Driving by the Rearview Mirror

Marshall McLuhan, Toronto's electrifying communications theorist, detected that society typically drives into the future with its eyes on the "rearview mirror."¹¹³ Although McLuhan was writing about society's failure to perceive cultural changes fostered by technological advancements, he might as well have been writing about the legal academy's myopia toward the cultural changes produced by LesBiGay identity's commodification. Surprisingly, in the face of mounting evidence that today's LesBiGays are gaining much in the commercial marketplace, today's legal scholars look primarily to the realms of law and politics where LesBiGays are losing much. Despite the heightened visibility and deepened validation that LesBiGays enjoy in advertising, entertainment, private business, and other economic ventures, law professors engross themselves in arenas that render LesBiGays either invisible or illegitimate. Commerce invites the LesBiGay academy to move forward by looking ahead, but until now it has not shifted its gaze away from the rearview mirror.¹¹⁴

McLuhan's indictment may include LesBiGay scholars generally, yet it must point to its suspects for disparate reasons. These scholars typically focus on the state as the vehicle for LesBiGay advancement, but the vehicle is not the same make, model, or horsepower for all of them, and does not carry them over the same routes. Generally, these scholars fall into two groups, labeled here as the "conventionalists" and the "queerfolk." To a degree, the groups are similar in that they both persist in seeking LesBiGay recognition and valorization through politics and law. The two groups differ, however, in their worldviews, normative agendas, and operational methods. Thus, their relationship (or lack of it) to the LesBiGay commodified identity must be distinguished.

The conventionalists hold that liberty and equality for LesBiGays derive from the traditional rights of political citizenship. Trusting in a Western philosophy of civic participation for the common good that dates back as far as Plato and Aristotle, these legal scholars strive to encompass LesBiGays within the circle of effective political power. Civil libertarians such as William Eskridge and Nan Hunter aim to add sexual orientation as a trait for affirmative legal protection, much as race, religion, and gender are treated.¹¹⁵ Taking this conventionalist stance, Eskridge characteristically declares, "[T]he laws we seek will enlist the state as an ally in our struggle against social oppression and . . . will intrude upon private decisionmaking."¹¹⁶