debate lay an ever larger question. In the fifty years since Brown, how much progress has the United States really made in changing the mindset of bigotry, ingrained for centuries, on which segregation and other forms of race discrimination are built?

Here, too, a considerable debate rages. Some see enormous progress towards racial equality, not only in the formalities of law but in the deep tissues of society. Others view the changes of the last five decades as largely superficial and as masking still active and powerful racial animosities.

The Next Debate: How Much Progress Did Lawrence v. Texas Spur?

Fifty years from now, I expect scholars will be conducting a similar debate over gay rights. And instead of assessing Brown, scholars will be assessing the Supreme Court's 2003 groundbreaking decision in Lawrence v. Texas.

There, the Court, overruling its previous decision in Bowers v. Hardwick, recognized that the Constitution contains a right to define and act upon one's sexual preferences free of state-sponsored discrimination.

But no matter how powerful its moral message, or how laudable the Court's decision, Lawrence - like any legal decision or set of legal decisions - has its limit: That limits is that it will not have a magical power to change hearts and minds.

As a nation, we have developed the habit of looking to the Supreme Court as a leading expositor of moral and political virtue. Whether the issue is race, the death penalty, abortion, or religion in the public square, the nine Justices have become the keepers of the nation's legal conscience.

But if our experience with race discrimination is any guide, the Court's moral authority reaches only so far.

Why the Supreme Court's Moral Authority Is Powerful - But Limited

To look at the limits of the Supreme Court's moral influence, it's first necessary to consider how that influence occurs.

First and foremost, Court decisions, by defining the legal landscape, can and do alter patterns of public conduct. And over time, changes in public conduct can also change internal attitudes.

Desegregating restaurant lunch counters may have only a small immediate social effect. But over time, the quotidian process of blacks and whites breaking bread at the same locale tends inevitably to break down tired old assumptions and attitudes.

Particularly when it comes to access rights, experience may foster equality: When a wheelchair ramp allows a disabled employee to work with others, his colleagues may understand how capable he is despite his disability - and come to support disability rights. Prejudice is harder to maintain one cubicle over, than from a safe and ignorant distance.

Court decisions can also play a substantial role in driving certain social attitudes underground - by making them shameful. Brown and the decisions that followed it made overt racism unacceptable in polite company - and this process of stigmatizing bigotry, too, can affect personal beliefs over the long run.

But changes in law and judicial pronouncements from on high cannot thoroughly re-order private behavior. Brown and its progeny could not stop urban whites from fleeing to the suburbs or to parochial schools to avoid desegregated city schools. Nor could these decisions make realistic (then) the prospect of an African-American President. Nor could they stop the thousands of daily race-based slights that still infect American life.

Overall, private attitudes are less the product of legal decisions than of upbringing and experience. Court decisions are no substitute for the recognition of common humanity that comes from regular and consistent personal interaction, the sharing of the triumphs and tragedies that make up life.

In the arena of race, the re-segregation of schools and neighborhoods continues to rob us of too many opportunities for such interracial experience. Remarkably, the greatest engine for racial harmony in American life may be the melting pot of the armed forces, where young people of every color risk everything together.

A Cautionary Tale for the Gay Rights Movement: Law Is Only Part of the Battle

In all this, there is a cautionary tale for the gay rights movement.

I would be surprised if, in 2053, my children were not living in a world where gay couples enjoy the same legal rights as straight couples. Surely, between then and now, there will be many setbacks in specific areas (such as in the current fight over gay marriage). But eventually Justice Antonin Scalia and those of his mindset will lose this battle of the kulturkampf.

Along the way, all or virtually all state legislatures will give - or be judicially required to give -- gays the same health benefits, survivor's rights, or parental rights enjoyed by heterosexuals. In many states, I bet gays will also be allowed not merely "civil unions," but "marriage."

But the distance between this world and that can hardly be overstated.

At the moment, while Republicans use code words to win support among anti-gay bigots, the Democratic Party is dodging every which way to avoid catching the hot potato of gay marriage. And remember, it was Bill Clinton -- a Democratic President, and a personally open-minded one - who created the "don't ask, don't tell" rule within the military. Sadly, that rule demands the very kind of secrecy and subterfuge that brought down Governor McGreevey, while inhibiting the normalization of gay/straight relations.

Indeed, the biggest challenge for gay rights over the long run will probably not be winning formal legal equality before an elitist bench of federal judges - that will come in time, though perhaps in fits and starts. Instead, it will be in creating true social equality by establishing a near universal acceptance of homosexuality as not just unobjectionable, but unexceptional. "Tolerance," too, is not quite acceptance. But acceptance is the ideal.

The McGreevey incident has provided an interesting benchmark to measure our progress. In 50 years, will it be possible for someone to announce that he is a gay American when embarking on a campaign to be Governor of New Jersey? Or will such announcements still be reserved for those packing their boxes while beating a hasty retreat from public office?

Will gay persons with political aspirations often feel compelled to stay closeted? Or will lives be able to be lived openly, even by politicians? When we ask politicians to be open and honest with us, we should begin to truly mean what we say.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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