See, e.g., Lisa Penaloza, WE'RE HERE, WE'RE QUEER, AND WE'RE GOING SHOPPING! A CRITICAL PERSPECTIVE ON THE ACCOMODATION OF GAYS AND LESBIANS IN THE U.S. MARKETPLACE, IN GAYS, LESBIANS, AND CONSUMER BEHAVIOR: THEORY, pRACTICE AND RESEARCH ISSUES IN MARKETING 35-36 (Daniel L. Wardlow ed., 1996) (noting that in propaganda supporting Colorado's Amendment 2, the Coalition for Family Values cited the Simmons Market Research figures to argue that LesBiGays were not economically disadvantaged and needed no legal protection against discrimination).

517 U.S. 620, 645-46 (1996) (Scalia, J., dissenting) ("[B]ecause those who engage in homosexual conduct tend to...have high disposable income,...they possess political power much greater than their numbers, both locally and statewide.")

The Human Rights Campaign website tracks, inter alia, the states that ban private sector employment discrimination based on sexual orientation. Human Rights Campaign, Discrimination in the Workplace, at http://www.hrc.org/worknet/nd/states_ban_dso.asp (last visited Oct. 28, 2001).

For a list of the forty-five individuals currently holding federal, state, and local offices who openly identify as LesBiGays, see The Gay & Lesbian Victory Fund, at http://www.victoryfund.org/public/office/office.cfm (last visited Oct. 28, 2001).

Elizabeth Becker, Wariness and Optimism Vie as Gays View New President, N.Y. TIMES, Jan. 26, 2001, at A1, A16 (reporting Voter News Service exit poll estimates and Republican Unity Coalition breakfast).

Frank Rich, The G.O.P.'s Age of Aquarius, N.Y. TIMES, Aug. 5, 2000, at A15.

Id.

Becker, supra note 23.

David Johnston & Neil A. Lewis, Ashcroft Faces New Criticism over Stand on Ambassador, N.Y. TIMES, Jan. 26, 2001, at A16; Press Release, Human Rights Campaign, HRC Opposes Ashcroft Nomination for Attorney General: Long Anti-Gay History Raises Concerns that Ashcroft Won't Enforce Civil Rights Laws (Jan. 9, 2001) (on file with authors) (expressing deep skepticism over Ashcroft's ability to administer the Office of the Attorney General in a fair and impartial manner, based on HRC's review of Ashcroft's anti-LesBiGay votes during his Senate term and anti-LesBiGay commentary on the Senate floor); see also Stephen Barr, Bush Administration Remains Aloof From Gay Pride Events, WASH. POST, June 13, 2001, at B2 (after President Bush refused to follow his predecessor William Clinton's practice of issuing a Gay & Lesbian Pride Month proclamation, the Secretary of Commerce Donald Evans ended the department's sponsorship of LesBiGay activities).

More Companies Offering Same-Sex-Partner Benefits, N.Y. TIMES, Sept. 26, 2000, at C2.

An equally powerful trend, though interpersonal in nature, is the "nudging" that the LesBiGay partners are receiving from their parents, who no longer believe that their LesBiGay children cannot bear fruit or adopt grandchildren for them. As Cyndi Harrison, a nurse practitioner living with her partner in Los Angeles, complained: "My mother keeps telling me, 'Come on, where's the grandchild?" ' John Leland, O.K., You're Gay. So? Where's My Grandchild?, N.Y. TIMES, Dec. 21, 2000, at F1; see also Steven Gray, New Families, New Questions; Same-Sex Couples Turn to Parenthood in Growing Numbers, WASH. POST, Apr. 12, 2001, at T10.

Even so, this progress has triggered a backlash in four states: Florida, Mississippi, and Utah prohibit same-sex adoption, and Arkansas denies foster parenting to LesBiGays. John Leland, Parents' Rights: State Laws Vary, But a Broad Trend is Clear, N.Y. TIMES, Dec. 21, 2000, at B14. (De facto parents are those who, without second-parent adoptive status, are recognized to have contributed significantly to the raising of a child.) In Florida, federal district court Judge James Lawrence King recently upheld the state's ban on LesBiGay adoptions, the first such ruling in the federal judicial system. Lofton v. Kearney, No. 99-10058-CIV-KING, 2001 U.S. Dist. LEXIS 13425 (S.D. Fla. Aug. 30, 2001); see also Tamar Lewin, Court Backs Florida Ban on Adoption by Gays, N.Y. TIMES, Aug. 31, 2001, at A14.

Bruce Bawer, More Respect, but Too Few Rights, N.Y. TIMES, Jan. 26, 2001, at A19 (reporting the Los Angeles Times survey).

See Press Release, Human Rights Campaign, HRC Calls on Congress to Pass Comprehensive Hate Crimes Legislation as FBI Releases Final Report Detailing Problem (Feb. 13, 2001). Such a sharp one-year increase in reported hate crimes based on sexual orientation is particularly disconcerting, given that overall violent crimes decreased for an eighth consecutive year and that FBI data fail to include statistics on all the notoriously underreported hate crimes based on sexual orientation. Id. For 1999, hate crimes based on sexual orientation ranked third as a category, following race and religion. The federal Hate Crimes Sentencing Enhancement Act and other federal civil rights legislation still do not include LesBiGays as a class deserving governmental protection. Hate Crimes Sentencing Enhancement Act, 28 U.S.C. §  994 (1994).

Bawer, supra note 31.

AMY GLUCKMAN & BETSY REED, Introduction, in Homo Economics, supra note 18, at xiii.

For the latest incisive account of the new LesBiGay visibility in America's commercial culture and of the debate over the political and social meanings of that visibility, see generally SUZANNA DENUTA WALTERS, ALL THE RAGE: THE STORY OF GAY VISIBILITY IN AMERICA (2001).

Hazel Kahan & David Mulryan, Out of the Closet, AM. DOMGRAPHICS, May 1995, at 40.

Penaloza, supra note 19, at 10.

David Kirby, The Web's User Profile Undergoes a Broad Transformation, N.Y. TIMES, June 7, 2000, at H42.

Press Release, Human Rights Campaign, Number of Employers Offering Domestic Partner Benefits Jumps Dramatically in One Year (Sept. 25, 2000); see also Human Rights Campaign Web Site, at http://www.hrc.org/mainset_worknet (tracking, inter alia, private employers' provision of domestic partner benefits).

William L. Hamilton, When Intentions Fall Between the Lines, N.Y. TIMES, July 20, 2000, at F1 (quoting a statement of the editor of Ad Age's Creativity, an advertising industry publication).

Historically, the first advertiser to jump on this bandwagon was Win-Mor, whose October 1954 ad, pitching to men the sale of "festive intimate apparel--available with or without rhinestones," appeared in the publication ONE. Pressed with obscenity charges for its homophilic content, ONE ultimately prevailed before the U.S. Supreme Court after a four-year long struggle. ALEXANDRA CHASIN, SELLING OUT: THE GAY AND LESBIAN MOVEMENT GOES TO MARKET 58- 59 (2000).

Absolut Vodka has continued to be a leader among marketers in aligning itself with LesBiGay causes. A recent campaign to appear in mainstream national magazines, "Absolut Glaad," celebrates the work of the Gay and Lesbian Alliance Against Defamation ("GLAAD"). Jim Schleifer, the marketing director for Absolut at Seagram Americas in New York, noted that the ad was symbolic of "a longstanding commitment to this marketplace." Stuart Elliott, Absolute Customizes a Campaign to Salute the Gay and Lesbian Alliance Against Defamation, N.Y. TIMES, Feb. 22, 2001, at C6.

AMY GLUCKMAN & BETSY REED, THE GAY MARKETING MOMENT, IN A QUEER WORLD, supra note 18, at 519, 520-21. In 2001, Jaguar, Volkswagen, and Volvo joined their competitors in steering their advertising dollars toward LesBiGay national publications. Subaru, which had sponsored LesBiGay award ceremonies and causes and had advertised in LesBiGay media since 1997, placed one of the sassiest ads of all the carmakers, encouraging their readers to explore the great outdoors with the clever injunction "Get out. And stay out." Cliff Rothman, A Welcome Mat for Gay Customers, N.Y. TIMES, Aug. 17, 2001, at F1.

BAKER, supra note 18, at 11, 17 (a television ad featuring a gay couple shopping for a dining room table played in four major markets: New York, Los Angeles, Philadelphia, and Washington, D.C.).

William L. Hamilton, When Intentions Fall Between the Lines, N.Y. TIMES, July 20, 2000, at F1, F4 (reporting that Michael Wilke, a former reporter at Ad Age magazine, coined the term "gay-vague" for advertisements targeting both LesBiGay and mainstream audiences); CHASIN, supra note 41, at 140-41.

Spending Increases in Gay Magazines, N.Y. TIMES, June 12, 2000, at C16.

Unfortunately, hard statistics are not similarly available for this recent trend of purposefully ambiguous commercial advertising.

BAKER, supra note 18, at 11, 13.

Kahan & Mulryan, supra note 36, at 40 ("[G]ay men and lesbian women show their gratitude to marketers who have the courage to serve them. In return for what they see as acceptance or respect, gay consumers will go out of their way to patronize these companies.").

Per Larson, GAY MONEY, VICTORY!, Jan./Feb. 1996, at 12-13 (defining  "A-Gays" as LesBiGays who maintain social status in large part through high-style consumerism).

Nancy Coltun Webster, Playing to Gay Segments Opens Doors to Marketers, ADVERTISING AGE, May 30, 1994, at 6.

GLUCKMAN & REED, supra note 43, at 519.

Bradley Johnson, Far Right Attacks Losing Out to $$, ADVERTISING AGE, May 30, 1994, at 7.

Interestingly, one of these rules, at least in the context of the advertising executive workplace, may still be "don't ask, don't tell." Reports Jack Sansolo, one of the first major executives of a mainstream advertising agency to come out of the closet with few to follow in his footsteps: "Clearly, there are a lot of gay people in senior positions [at advertising agencies]. But you still don't see a lot of them coming out." Stuart Elliott, Advertising: An Informal Survey Finds Don't Ask, Don't Tell Is Still Observed on Madison Avenue, N.Y. TIMES, June 26, 2000, at C16. But, Thomas Cott, president of New York's "Out Professionals," delivers a more hopeful perspective: "The younger generation is a lot more comfortable with being out....[T]here's now more support for people who come out." Id.

Johnson, supra note 53, at 7 (quoting Ms. Torie Osborn, former National Gay and Lesbian Task Force executive director). For a collection of print advertisements and television commercials featuring LesBiGays around the world, see The Commercial Closet, at http://www.commercialcloset.org (last visited Oct. 28, 2001).

See VITO RUSSO, THE CELLULOID CLOSET: HOMOSEXUALITY IN THE MOVIES  (rev. ed. 1987). Russo's book, arguably the definitive historical account of homosexuality in cinema, has been rendered in an impressive film that features a host of celebrity narrators. The Celluloid Closet (Columbia/TriStar Studios 1997). Similar to the dynamics operating in Madison Avenue executive offices, see supra note 54, "[t]here is widespread agreement in Hollywood that if an actor aspires to the kind of visibility and clout currently enjoyed by [Tom] Cruise or Tom Hanks or Julia Roberts in movies, or Oprah Winfrey on television, he or she had better stay in the closet--at least for now." Richard Natale, A Glimpse Outside the Closet, L.A. TIMES, July 15, 2001, at 4.

THE CHILDREN'S HOUR (Metro-Goldwyn-Mayer 1961). Based on LILLIAN HELLMAN'S 1934 play, the film features SHIRLEY MACLAINE in the unflattering role of a girls' school marm who tearfully confesses love for her cosupervisor, played by AUDREY HEPBURN. At that point, of course, there is no other solution for MACLAINE than to hang herself.

THE BOYS IN THE BAND (Twentieth Century Fox 1970). Putting aside the historical importance of one of the earliest major studio productions to focus entirely on gay characters, few movies have pictured an entire group of same-sex friends in as bleak or unforgiving a way. From one moment of sturm und drang to another, the film reveals each character's multiple layers of personal dysfunctionality, until the viewer is left to wonder which one is the most bitter, angry, isolated, lonely, despairing, or irreparably damaged.

LA CAGE AUX FOLLES (United Artists 1979). Based on the hit play of the same name by JEAN POIRET, this zany, warm-hearted French farce about an aging transvestite and his partner, who are guilt-tripped into portraying a straight married couple in a social situation that goes from bad to worse, sent the encouraging message that LesBiGays should flee the closet and "be themselves." The National Board of Review named it Best Foreign Film of 1979, and it also won the Foreign Press Association's Golden Globe for Best Picture of the Year. See Awards for LA CAGE AUX FOLLES, at http://us.imdb.com/Tawards? 0077288 (last visited Nov. 2, 2001).

TORCH SONG TRILOGY (New Line Cinema 1989). In this film, HARVEY FIERSTEIN recreated his Broadway role as a New York drag queen who seeks love, respect, and tradition from his families of origin and of choice, all in a world not well designed for his preference package.

FOUR WEDDINGS AND A FUNERAL (PolyGram Film Productions 1993). A dynamic gay male couple furnishes the primary example of a loving and committed relationship in this film, contrasting with the occasional sexual encounters in which actors HUGH GRANT and ANDI MACDOWELL engage as they unexpectedly meet and remeet as invited guests at a series of weddings.

MY BEST FRIEND'S WEDDING (TriStar Pictures 1997). Actor RUPERT EVERETT co-stars as the suave, debonair, and eloquent gay friend who provides an emotional lifeline to JULIA ROBERTS as she attempts to steal back her childhood friend, with whom she now realizes that she is in love, on the very weekend of his wedding to another woman.

TRICK (Fine Line Features 1999). Two hunky and hopeful gay romantics try to make it (literally) in a one-night stand in the Big Apple, but are interrupted by a stream of chaotic and hilarious events. From the first strain of the opening music, "Enter You--Voilá, It's Showtime," the sexual teasing is non-stop.

THE INCREDIBLY TRUE ADVENTURES OF TWO GIRLS IN LOVE (New Line Studios 1995). Expressing the deepest meanings of first love, racial clashing, and class conflicts, this film succeeds as a compassionate and untormented lesbian story.

PERSONAL BEST (Warner Studios 1982). A classic of the lesbian mainstream cinema, this movie features actress MARIEL HEMMINGWAY as a young runner who reaches a final, triumphant qualifying race for the boycotted 1980 Moscow Olympic Games via an affair with her mentor-competitor, Olympic runner PATRICE DONNELLY.

WILDE (Columbia/TriStar Studios 1998). A big-budget profile of Oscar Wilde, the film focuses compellingly and sympathetically on the events surrounding Wilde's 1895 sodomy trial and conviction.

TALES OF THE CITY (Channel Four Television Corporation 1993). Broadcast on Showtime's "American Playhouse," ARMISTEAD MAUPIN's best-selling novel came to life in the marvelous depiction of the antics at 28 Barbary Lane. OLYMPIA DUKAKIS stars as Anna Madrigal, the zany landlady who welcomes her tenants by taping homegrown marijuana joints to their doorframes and who presides over their lives, sexual and nonsexual.

Ellen DeGeneres's hesitant and insecure avowal in the now-famous  "Puppy Episode" of Ellen played to "coming out" parties held across the nation, and garnered an audience of over thirty-six million viewers. See Ellen Uncensored (May 6, 1998), at http://members.tripod.com/~moon_goddess_666/moon_ goddess9_ellen.html (last visited Nov. 2, 2001) (transcript of Diane Sawyer interview with Ellen DeGeneres on ABC Primetime).

West Wing, Will & Grace Named Top Shows at Emmys, Mr. Showbiz (Sept. 10, 2000), at http:// www.mrshowbiz.go.com/newsarchive/news/2000/9/emmys091000.html. Will & Grace swept the comedy category at the 52nd Annual Emmy Awards celebration, held on September 10, 2000, receiving three Emmys. The show won for Best Comedy Series, and the comic relief duo of Sean Hayes (Jack) and Megan Mullally (Karen) took home an Emmy apiece. One year earlier, Will & Grace had won the People's Choice Award for Favorite New Comedy.

Stuart Elliot, The Showtime Network Prepares a $10 Million Campaign Blitz for Its Queer as Folk Series, N.Y. TIMES, Nov. 28, 2000, at C10. For one example of such advertising in magazines, see also ENTERTAINMENT WEEKLY, Oct. 6, 2000, at 19 (billing the Showtime original series as having "no limits").

Caryn James, In a Gay World, Without the Usual Guides, N.Y. TIMES, Dec. 3, 2000, at 27. The "gay perspective" projected by "Queer as Folk" is not viewed as totalizing by certain LesBiGay folk, as gay television critic Anthony Tommasini made clear in his rather condemning review of the Showtime series. He caustically sums up its main theme: "[B]eing gay is all about sex. And on this trip you will see it all: gay images, exploits, pinings and positions." Topping his complaints, Tommasini states: "Nothing in 'Queer as Folk' bothers me more than the absence of straight people, of either sex, from this gay circle. It seems so unnatural, so at odds with the issues of inclusiveness and commonality that concern the gay community right now. And just when things were getting better." Anthony Tommasini, Looking for a Breakthrough? You'll Have to Wait, N.Y. TIMES, Jan. 14, 2001, at 2-33, 2-38.

Long associated with sexual slumming, this phrase came into mass media currency with the 1962 Columbia Pictures film, Walk on the Wild Side, and was reinvented by Lou Reed's key track on his album Transformer, released in 1972.

Richard Goldstein, Queering the Culture, THE VILLAGE VOICE, June 30, 1998, at 38, 44; see also A Special Report on Gay Hollywood 2000, ENTERTAINMENT WEEKLY, Oct. 6, 2000, at 23-49 (including stories entitled Is Your TV Set Gay? From Ellen to Will & Grace, How Television Led a Cultural Revolution; Calling Their Own Shots: Four Gay Filmmakers Dish the Dirt on the State of the Movie Industry;Coming Out Soon: It's (Almost) Here, It's Queer--A Guide to What's Next in Movies, TV, Music, and Theater; The Gayest Show on Earth: A Sneak Preview of...'Queer as Folk'; and Yep, They're Gay: 101 Movers & Shakers).It goes without saying that, for LesBiGays, the commercial mass entertainment land of Oz is not reserved to the cinema and television industries. LesBiGay music marketing is increasingly prominent, as the compilation CDs packaged for gay classical music lovers, such as Sensual Classics, Too (Teldec) and Out Classics (RCA), and those targeted to lesbians, such as Classical Erotica (Rising Star), richly demonstrate. Homoerotic jewel case art enabled these recordings to hit Billboard's Top Classical Albums chart in 1996. See James Hannahan, Feeding the Gay Market, Out Magazine, Nov. 1996, at 117-18. And in pop music, the first post-LesBiGay liberation star, Rufus Wainwright, a twenty-seven-year-old singer-songwriter, is the idol of "teenage girls who love him, although they know he would rather date their older brothers." Ann Powers, Embracing Gay Identity with Candor and Pride, N.Y. TIMES, July 1, 2001, at 2-24.Furthermore, LesBiGay presence in Broadway and Off-Broadway theatrical productions, historically a matter of same-sex actors playing straight roles, now extends equally to same-sex subject matters. As Richard Goldstein quipped about New York's plethora of LesBiGay theater offerings in the summer of 1998:In the same week Trent Lott dusted off his jackboots and compared homosexuals to kleptomaniacs, a New Yorker with an open mind could fill every evening with gay entertainment. Even as fanatics tried to suppress a gay Jesus play, one could watch Oscar Wilde kiss his beloved Bosie in venues on and off Broadway. Or marvel at Peggy Shaw plumbing the depths of menopause in a business suit. Or glam it up with a hard-rocking transsexual named Hedwig. Or slather over Shakespeare's R & J, an all-boy version of the quintessential hetero text.Goldstein, supra note 73, at 39. In the sports arena, commercial marketing has taken on new faces for new audiences. Advertisements feature open LesBiGay athletes who encourage LesBiGay fans to attend sports events or to buy commercial products. See, e.g., Stuart Elliott, A Natural Marketing Alliance Finally Takes Some Tentative Steps: Gays in Sports, N.Y. TIMES, July 9, 2001, at C9; Tom Weir, WNBA Sells Diversity: Marketing Recognizes Lesbian Fans, USA Today, July 24, 2001, at 1C (nine of sixteen WNBA teams pitch some direct marketing to lesbian fans).

Indeed, LesBiGays reside in nearly every American county, as data from the 2000 Census demonstrate. See Households Headed by Gays Rose in the 90's, Data Shows, N.Y. TIMES, Aug. 22, 2001, at A17 (same-sex couples head nearly 600,000 homes throughout the United States); see also Press Release, Human Rights Campaign, U.S. Census Figures Continue to Show National Trend of Dramatic Increase in Households of Same-Sex Partners (June 27, 2001).

Such recognition has translated to official antiharassment policies for some private corporations, although "the face of antigay bias in the workplace has evolved from that of overt discrimination to one of more subtle prejudices." Joseph Hanania, Bias Against Gays Today Often Subtle, Sometimes Not So; Some Defuse Tensions by Confronting, Ignoring or Sidestepping Their Harassers, L.A. TIMES, Feb. 18, 2001, at W1 (quoting a statement of Jon Davidson, director of Los Angeles Lambda Legal Defense & Education Fund).

Press Release, Human Rights Campaign, BellSouth Becomes Last of Former 'Baby Bells' to Announce Domestic Partner Benefits (Dec. 15, 2000) [hereinafter Press Release, BellSouth].

Press Release, Human Rights Campaign, Number of Employers Offering Domestic Partner Benefits Jumps Dramatically in One Year (Sept. 25, 2000) [hereinafter Press Release, Number of Employees]; Press Release, BellSouth, supra note 76. For the latest updates on the Human Rights Campaign statistics, see its website at http://www.hrc.org/mainset_worknet.

See The Boeing Co., Compensation and Benefits, at http://www.boeing.com/companyoffices/empinfo/compensation/ (last visited Sept. 15, 2001). Interestingly, the preamble to Boeing's Health & Welfare Plan for Same- Gender Domestic Partner Coverage highlights the profit goals motivating its largess: "[T]o be the 'employer of choice' we need to be prepared to provide benefit plans and programs that will help us recruit and retain valuable employees." The Boeing Co., Health and Welfare Benefits, Same-Gender Domestic Partner Coverage, at http://www.boeing.com/companyoffices/empinfo/compensation/totalcomp/health/domestic_ partners/FAQ_New.htm (last visited Nov. 30, 2001).

Press Release, Number of Employees, supra note 77; Press Release, BellSouth, supra note 76.

Press Release, Number of Employees, supra note 77.

All too often, the terms "sexuality" and "sex" (as organs or acts) are used synonymously in ordinary discourse. As "sexuality" is not merely a function of having certain "sex" organs, or of performing certain "sex" acts, it is important to recognize the fundamental differences between the terms. Nevertheless, when discussing the theoretical connections between commerce and sexuality, it is virtually impossible to separate out the commodified strands of sex and sexuality, if for no other reason than that the very language of advertising purposefully collapses them. See generally ERVING GOFFMAN, GENDER ADVERTISMENTS (1979) (discussing gender & the allure of advertising); SUT JHALLY, THE CODES OF ADVERTISING 132-39 (1987) (same); JUDITH WILLIAMSON, DECODING ADVERTISMENTS 120-21 (1978) (unpacking the semiotic meaning of particular ads in terms of both sex and sexuality). For fascinating accounts of the theoretical interplay of capitalism, commercialism, and sexuality that go well beyond the scope of this Essay, see generally MICHAEL FOURCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION (1990); JEAN BAUDRILLARD, SYMBOLIC EXCHANGE AND DEATH (1976) (particularly, the discussion of the sexual carnival in "The Body or the Carnality of Signs"); MARSHALL MCLUHAN, THE MECHANICAL BRIDE (1951). In this Essay, the terms "sexuality" and "sex" refer simultaneously to both, unless the text explicitly provides otherwise.

A compact but informative historical account of sex as an advertising device that describes its increasing frequency and audacious imagery is given in CHARLES GOODRUM & HELEN DALRYMPLE, ADVERTISING IN AMERICA: THE FIRST 200 YEARS 68-81 (1990).

RONALD K. COLLINS & DAVID M. SKOVER, THE DEATH OF DISCOURSE 71-81, 151-52 (1996) (exploring in greater depth the workings of commercial advertising as a phenomenon).

DOUGLAS KELLNER, CRITICAL THEORY, COMMODITIES AND THE CONSUMER SOCIETY, IN THEORY, CULTURE, AND SOCIETY: EXPORATIONS IN CRITICAL SOCIAL SCIENCE 66 (1983).

DAVID T. EVANS, SEXUAL CITIZENSHIP: THE MATERIAL CONSTRUCTION OF SEXUALITIES 45 (1993).

The commodification of women focuses centrally on their household role as "shoppers-in-chief," as critical theorist Rosalind Coward explains: "To be a woman is to be constantly addressed [and] scrutinized, to have our desire constantly courted--in the kitchen, on the streets, in the world of fashion, in films and television.... Desire is endlessly defined and stimulated. Everywhere female desire is sought, bought, packaged and consumed." ROSALIND COWARD, FEMALE DESIRES 13 (1984).

JOHN D'EMILIO, CAPITALISM AND GAY IDETITY, IN POWERS OF DESIRE: THE POLITICS OF SEXUALITY 100, 104-05 (Ann Snitow et al. eds., 1983). In his focus on the forces of nineteenth century capitalism, John D'Emilio's account of the origins of same-sex identity bears compelling parallels to Michel Foucault's account of the creation of sexuality, both "normal" and "perverse," by the eighteenth and nineteenth century public discourses of medicine, psychiatry, criminal justice, and parental or social control of adolescent behaviors . See generally FOURCAULT, supra note 81 (discussing the multiplication and intensification of Western discourses on sexuality, and the operations of power in discursive production).

D'EMILIO, supra note 87, at 105-07. See also generally GEORGE CHAUCEY, GAY NEW YORK: GENDER, URBAN CULTURE, AND THE MAKING OF THE GAY MALE WORLD, 1890-1940 (1994); LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN LIFE IN TWENTIETH-CENTURY AMERICA (1991).

DAVID T. EVANS, SEXUAL CITIZENSHIP: THE MATERIAL CONSTRUCTION OF SEXUALITIES 94-103 (1993).

For an amusing account of a recent gay émigré who became "a total slave to the gym rhythm" in Los Angeles, see Peter Whittle, Perspective: Time for This Gym Rat to Break Free from the Pack, L.A. TIMES, Apr. 5, 2001, at E1.

EVANS, supra note 89, at 100.

Id. at 103.

Social commentators Amy Gluckman and Betsy Reed instruct us in this regard:

As women have won more access to economic resources, it has become easier for them to eschew heterosexual marriage, building their own households, communities, and institutions. Indeed, as droves of women have entered the workforce, marriage rates have declined; the share of women who are married dropped from 71 percent in 1970 to 60 percent in 1993.

Bradley Johnson, Economics Holds Back Lesbian Ad Market: "Want Something Totally Their Own," Publishers Say, ADVERTISING AGE, Jan. 18, 1993, at 34.

Id.

Penaloza, supra note 19, at 33.

For a succinct synthesis of leading theoretical perspectives on the relationship of American citizenship to marketplace access, see ANTHONY J. FREITAS, BELONGINGS: CITIZENSHIP, SEXUALITY, AND THE MARKET, IN EVERYDAY INEQUALITIES: CRITICAL INQUIRES 361, 363-68 (JODI O'BRIEN & JUDITH A. HOWARD eds., 1998).

GLUCKMAN & REED, supra note 43, at 519, 524 (quoting Andrew Schneider, the writer of Northern Exposure's lesbian episode).

LORD ALFRED DOUGLAS, TWO LOVES, in 1 THE CHAMELEON 28 (1894).

See SUE LEVIN, IN THE PINK: THE MAKING OF SUCCESSFUL GAY-ANDLESBIAN-OWNED BUSINESSE (1999). For the entrepreneurial LesBiGay, this pathbreaking book is one of the most instructive manifestoes for building profitable businesses.

...at least the Caucasian upper-class LesBiGays. It is critical always to remember that the commercial playing field is uneven given racial, ethnic, gender, and class differences. Nevertheless, it is equally important to recognize that the trajectory of commercialization's effects may be similar for most LesBiGays over time, even though relative scales and speeds of change will vary. It is the dynamic of the trajectory that this Essay explores.

In the distinct, though related, context of freedom of speech in the mass media entertainment culture, First Amendment theorists Ronald Collins and David Skover identified the aspirational and regulatory functions of commercial mythmaking. COLLINS & SKOVER, supra note 83, at 205-10.

One of the most important tracts on the function of marketplace mythmaking (spun largely through commercial advertising) to preserve and promote the modern American capitalist system is JULES HENRY, CULTURE AGAINST MAN (1963). Presenting his general thesis, Henry declares, "[I]n America, as elsewhere in industrialized cultures, it is only the deliberate creation of needs that permits the culture to continue. This is the first phase of the psychic revolution of contemporary life." Id. at 19. See generally THE CULTURE OF CONSUMPTION: CRITICAL ESSAYS IN AMERICAN HISTORY 1880-1980 (RICHARD WIGHTMAN FOX & T.J. JACKSON LEARS eds., 1983) (examining the consumer culture and the advertising industry that supports it as both power structures and standards for American life); LEO BOGART, COMMERCIAL CULTURE: THE MEDIA SYSTEM AND THE PUBLIC INTEREST 203-17 (1995) (discussing the role of dramatic fiction in journalism that is produced to meet the demands of the market).

COLLINS & SKOVER, supra note 83, at 115-16.

Id.; see also THOMAS FRANK, WHY JOHNNY CAN'T DISSENT, in COMMODIFY YOUR DISSENT 31-45 (THOMAS FRANK & MATT WEILAND eds., 1997). As Frank puts it tellingly: "Our businessmen imagine themselves rebels, and our rebels sound more and more like ideologists of business." Id. at 41.

CHASIN, supra note 41, at 238.

Daniel Mendelsohn, When Did Gays Get So Straight?: How Queer Culture Lost Its Edge, NEW YORK, Sept. 30, 1996, at 26.

See GLUCKMAN & REED, supra note 43, at 519, 524.

See generally HENRY, supra note 103; IAN I. MITROFF & WARRENan I. Mitroff & Warren Bennis, The Unreality Industry: The Deliberate Manufacturing of Falsehood and What It Is Doing to Our Lives (1989) (portraying the deliberate creation of unreality by American mass communication and entertainment media). See also WILLIAM LEIS ET AL., SOCIAL COMMUNICATION IN ADVERTISING: PERSONS, PRODUCTS, AND IMAGES OF WELL-BEING 319-27 (1990) (arguing that through marketing and advertising, goods are fitted with "masks" that become our fetishes); BOGART, supra note 103, at 203 ("The commercial culture we absorb in such massive doses envelops us in make-believe and distracts us from the realities of current history that urgently demand our attention.").

At a higher level of abstraction, such an inquiry seemed to be of interest to Dr. Sigmund Freud, who considered it "a debatable point whether a certain degree of cultural hypocrisy is not indispensable for the maintenance of civilization." SIGMUND FREUD, THOUGHTS FOR THE TIMES ON WARE AND DEATH, in 14 THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 275, 284-85 (1957). Within the context of LesBiGay identity, however, commercial mythmaking may well be useful more for its survival force than for its civilizing force.

DAVID NYBERG, THE VARNISHED TRUTH: TRUTH TELLING AND DECEIVING IN ORDINARY LIFE 2 (1993).

MANUEL PUIG, THE KISS OF THE SPIDER WOMAN (Thomas Colchie trans., Vintage Books, 1991).

MARSHAL MCLUHAN & QUENTIN FIORE, WARE AND PEACE IN THE GLOBAL VILLAGE 18 (McGraw-Hill 1968). According to McLuhan's biographer, the celebrated communications theorist frequently employed the metaphor he had devised to express what Wyndham Lewis had once taught him:  "The present cannot be revealed to people until it has become yesterday." McLuhan termed this the "rearview mirror phenomenon." People went through life looking into the rearview mirror--seeing the present in terms of the past--instead of paying attention to the reality confronting them.

To their credit, Professors Nancy Levit and Ruthann Robson have glimpsed the key connection between LesBiGay equality and the LesBiGay commodified identity, although neither has explored this profound relationship to any significant extent . See Nancy Levit, A Different Kind of Sameness: Beyond Formal Equality and Antisubordination Strategies in Gay Legal Theory, 61 OHIO ST. L. J. 867 (2000); Ruthann Robson, To Market, To Market: Considering Class in the Context of Lesbian Legal Theories and Reforms, 5 S. CAL. REV. L. & WOMEN'S STUD. 173 (1995). For an unusually creative article proposing that intimate relationships be analyzed as business models, see Martha M. Ertman, Marriage as a Trade: Bridging the Private/Private Distinction, HARV. C.R.-C.L. L. REV. 79 (2001).

See WILLIAM N. ESCRIDGE, JR. & NAN D. HUNTER, SEXUALITY, GENDER, AND THE LAW (1997); WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APRTHEID OF THE CLOSET (1999); NAN D. HUNTER et al., THE HUMAN RIGHTS OF LESBIANS AND GAY MEN: THE BASIC ACLU GUIDE TO A GAY PERSON'S RIGHTS (1992).

William N. Eskridge, Jr., A Social Constructionist Critique of Posner's Sex and Reason: Steps Toward a Gaylegal Agenda, 102 YALE L.J. 333, 384 (1992) (reviewing RICHARD A. POSNER, SEX AND REASON, Sex and Reason (1992)).

See generally ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY (1995); BRUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN AMERICAN SOCIETY (1993); BEYOND QUEER: CHALLENGING GAY LEFT ORTHODOXY (BRUCE BAWER ed., 1996) (featuring articles by conservative assimilationists, including Sullivan and Bawer).

ANDREW SULLIVAN, supra note 117, at 171; see also Howard Kurtz, The Comeback Columnist: Andrew Sullivan Continues to Defy All Expectations, WASH. POST, Apr. 19, 2001, at C1 (describing Andrew Sullivan as a "gay neo-con," who enjoys "[g]ood public spats" over liberal political issues and delights in being "the victim of demonization by the left").

See Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of 'Sex,' 'Gender,' and 'Sexual Orientation' in Euro-American Law and Society, 83 CALIF. L. REV. 1 (1995); URVASHI VAID, VIRTUAL EQUALITY: THE MAINSTREAMING OF GAY & LESBIAN LIBERATION (1995); see also Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 CONN. L. REV. 561 (1997); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1 (1995).

VAID, supra note 119, at 180.

Id. Francisco Valdes characterizes the queerfolk's intersectional methodology of analysis, observing:

By showing how different forms of bias travel together and combine in social operation, multidimensional analysis may begin to unite multiply diverse outgroups and persuade skeptics that all forms of discrimination based on essentialized identification are wrong for the same reason: they subvert the national commitment to equality, liberty and justice, spreading instead human suffering, as well as social dysfunction and disharmony.

Obviously, LesBiGay litigants have been well accustomed to acting  "on the defensive," whether literally as criminal defendants asserting constitutional claims against prosecution for sodomy or public indecency or more figuratively as civil rights claimants fighting the uphill battle against political retrenchments of common liberties. A typical litigation strategy in these instances, as in many others, is the attempt to extend already recognized constitutional defenses or affirmative civil rights to relatively "new" LesBiGay contexts. Not surprisingly, such attempts have often failed. See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986) (declining to extend Fourteenth Amendment substantive due process privacy rights to consensual adult gay sexual relations); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (declining to extend First Amendment expressive association rights to require the retention of an adult gay scoutmaster); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1977) (declining to extend the reasoning of Romer v. Evans to invalidate Cincinnati's charter that prohibited the enactment of LesBiGay antidiscrimination measures), cert. denied, 525 U.S. 943 (1998).

A recent, comprehensive, and commanding work on the commodification of LesBiGay identity is ALEXANDRA CHASIN's, SELLING OUT: THE GAY AND LESBIAN MOVEMENT GOES TO MARKET, supra note 41.

Some LesBiGay theorists believe that, even if capitalism will never be overthrown, it likely will evolve beyond the early stages of mass production and cultural homogenization to future stages of niche production and cultural heterogeneity. These latter stages entail possibilities for greater social diversity and humane tolerance. See, e.g., MICHAEL PIORE, ECONOMIC IDENTITY/SEXUAL IDENTITY, IN A QUEER WORLD, supra note 18, at 502, 504-05.

Attributed to Aristotle in DIOGENES LAERTIUS, LIVES OF EMINENT PHILOSOPHERS, 5:18 (circa A.D. 200).

On an intricately related point, the American commercial culture has taken the helm in reconstituting the American political and legal notions of discourse. Is it possible today to imagine an American system of free speech that treats commercial advertising as less valuable or less constitutionally protected than political speechmaking? Certainly, the U.S. Supreme Court doesn't think so. See generally COLLINS & SKOVER, supra note 83, at 67-135 (asserting that, in our culture of advanced capitalism, there is a striking redundancy in the notion of "commercial speech").

"A Call to Consciousness" is not a "Toward a Theory of...." Thus, it is not the purpose of this Essay to provide a full-fledged new legal theory turning on commodified LesBiGay identity. Understanding the commercialization of that identity prompts us (and, hopefully, others) to ask: How could legal scholars take account of LesBiGay commodification in ways that previous legal theories failed to do? What points of resistance, if any, might be available to those who despair of that commodified identity? Even more startling, are the contributions of any legal theorist likely to be nothing but "rearview mirror," in the sense that the forces of commerce might marginalize or entirely subsume them? In short, will the LesBiGay legal academy join the LesBiGay Committee of the American Historical Association?Those questions remain to be answered primarily because the concept of LesBiGay identity as commodity barely has been recognized, much less analyzed or effectively engaged by such theorists. When they do, however, they might well investigate the following non-exhaustive list of additional questions: How can the LesBiGay targets of commercial exploitation seize agency? How can they control their own commercial images? How might they increase their own market power and learn to deploy it in self-actualizing ways? What are the roles of LesBiGay communities in building market structures and exploiting them to their own ends? And, in all of this, what are the roles and functions of law? Will a commodified path to liberation advantage some LesBiGays above others? If so, is the disparity different either in kind or degree from that pre-existing the recent commercial exploitation of LesBiGay identity? In any case, is that disparity normatively acceptable? And, if not, what could or should the law do about it? Are there marketplace messages to be drawn from, or linkages to be made with, other subordinated groups here and abroad whose identities have been commodified? How might those messages be creatively reshaped for the medium of LesBiGay culture? What are the purposes and practices of law in that reshaping?

NICCOLO MACCIAVELLI, THE PRINCE 61 (HARVEY MANSFIELD, JR. trans., Univ. of Chicago Press 1985).