Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [28]
Many gay people have had this experience of the “open secret.” I was gay—she knew I was gay—I knew she knew I was gay. Like mirrors held up to each other, we created an infinite regress of knowledge. But as the literary critic D. A. Miller says, there is a difference between knowledge and acknowledgment of knowledge. Because I would never acknowledge our collective knowledge, she could not do so either. So we carried on—each week more strained than the last. I berated myself, making resolutions to speak, telling myself she would think I did not trust her. While, of course, I did trust her, I felt I had lost the moment. But that had been—when?
Post-Stonewall gay history, too, has such moments of missed opportunity. There is a story—now lore in the gay legal community—about Justice Lewis Powell’s gay clerk when Bowers v. Hardwick was decided. Bowers was the 1986 case in which the Supreme Court held that the constitutional right to privacy did not protect gays from prosecution for sexual intimacy in our homes. Until it was overruled in 2003, Bowers was a massive roadblock to gay rights—not just because it permitted the criminalization of private same-sex sexual intimacy, but also because it licensed other burdens on gays, such as denials of custody or employment.
The decision could easily have gone the other way. Not only was it decided by a five-four vote, but the deciding vote was cast by Powell, who was, at the eleventh hour, on the fence. As described by his biographer John Jeffries, Powell at that point discussed the case with Cabell Chinnis, his most liberal law clerk. Though Powell didn’t know it, Chinnis was gay. In their discussion, Powell said he did not think he had ever known a homosexual. The astonished Chinnis agonized over whether to come out to his justice, but decided against it. He settled on an impassioned plea.
“The right to love the person of my choice,” he said, “would be far more important to me than the right to vote in elections.”
“That may be,” Powell answered, “but that doesn’t mean it’s in the Constitution.”
Powell then cast the deciding vote to uphold the sodomy statute.
After his story became known, Chinnis became a pariah in many gay circles. When I was in law school in the 1990s, I heard rumors that gays in Washington still refused him their homes. I found it hard to believe the animosity against him would be so intense. But according to journalists Joyce Murdoch and Deb Price, he was “labeled a self-hating homosexual, a latter-day J. Edgar Hoover, the devil’s handmaiden.”
Eve Sedgwick explains this anger by juxtaposing the story of the clerk against the Jewish Purim story. In the Jewish tale, King Ahasuerus plans the genocide of the Jewish people without realizing his own wife, Queen Esther, is hiding her Judaism from him. As the king moves on his plan, Esther comes out to him as Jewish, forcing him, in Sedgwick’s words, to balance “the holocaustal with the intimate.” Esther knows the king may resolve his internal conflict against her—she steels herself for death. Yet Esther’s tiny, personal revelation moves the King to revoke his cataclysmic order. In the lineaments of her beloved face, he sees the humanity of the Jewish masses.
Is this not, Sedgwick asks, what many fantasized would have happened if Chinnis had come out to Powell? If Chinnis had put—now in Jeffries’s words—“a familiar face to these incomprehensible urges,” would they not have seemed “less bizarre and threatening”? Justice Powell later admitted he had “probably made a mistake in” Bowers. That confession honed the question—could Chinnis’s revelation have tipped Powell’s vote, tipping the Court away from its most antigay opinion?
Instances closer to hand than the Purim story attest to the transformative power of coming out. Faderman recounts that General Dwight Eisenhower asked WAC Sergeant Johnnie Phelps during World War II to find,