## 1. History



As has been frequently noted, the ancient Greeks did not have terms or
concepts that correspond to the contemporary dichotomy of
'heterosexual' and 'homosexual' (e.g.,
Foucault, 1980). There is a wealth of material from ancient Greece
pertinent to issues of sexuality, ranging from dialogues of Plato,
such as the *Symposium*, to plays by Aristophanes, and Greek
artwork and vases. What follows is a brief description of ancient
Greek attitudes, but it is important to recognize that there was
regional variation. For example, in parts of Ionia there were general
strictures against same-sex *eros*, while in Elis and Boiotia
(e.g., Thebes), it was approved of and even celebrated (cf. Dover,
1989; Halperin, 1990).



Probably the most frequent assumption about sexual orientation, at
least by ancient Greek authors, is that persons can respond erotically
to beauty in either sex. Diogenes Laeurtius, for example, wrote of
Alcibiades, the Athenian general and politician of the 5th
century B.C., "in his adolescence he drew away the husbands from
their wives, and as a young man the wives from their husbands."
(Quoted in Greenberg, 1988, 144) Some persons were noted for their
exclusive interests in persons of one gender. For example, Alexander
the Great and the founder of Stoicism, Zeno of Citium, were known for
their exclusive interest in boys and other men. Such persons, however,
are generally portrayed as the exception. Furthermore, the issue of
what biological sex one is attracted to is seen as an issue of taste
or preference, rather than as a moral issue. A character in
Plutarch's *Erotikos* (*Dialogue on Love*) argues
that "the noble lover of beauty engages in love wherever he sees
excellence and splendid natural endowment without regard for any
difference in physiological detail" (*ibid*., 146).
Gender just becomes irrelevant "detail" and instead the
excellence in character and beauty is what is most important.



Even though the gender that one was erotically attracted to (at any
specific time, given the assumption that persons will likely be
attracted to persons of both sexes) was not important, other issues
were salient, such as whether one exercised moderation. Status
concerns were also of the highest importance. Given that only free men
had full status, women and male slaves were not problematic sexual
partners. Sex between freemen, however, was problematic for status.
The central distinction in ancient Greek sexual relations was between
taking an active or insertive role, versus a passive or penetrated
one. The passive role was acceptable only for inferiors, such as
women, slaves, or male youths who were not yet citizens. Hence the
cultural ideal of a same-sex relationship was between an older man,
probably in his 20s or 30s, known as the *erastes*, and a boy
whose beard had not yet begun to grow, the *eromenos* or
*paidika*. In this relationship there was courtship ritual,
involving gifts (such as a rooster), and other norms. The
*erastes* had to show that he had nobler interests in the boy,
rather than a purely sexual concern. The boy was not to submit too
easily, and if pursued by more than one man, was to show discretion
and pick the more noble one. There is also evidence that penetration
was often avoided by having the *erastes* face his beloved and
place his penis between the thighs of the *eromenos*, which is
known as intercrural sex. The relationship was to be temporary and
should end upon the boy reaching adulthood (Dover, 1989). To continue
in a submissive role even while one should be an equal citizen was
considered troubling, although there certainly were many adult male
same-sex relationships that were noted and not strongly stigmatized.
While the passive role was thus seen as problematic, to be attracted
to men was often taken as a sign of masculinity. Greek gods, such as
Zeus, had stories of same-sex exploits attributed to them, as did
other key figures in Greek myth and literature, such as Achilles and
Hercules. Plato, in the *Symposium*, argues for an army to be
comprised of same-sex lovers. Thebes did form such a regiment, the
Sacred Band of Thebes, formed of 500 soldiers. They were renowned in
the ancient world for their valor in battle.



Ancient Rome had many parallels to ancient Greece in its understanding
of same-sex attraction, and sexual issues more generally. This is
especially true under the Republic. Yet under the Empire, Roman
society slowly became more negative in its views towards sexuality,
probably due to social and economic turmoil, even before Christianity
became influential.



Exactly what attitude the New Testament has towards sexuality in
general, and same-sex attraction in particular, is a matter of sharp
debate. John Boswell argues, in his fascinating *Christianity,
Social Tolerance, and Homosexuality*, that many passages taken
today as condemnations of homosexuality are more concerned with
prostitution, or where same-sex acts are described as
"unnatural" the meaning is more akin to 'out of the
ordinary' rather than as immoral (Boswell, 1980, ch.4; see also
Boswell, 1994). Yet others have criticized, sometimes persuasively,
Boswell's scholarship, arguing that the conventional
contemporary reading is more plausible (see Greenberg, 1988, ch.5).
What is clear, however, is that while condemnation of same-sex
attraction is marginal to the Gospels and only an intermittent focus
in the rest of the New Testament, early Christian church fathers were
much more outspoken. In their writings there is a horror at any sort
of sex, but in a few generations these views eased, in part due no
doubt to practical concerns of recruiting converts. By the fourth and
fifth centuries the mainstream Christian view allowed only for
procreative sex.



This viewpoint, that procreative sex within marriage is allowed, while
every other expression of sexuality is sinful, can be found, for
example, in St. Augustine. This understanding of permissible sexual
relationships leads to a concern with the gender of one's
partner that is not found in previous Greek or Roman views, and it
clearly forbids homosexual acts. Soon this attitude, especially
towards homosexual sex, came to be reflected in Roman Law. In
Justinian's Code, promulgated in 529, persons who engaged in
homosexual sex were to be executed, although those who were repentant
could be spared. Historians agree that the late Roman Empire saw a
rise in intolerance towards homosexuality, although there were again
important regional variations.



With the decline of the Roman Empire, and its replacement by various
barbarian kingdoms, a general tolerance (with the sole exception of
Visigothic Spain) for homosexual acts prevailed. As one prominent
scholar puts it, "European secular law contained few measures
against homosexuality until the middle of the thirteenth
century." (Greenberg, 1988, 260) Even while some Christian
theologians continued to denounce nonprocreative sexuality, including
same-sex acts, a genre of homophilic literature, especially among the
clergy, developed in the eleventh and twelfth centuries (Boswell,
1980, chapters 8 and 9).



The latter part of the twelfth through the fourteenth centuries,
however, saw a sharp rise in intolerance towards homosexual sex,
alongside persecution of Jews, Muslims, heretics, and others. While
the causes of this are somewhat unclear, it is likely that increased
class conflict alongside the Gregorian reform movement in the Catholic
Church were two important factors. The Church itself started to appeal
to a conception of "nature" as the standard of morality,
and drew it in such a way so as to forbid homosexual sex (as well as
extramarital sex, nonprocreative sex within marriage, and often
masturbation). For example, the first ecumenical council to condemn
homosexual sex, Lateran III of 1179, stated "Whoever shall be
found to have committed that incontinence which is against
nature" shall be punished, the severity of which depended upon
whether the transgressor was a cleric or layperson (quoted in Boswell,
1980, 277). This appeal to natural law (discussed below) became very
influential in the Western tradition. An important point to note,
however, is that the key category here is the 'sodomite,'
which differs from the contemporary idea of 'homosexual'.
A sodomite was understood as act-defined, rather than as a type of
person. Someone who had desires to engage in sodomy, yet did not act
upon them, was not a sodomite. Also, persons who engaged in
heterosexual sodomy were also sodomites. There are reports of persons
being burned to death or beheaded for sodomy with a spouse (Greenberg,
1988, 277). Finally, a person who had engaged in sodomy, yet who had
repented of his sin and vowed to never do it again, was no longer a
sodomite. The gender of one's partner is again not of decisive
importance, although some medieval theologians single out same-sex
sodomy as the worst type of sexual crime (Crompton, 2003, ch.6).



For the next several centuries in Europe, the laws against homosexual
sex were severe in their penalties. Enforcement, however, was
episodic. In some regions, decades would pass without any
prosecutions. Yet the Dutch, in the 1730s, mounted a harsh anti-sodomy
campaign (alongside an anti-Roma pogrom), even using torture to
obtain confessions. As many as one hundred men and boys were executed
and denied burial (Greenberg, 1988, 313-4). Also, the degree to
which sodomy and same-sex attraction were accepted varied by class,
with the middle class taking the most restrictive view, while the
aristocracy and nobility often accepted public expressions of
alternative sexualities. At times, even with the risk of severe
punishment, same-sex oriented subcultures would flourish in cities,
sometimes only to be suppressed by the authorities. In the
19th century there was a significant reduction in the legal
penalties for sodomy. The Napoleonic code decriminalized sodomy, and
with Napoleon's conquests that Code spread. Furthermore, in many
countries where homosexual sex remained a crime, the general movement
at this time away from the death penalty usually meant that sodomy was
removed from the list of capital offenses.



In the 18th and 19th centuries an overtly
theological framework no longer dominated the discourse about same-sex
attraction. Instead, secular arguments and interpretations became
increasingly common. Probably the most important secular domain for
discussions of homosexuality was in medicine, including psychology.
This discourse, in turn, linked up with considerations about the state
and its need for a growing population, good soldiers, and intact
families marked by clearly defined gender roles. Doctors were called
in by courts to examine sex crime defendants (Foucault, 1980;
Greenberg, 1988). At the same time, the dramatic increase in school
attendance rates and the average length of time spent in school,
reduced transgenerational contact, and hence also the frequency of
transgenerational sex. Same-sex relations between persons of roughly
the same age became the norm.



Clearly the rise in the prestige of medicine resulted in part from the
increasing ability of science to account for natural phenomena on the
basis of mechanistic causation. The application of this viewpoint to
humans led to accounts of sexuality as innate or biologically driven.
The voluntarism of the medieval understanding of sodomy, that
sodomites chose sin, gave way to the prevailing though contested
modern notion of homosexuality as a deep, unchosen characteristic of
persons, regardless of whether they act upon that orientation. The
idea of a 'latent sodomite' would not have made sense, yet
under this new view it does make sense to speak of a person as a
'latent homosexual.' Instead of specific acts defining a
person, as in the medieval view, an entire physical and mental makeup,
usually portrayed as somehow defective or pathological, is ascribed to
the modern category of 'homosexual.' Although there are
historical precursors to these ideas (e.g., Aristotle gave a
physiological explanation of passive homosexuality), medicine gave
them greater public exposure and credibility (Greenberg, 1988, ch.15).
The effects of these ideas cut in conflicting ways. Since
homosexuality is, by this view, not chosen, it makes less sense to
criminalize it. Persons are not choosing evil acts. Yet persons may be
expressing a diseased or pathological mental state, and hence medical
intervention for a cure is appropriate. Hence doctors, especially
psychiatrists, campaigned for the repeal or reduction of criminal
penalties for consensual homosexual sodomy, yet intervened to
"rehabilitate" homosexuals. They also sought to develop
techniques to prevent children from becoming homosexual, for example
by arguing that childhood masturbation caused homosexuality, hence it
must be closely guarded against.



In the 20th century sexual roles were redefined once again.
For a variety of reasons, premarital intercourse slowly became more
common and eventually acceptable. With the decline of prohibitions
against sex for the sake of pleasure even outside of marriage, it
became more difficult to argue against gay sex. These trends were
especially strong in the 1960s, and it was in this context that the
gay liberation movement took off. Although gay and lesbian rights
groups had been around for decades, the low-key approach of the
Mattachine Society (named after a medieval secret society) and the
Daughters of Bilitis had not gained much ground. This changed in the
early morning hours of June 28, 1969, when the patrons of the
Stonewall Inn, a gay bar in Greenwich Village, rioted after a police
raid. In the aftermath of that event, gay and lesbian groups began to
organize around the country. Gay Democratic clubs were created in
every major city, and one fourth of all college campuses had gay and
lesbian groups (Shilts, 1993, ch.28). Large gay urban communities in
cities from coast to coast became the norm. The American Psychiatric
Association removed homosexuality from its official listing of mental
disorders. The increased visibility of gays and lesbians has become a
permanent feature of American life despite the two critical setbacks
of the AIDS epidemic and an anti-gay backlash (see Berman, 1993, for a
good survey). The post-Stonewall era has also seen marked changes in
Western Europe, where the repeal of anti-sodomy laws and legal
equality for gays and lesbians has become common. In the 21st century,
the legal recognition of same-sex marriage has become widespread.



The increasing acceptance of same-sex relations has prompted new
theoretical debates, such as whether a "post-gay" culture
will emerge due to widespread assimilation of gays and lesbians
(Anderson, 2016). Generally what is meant by the term
"post-gay" is that if LGBTQ persons have full legal and
social equality, that level of acceptance makes it so sexual
orientation is no longer a defining aspect of one's identity or
social position. While it seems unlikely that gay, lesbian, or queer
persons of color, or who live in rural areas, or are otherwise in a
marginalized position will achieve such assimilation in the
foreseeable future, the debate is still of theoretical interest. For
instance, post-gay can be conceptualized as either a specific
political order, characterized by equality across sexual orientations,
or it can be seen as a specific type of identity, where persons
understand and accept themselves as same-sex oriented but as not in
any way defined by that. Post-gay can also be a time, an era marked by
widespread assimilation, or a space, where persons are fully treated
as equals. Some regard the variety of meanings given to the term as
evidence of confusion (Kampler and Connell, 2018). A better
understanding, however, is that the term is being used to rival ends.
For some, post-gay marks the culmination of the gay rights movement,
which all along, they contend, was an effort to be treated as equals.
For others, it opens a space where sexual labels can be resisted,
renegotiated, and made fluid and non-binary (Coleman-Fountain,
2014).


## 2. Historiographical Debates



Broader currents in society have influenced the ways in which scholars
and activists have approached research into sexuality and same-sex
attraction. Some early 20th century researchers and
equality advocates, seeking to vindicate same-sex relations in
societies that disparaged and criminalized it, put forward lists of
famous historical figures attracted to persons of the same sex. Such
lists implied a common historical entity underlying sexual attraction,
whether one called it 'inversion' or
'homosexuality.' This approach (or perhaps closely related
family of approaches) is commonly called essentialism. Historians and
researchers sympathetic to the gay liberation movement of the late
1960s and 1970s produced a number of books that implicitly relied on
an essentialist approach. In the 1970s and 1980s John Boswell raised
it to a new level of methodological and historical sophistication,
although his position shifted over time to one of virtual agnosticism
between essentialists and their critics. Crompton's work (2003)
is a notable contemporary example of an essentialist methodology.



Essentialists claim that categories of sexual attraction are observed
rather than created. For example, while ancient Greece did not have
terms that correspond to the heterosexual/homosexual division, persons
did note men who were only attracted to person of a specific sex,
hence the lack of terminology need not be taken as evidence of a lack
of continuity in categories. Through history and across cultures there
are consistent features, albeit with meaningful variety over time and
space, in sexual attraction to the point that it makes sense of speak
of specific sexual orientations. According to this view, homosexuality
is a specific, natural kind rather than a cultural or historical
product. Essentialists allow that there are cultural differences in
how homosexuality is expressed and interpreted, but they emphasize
that this does not prevent it from being a universal category of human
sexual expression.



In contrast, in the 1970s and since a number of researchers, often
influenced by Mary McIntosh or Michel Foucault, argued that class
relations, the human sciences, and other historically constructed
forces create sexual categories and the personal identities associated
with them. For advocates of this view, such as David Halperin, how sex
is organized in a given cultural and historical setting is irreducibly
particular (Halperin, 2002). The emphasis on the social creation of
sexual experience and expression led to the labeling of the viewpoint
as social constructionism, although more recently several of its
proponents have preferred the term 'historicism.' Thus
homosexuality, as a specific sexual construction, is best understood
as a solely modern, Western concept and role. Prior to the development
of this construction, persons were not really 'homosexual'
even when they were only attracted to persons of the same sex. The
differences between, say, ancient Greece, with its emphasis on
pederasty, role in the sex act, and social status, and the
contemporary Western role of 'gay' or
'homosexual' are simply too great to collapse into one
category.



In a manner closely related to the claims of queer theory, discussed
below, social constructionists argue that specific social constructs
produce sexual ways of being. There is no given mode of sexuality that
is independent of culture; even the concept and experience of sexual
orientation itself are products of history. For advocates of this
view, the range of historical sexual diversity, and the fluidity of
human possibility, is simply too varied to be adequately captured by
any specific conceptual scheme.



There is a significant political dimension to this seemingly abstract
historiographical debate. Social constructionists argue that
essentialism is the weaker position politically for at least two
reasons. First, by accepting a basic heterosexual/homosexual
organizing dichotomy, essentialism wrongly concedes that
heterosexuality is the norm and that homosexuality is, strictly
speaking, abnormal and the basis for a permanent minority. Second,
social constructionists argue that an important goal of historical
investigations should be to put into question contemporary organizing
schemas about sexuality. The acceptance of the contemporary
heterosexual/homosexual dichotomy is conservative, perhaps even
reactionary, and forecloses the exploration of new possibilities.
(There are related queer theory criticisms of the essentialist
position, discussed below.) In contrast, essentialists argue that a
historicist approach forecloses the very possibility of a 'gay
history.' Instead, the field of investigation becomes other
social forces and how they 'produce' a distinct form or
forms of sexuality. Only an essentialist approach can maintain the
project of gay history, and minority histories in general, as a force
for liberation.


## 3. Natural Law



Today natural law theory offers the most common intellectual defense
for differential treatment of gays and lesbians, and as such it merits
attention. The development of natural law is a long and very
complicated story. A reasonable place to begin is with the dialogues
of Plato, for this is where some of the central ideas are first
articulated, and, significantly enough, are immediately applied to the
sexual domain. For the Sophists, the human world is a realm of
convention and change, rather than of unchanging moral truth. Plato,
in contrast, argued that unchanging truths underpin the flux of the
material world. Reality, including eternal moral truths, is a matter
of *phusis*. Even though there is clearly a great degree of
variety in conventions from one city to another (something ancient
Greeks became increasingly aware of), there is still an unwritten
standard, or law, that humans should live under.



In the *Laws*, Plato applies the idea of a fixed, natural law
to sex, and takes a much harsher line than he does in the
*Symposium* or the *Phraedrus*. In Book One he writes
about how opposite-sex sex acts cause pleasure by nature, while
same-sex sexuality is "unnatural" (636c). In Book Eight,
the Athenian speaker considers how to have legislation banning
homosexual acts, masturbation, and illegitimate procreative sex widely
accepted. He then states that this law is according to nature
(838-839d). Probably the best way of understanding Plato's
discussion here is in the context of his overall concerns with the
appetitive part of the soul and how best to control it. Plato clearly
sees same-sex passions as especially strong, and hence particularly
problematic, although in the *Symposium* that erotic attraction
is presented as potentially being a catalyst for a life of philosophy,
rather than base sensuality (Cf. Dover, 1989, 153-170; Nussbaum,
1999, esp. chapter 12).



Other figures played important roles in the development of natural law
theory. Aristotle, with his emphasis upon reason as the distinctive
human function, and the Stoics, with their emphasis upon human beings
as a part of the natural order of the cosmos, both helped to shape the
natural law perspective which says that "True law is right
reason in agreement with nature," as Cicero put it. Aristotle,
in his approach, did allow for change to occur according to nature,
and therefore the way that natural law is embodied could itself change
with time, which was an idea Aquinas later incorporated into his own
natural law theory. Aristotle did not write extensively about sexual
issues, since he was less concerned with the appetites than Plato.
Probably the best reconstruction of his views places him in mainstream
Greek society as outlined above; his main concern is with an active
versus a passive role, with only the latter problematic for those who
either are or will become citizens. Zeno, the founder of Stoicism,
was, according to his contemporaries, only attracted to men, and his
thought did not have prohibitions against same-sex sexuality. In
contrast, Cicero, a later Stoic, was dismissive about sexuality in
general, with some harsher remarks towards same-sex pursuits (Cicero,
1966, 407-415).



The most influential formulation of natural law theory was made by
Thomas Aquinas in the thirteenth century. Integrating an Aristotelian
approach with Christian theology, Aquinas emphasized the centrality of
certain human goods, including marriage and procreation. While Aquinas
did not write much about same-sex sexual relations, he did write at
length about various sex acts as sins. For Aquinas, sexuality that was
within the bounds of marriage *and* which helped to further
what he saw as the distinctive goods of marriage, mainly love,
companionship, and legitimate offspring, was permissible, and even
good. Aquinas did not argue that procreation was a necessary part of
moral or just sex; married couples could enjoy sex without the motive
of having children, and sex in marriages where one or both partners is
sterile (perhaps because the woman is postmenopausal) is also
potentially just (given a motive of expressing love). So far
Aquinas' view actually need not rule out homosexual sex. For
example, a Thomist could embrace same-sex marriage, and then apply the
same reasoning, simply seeing the couple as a reproductively sterile,
yet still fully loving and companionate union.



Aquinas, in a significant move, adds a requirement that for any given
sex act to be moral it must be of a generative kind. The only way that
this can be achieved is via vaginal intercourse. That is, since only
the emission of semen in a vagina can result in natural reproduction,
only sex acts of that type are generative, even if a given sex act
does not lead to reproduction, and even if it is impossible due to
infertility. The consequence of this addition is to rule out the
possibility, of course, that homosexual sex could ever be moral (even
if done within a loving marriage), in addition to forbidding any
non-vaginal sex for opposite-sex married couples. What is the
justification for this important addition? This question is made all
the more pressing in that Aquinas does allow that how broad moral
rules apply to individuals may vary considerably, since the nature of
persons also varies to some extent. That is, since Aquinas allows that
individual natures vary, one could simply argue that one is, by
nature, emotionally and physically attracted to persons of one's
own gender, and hence to pursue same-sex relationships is
'natural' (Sullivan, 1995). Unfortunately, Aquinas does
not spell out a justification for this generative requirement.



More recent natural law theorists, however, have presented a couple of
different lines of defense for Aquinas' 'generative
type' requirement. The first is that sex acts that involve
either homosexuality, heterosexual sodomy, or which use contraception,
frustrate the purpose of the sex organs, which is reproductive. This
argument, often called the 'perverted faculty argument',
is perhaps implicit in Aquinas. It has, however, come in for sharp
attack (see Weitham, 1997), and the best recent defenders of a
Thomistic natural law approach are attempting to move beyond it (e.g.,
George, 1999a, dismisses the argument). If their arguments fail, of
course, they must allow that some homosexual sex acts are morally
permissible (even positively good), although they would still have
resources with which to argue against casual gay (and straight)
sex.



Although the specifics of the second sort of argument offered by
various contemporary natural law theorists vary, they possess common
elements(Finnis, 1994; George, 1999a). As Thomists, their argument
rests largely upon an account of human goods. The two most important
for the argument against homosexual sex (though not against
homosexuality as an orientation which is not acted upon, and hence in
this they follow official Catholic doctrine; see George, 1999a, ch.15)
are personal integration and marriage. Personal integration, in this
view, is the idea that humans, as agents, need to have integration
between their intentions as agents and their embodied selves. Thus, to
use one's or another's body as a mere means to one's
own pleasure, as they argue happens with masturbation, causes
'dis-integration' of the self. That is, one's
intention then is just to use a body (one's own or
another's) as a mere means to the end of pleasure, and this
detracts from personal integration. Yet one could easily reply that
two persons of the same sex engaging in sexual union does not
necessarily imply any sort of 'use' of the other as a mere
means to one's own pleasure. Hence, natural law theorists
respond that sexual union in the context of the realization of
marriage as an important human good is the only permissible expression
of sexuality. Yet this argument requires drawing how marriage is an
important good in a very particular way, since it puts procreation at
the center of marriage as its "natural fulfillment"
(George, 1999a, 168). Natural law theorists, if they want to support
their objection to homosexual sex, have to emphasize procreation. If,
for example, they were to place love and mutual support for human
flourishing at the center, it is clear that many same-sex couples
would meet this standard. Hence their sexual acts would be morally
just.



There are, however, several objections that are made against this
account of marriage as a central human good. One is that by placing
procreation as the 'natural fulfillment' of marriage,
sterile marriages are thereby denigrated. Sex in an opposite-sex
marriage where the partners know that one or both of them are sterile
is not done for procreation. Yet surely it is not wrong. Why, then, is
homosexual sex in the same context (a long-term companionate union)
wrong (Macedo, 1995)? The natural law rejoinder is that while vaginal
intercourse is a potentially procreative sex act, considered in itself
(though admitting the possibility that it may be impossible for a
particular couple), oral and anal sex acts are never potentially
procreative, whether heterosexual or homosexual (George, 1999a). But
is this biological distinction also morally relevant, and in the
manner that natural law theorists assume? Natural law theorists, in
their discussions of these issues, seem to waver. On the one hand,
they want to defend an ideal of marriage as a loving union wherein two
persons are committed to their mutual flourishing, and where sex is a
complement to that ideal. Yet that opens the possibility of
permissible gay sex, or heterosexual sodomy, both of which they want
to oppose. So they then defend an account of sexuality which seems
crudely reductive, emphasizing procreation to the point where
literally a male orgasm anywhere except in the vagina of one's
loving spouse is impermissible. Then, when accused of being reductive,
they move back to the broader ideal of marriage.



Natural law theory, at present, has made significant concessions to
mainstream liberal thought. In contrast certainly to its medieval
formulation, most contemporary natural law theorists argue for limited
governmental power, and do not believe that the state has an interest
in attempting to prevent all moral wrongdoing. Still, most proponents
of the "New Natural Law Theory" do argue against
homosexuality, and against legal protections for gays and lesbians in
terms of employment and housing, even to the point of serving as
expert witnesses in court cases or helping in the writing of
*amicus curae* briefs. They also argue against same sex
marriage (Bradley, 2001; George, 1999b). There have been some
attempts, however, to reconcile natural law theory and homosexuality
(see, for example, Lago, 2018; Goldstein, 2011). While maintaining the
central aspects of natural law theory and its account of basic human
goods, they typically either argue that marriage itself is not a basic
good (Lago), or that the sort of good it is, when understood in a less
narrow, dogmatic fashion, is such that same-sex couples can enjoy it.
Part of the theoretical interest in these arguments is that they allow
for a moral evaluation of sexuality, still requiring it to realize the
basic good of friendship if it is to be permissible, while avoiding
what seem to be the various problematic aspects of contemporary
natural law theorists' denigration of same-sex sexuality in any
form.


## 4. Queer Theory and the Social Construction of Sexuality



With the rise of the gay liberation movement in the post-Stonewall
era, overtly gay and lesbian perspectives began to be put forward in
politics, philosophy and literary theory. Initially these often were
overtly linked to feminist analyses of patriarchy (e.g., Rich, 1980)
or other, earlier approaches to theory. Yet in the late 1980s and
early 1990s queer theory was developed, although there are obviously
important antecedents which make it difficult to date it precisely.
There are a number of ways in which queer theory differed from earlier
gay liberation theory, but an important initial difference becomes
apparent once we examine the reasons for opting for employing the term
'queer' as opposed to 'gay and lesbian.' Some
versions of, for example, lesbian theory portrayed the essence of
lesbian identity and sexuality in very specific terms:
non-hierarchical, consensual, and, specifically in terms of sexuality,
as not necessarily focused upon genitalia (e.g., Faderman, 1985).
Lesbians arguing from this framework, for example, could very well
criticize natural law theorists as inscribing into the very "law
of nature" an essentially masculine sexuality, focused upon the
genitals, penetration, and the status of the male orgasm (natural law
theorists rarely mention female orgasms).



This approach, based upon characterizations of 'lesbian'
and 'gay' identity and sexuality, however, suffered from
three difficulties. First, it appeared even though the goal was to
critique a heterosexist regime for its exclusion and marginalization
of those whose sexuality is different, any specific or
"essentialist" account of gay or lesbian sexuality had the
same effect. Sticking with the example used above, of a specific
conceptualization of lesbian identity, it denigrates women who are
sexually and emotionally attracted to other women, yet who do not fit
the description. Sado-masochists and butch/fem lesbians arguably do
not fit this ideal of 'equality' offered. A second problem
was that by placing such an emphasis upon the gender of one's
sexual partner(s), other possible important sources of identity are
marginalized, such as race and ethnicity. What may be of utmost
importance, for example, for a black lesbian is her lesbianism, rather
than her race. Many gays and lesbians of color attacked this approach,
accusing it of re-inscribing an essentially white identity into the
heart of gay or lesbian identity (Jagose, 1996).



The third and final problem for the gay liberationist approach was
that it often took this category of 'identity' itself as
unproblematic and unhistorical. Such a view, however, largely because
of arguments developed within poststructuralism, seemed increasingly
untenable. The key figure in the attack upon identity as ahistorical
is Michel Foucault. In a series of works he set out to analyze the
history of sexuality from ancient Greece to the modern era (1980,
1985, 1986). Although the project was tragically cut short by his
death in 1984, from complications arising from AIDS, Foucault
articulated how profoundly understandings of sexuality can vary across
time and space, and his arguments have proven very influential in gay
and lesbian theorizing in general, and queer theory in particular
(Spargo, 1999; Stychin, 2005).



One of the reasons for the historical review above is that it helps to
give some background for understanding the claim that sexuality is
socially constructed, rather than given by nature. Moreover, in order
to not prejudge the issue of social constructionism versus
essentialism, I avoided applying the term 'homosexual' to
the ancient or medieval eras. In ancient Greece the gender of
one's partner(s) was not important, but instead whether one took
the active or passive role. In the medieval view, a
'sodomite' was a person who succumbed to temptation and
engaged in certain non-procreative sex acts. Although the gender of
the partner was more important in the medieval than in the ancient
view, the broader theological framework placed the emphasis upon a sin
versus refraining-from-sin dichotomy. With the rise of the notion of
'homosexuality' in the modern era, a person is placed into
a specific category even if one does not act upon those inclinations.
It is difficult to perceive a common, natural sexuality expressed
across these three very different cultures. The social constructionist
contention is that there is no 'natural' sexuality; all
sexual understandings are constructed within and mediated by cultural
understandings. The examples can be pushed much further by
incorporating anthropological data outside of the Western tradition
(Halperin, 1990; Greenberg, 1988). Yet even within the narrower
context offered here, the differences between them are striking. The
assumption in ancient Greece was that men (less is known about Greek
attitudes towards women) can respond erotically to either sex, and the
vast majority of men who engaged in same-sex relationships were also
married (or would later become married). Yet the contemporary
understanding of homosexuality divides the sexual domain in two,
heterosexual and homosexual, and most heterosexuals cannot respond
erotically to their own sex.



In saying that sexuality is a social construct, these theorists are
not saying that these understandings are not real. Since persons are
also constructs of their culture (in this view), we are made into
those categories. Hence today persons of course understand themselves
as straight or gay (or perhaps bisexual), and it is very difficult to
step outside of these categories, even once one comes to see them as
the historical constructs they are.



Gay and lesbian theory was thus faced with three significant problems,
all of which involved difficulties with the notion of
'identity.' Queer theory arose in large part as an attempt
to overcome them. How queer theory does so can be seen by looking at
the term 'queer' itself. In contrast to gay or lesbian,
'queer,' it is argued, does not refer to an essence,
whether of a sexual nature or not. Instead it is purely relational,
standing as an undefined term that gets its meaning precisely by being
that which is outside of the norm, however that norm itself may be
defined. As one of the most articulate queer theorists puts it:
"Queer is ... *whatever* is at odds with the normal,
the legitimate, the dominant. *There is nothing in particular to
which it necessarily refers*. It is an identity without an
essence" (Halperin, 1995, 62, original emphasis). By lacking any
essence, queer does not marginalize those whose sexuality is outside
of any gay or lesbian norm, such as sado-masochists. Since specific
conceptualizations of sexuality are avoided, and hence not put at the
center of any definition of queer, it allows more freedom for
self-identification for, say, black lesbians to identify as much or
more with their race (or any other trait, such as involvement in an S
& M subculture) than with lesbianism. Finally, it incorporates the
insights of poststructuralism about the difficulties in ascribing any
essence or non-historical aspect to identity.



This central move by queer theorists, the claim that the categories
through which identity is understood are all social constructs rather
than given to us by nature, opens up a number of analytical
possibilities. For example, queer theorists examine how fundamental
notions of gender and sex which seem so natural and self-evident to
persons in the modern West are in fact constructed and reinforced
through everyday actions, and that this occurs in ways that privilege
heterosexuality (Butler, 1990, 1993). Also examined are medical
categories, such as 'inverts' and intersexuality, which
are themselves socially constructed (Fausto-Sterling, 2000, is an
erudite example of this, although she is not ultimately a queer
theorist). Others examine how language and especially divisions
between what is said and what is not said, corresponding to the
dichotomy between 'closeted' and 'out,'
especially in regards to the modern division of
heterosexual/homosexual, structure much of modern thought. That is, it
is argued that when we look at dichotomies such as natural/artificial,
or masculine/feminine, we find in the background an implicit reliance
upon a very recent, and arbitrary, understanding of the sexual world
as split into two species (Sedgwick, 1990). The fluidity of categories
created through queer theory even opens the possibility of new sorts
of histories that examine previously silent types of affections and
relationships (Carter, 2005).



Another critical perspective opened up by a queer approach, although
certainly implicit in those just referred to, is especially important.
Since most anti-gay and lesbian arguments rely upon the alleged
naturalness of heterosexuality, queer theorists attempt to show how
these categories are themselves deeply social constructs. An example
helps to illustrate the approach. In an essay against gay marriage,
chosen because it is very representative, James Q. Wilson (1996)
contends that gay men have a "great tendency" to be
promiscuous. In contrast, he puts forward loving, monogamous marriage
as the natural condition of heterosexuality. Heterosexuality, in his
argument, is an odd combination of something completely natural yet
simultaneously endangered. One is born straight, yet this natural
condition can be subverted by such things as the presence of gay
couples, gay teachers, or even excessive talk about homosexuality.
Wilson's argument requires a radical disjunction between
heterosexuality and homosexuality. If gayness is radically different,
it is legitimate to suppress it. Wilson has the courage to be
forthright about this element of his argument; he comes out against
"the political imposition of tolerance" towards gays and
lesbians (Wilson, 1996, 35).



It is a common move in queer theory to bracket, at least temporarily,
issues of truth and falsity (Halperin, 1995). Instead, the analysis
focuses on the social function of discourse. Questions of who counts
as an expert and why, and concerns about the effects of the
expert's discourse are given equal status to questions of the
verity of what is said. This approach reveals that hidden underneath
Wilson's (and other anti-gay) work is an important
epistemological move. Since heterosexuality is the natural condition,
it is a place that is spoken from but not inquired into. In contrast,
homosexuality is the aberration and hence it needs to be studied but
it is not an authoritative place from which one can speak. By virtue
of this heterosexual privilege, Wilson is allowed the voice of the
impartial, fair-minded expert. Yet, as the history section above
shows, there are striking discontinuities in understandings of
sexuality, and this is true to the point that, according to queer
theorists, we should not think of sexuality as having any particular
nature at all. Through undoing our infatuation with any specific
conception of sexuality, the queer theorist opens space for
marginalized forms of sexuality, and thus of ways of being more
generally.



The insistence that we must investigate the ways in which categories
such as sexuality and orientation are created and given power through
science and other cultural mechanisms has made queer theory appealing
to scholars in a variety of disciplines. Historians and sociologists
have drawn on it, which is perhaps unsurprising given the role of
historical claims about the social construction of sexuality. Queer
theory has been especially influential in literary studies and
feminist theory, even though the dividing lines between the latter and
queer thinking is contested (see Jagose, 2009; Marinucci, 2010). One
of the most prominent scholars working in the area of gay and lesbian
issues in constitutional law has also drawn on queer theory to advance
his interrogation of the ways that US law privileges heterosexuality
(Eskridge, 1999). Scholars in postcolonial and racial analyses,
ethnography, American studies, and other fields have drawn on the
conceptual tools provided by queer theory.



Despite its roots in postmodernism and Foucault's work in
particular, queer theory's reception in France was initially
hostile (see Eribon, 2004). The core texts from the first
'wave' of queer theory, such as Judith Butler's and
Eve Sedgwick's central works, were slow to appear in French
translation, not coming out until a decade and a half after their
original publication. Doubtless the French republican
self-understanding, which is universalist and often hostile to
movements that are multicultural in their bent, was a factor in the
slow and often strenuously resisted importation of queer theoretical
insights. Similarly, queer theory has also been on the margins in
German philosophy and political philosophy. In sum, it is fair to say
that queer theory has had a greater impact in the Anglo-American
world.



Queer theory, however, has been criticized in a myriad of ways
(Jagose, 1996). One set of criticisms comes from theorists who are
sympathetic to gay liberation conceived as a project of radical social
change. An initial criticism is that precisely because
'queer' does not refer to any specific sexual status or
gender object choice, for example Halperin (1995) allows that straight
persons may be 'queer,' it robs gays and lesbians of the
distinctiveness of what makes them marginal. It desexualizes identity,
when the issue is precisely about a sexual identity (Jagose, 1996). A
related criticism is that queer theory, since it refuses any essence
or reference to standard ideas of normality, cannot make crucial
distinctions. For example, queer theorists usually argue that one of
the advantages of the term 'queer' is that it thereby
includes transsexuals, sado-masochists, and other marginalized
sexualities. How far does this extend? Is transgenerational sex (e.g.,
pedophilia) permissible? Are there any limits upon the forms of
acceptable sado-masochism or fetishism? While some queer theorists
specifically disallow pedophilia, it is an open question whether the
theory has the resources to support such a distinction. Furthermore,
some queer theorists overtly refuse to rule out pedophiles as
'queer' (Halperin, 1995, 62) Another criticism is that
queer theory, in part because it typically has recourse to a very
technical jargon, is written by a narrow elite for that narrow elite.
It is therefore class biased and also, in practice, only really
referred to at universities and colleges (Malinowitz, 1993).



Queer theory is also criticized by those who reject the desirability
of radical social change. For example, centrist and conservative gays
and lesbians have criticized a queer approach by arguing that it will
be "disastrously counter-productive" (Bawer, 1996, xii).
If 'queer' keeps its connotation of something perverse and
at odds with mainstream society, which is precisely what most queer
theorists want, it would seem to only validate the attacks upon gays
and lesbians made by conservatives. Sullivan (1996) also criticizes
queer theorists for relying upon Foucault's account of power,
which he argues does not allow for meaningful resistance. It seems
likely, however, that Sullivan's understanding of
Foucault's notions of power and resistance is misguided.


## 5. Conclusion



The debates about homosexuality, in part because they often involve
public policy and legal issues, tend to be sharply polarized. Those
most concerned with homosexuality, positively or negatively, are also
those most engaged, with natural law theorists arguing for gays and
lesbians having a reduced legal status, and queer theorists engaged in
critique and deconstruction of what they see as a heterosexist regime.
Yet the two do not talk much to one another, but rather ignore or talk
past one another. There are some theorists in the middle. For example,
Michael Sandel takes an Aristotelian approach from which he argues
that gay and lesbian relationships can realize the same goods that
heterosexual relationships do (Sandel, 1995). He largely shares the
account of important human goods that natural law theorists have, yet
in his evaluation of the worth of same-sex relationships, he is
clearly sympathetic to gay and lesbian concerns. Similarly, Bruce
Bawer (1993) and Andrew Sullivan (1995) have written eloquent defenses
of full legal equality for gays and lesbians, including marriage
rights. Yet neither argue for any systematic reform of broader
American culture or politics. In this they are essentially
conservative. Therefore, rather unsurprisingly, these centrists are
attacked from both sides. Sullivan, for example, has been criticized
at length both by queer theorists (e.g., Phelan, 2001) and natural law
theorists (e.g., George, 1999a).



Yet as the foregoing also clearly shows, the policy and legal debates
surrounding homosexuality involve fundamental issues of morality and
justice. Perhaps most centrally of all, they cut to issues of personal
identity and self-definition. Hence there is another, and even deeper,
set of reasons for the polarization that marks these debates.