Hybrid. Ruth Colker
concludes that we cannot identify homosexuals except by their conduct. Conduct, however, is broadly defined to include both “public displays of homosexual affection” and “self-proclamation of homosexual tendencies.” The latter aspect of conduct acknowledges the existence of a celibate homosexual who publicly proclaims his or her sexual feelings or desires. By the end of the quoted passage, however, the court has forgotten this part of the conduct definition because it concludes that one cannot distinguish between individuals who are predisposed toward homosexual conduct and those who engage in such conduct. But, if “conduct” included self-proclamations by individuals not currently engaged in relationships, then, of course, one could readily distinguish between the two categories. The Bowers conduct rule, which only related to homosexual activity, would then be inapposite to the Cincinnati initiative which regulated homosexuals irrespective of their current sexual activity.
Many problematic assumptions underlie the Court of Appeals’ decision in the Cincinnati case. First, the court assumes that definitional problems are unique to the area of sexual orientation. Identification problems make gay, lesbian, and bisexual people ineligible for suspect class treatment but somehow do not cause problems for racial or religious minorities. But, racial identification can be equally difficult. As Judy Scales-Trent so vividly demonstrates in her book, Notes of a White Black Woman, one can be black but look white.9 Yet, it is unthinkable that a court would deny suspect class treatment to blacks because we cannot correctly identify all blacks through visual observation. The court assumes that most gay, lesbian, and bisexual people choose to be invisible or closeted. It is only a small minority through public displays of affection (that could and should be curtailed) that become identifiable as gay or lesbian.
Second, the court assumes that bisexuals do not exist. Although the initiative specifically mentions “bisexuals” as does the Human Rights Ordinance, the court never considers the application of the initiative to bisexuals. Instead, it limits its discussion to “homosexuals” who are found to exist only through their conduct and not through their identity. Such reasoning causes monogamous bisexuals to be labeled as heterosexual or homosexual, depending on the sex of their current partner. Under the court’s reasoning, it would not be possible for a woman, like myself, who is married to a man (thereby meeting the “public display of heterosexual affection” test) to hold myself out as a bisexual. The court assumes that public displays of affection and self-proclamations will be consistent along the bipolar categories of heterosexual and homosexual. Thus, although the court rejects the ease with which we can define people’s sexual orientation, the court adopts a very bipolar notion—one is homosexual if one engages in public displays of affection with someone of the same sex and one is heterosexual if one engages in public displays of affection with someone of the opposite sex. Bisexuals do not exist.
Given the court’s perverse logic, the political and legal implications of the Cincinnati decision are amusing to consider. Let us assume, for example, that an organization in Cincinnati decides to allow individuals to join if they will sign a piece of paper saying that they are predisposed to find people of the same sex sexually attractive. (One can join even if one also finds individuals of the opposite sex to be sexually attractive.) If you sign the paper, you became an official member of the “H” club. Could the city of Cincinnati then pass an ordinance protecting members of the “H” club from being discriminated against? If so, could the voters of Cincinnati pass a referendum prohibiting the city from granting special protection to members of “H” club? In such a case, the members of “H” club would be discrete and identifiable. They would be definable without reference to their conduct. Of course, members of the gay, lesbian, and bisexual communities are currently members of the “H” club but the Sixth Circuit Court of Appeals mistakenly believes that most gay, lesbian, and bisexual people are in the “closet” when they are not engaged in public displays of affection. And, unfortunately, such decisions as the Cincinnati case drive gay, lesbian, and bisexual people into the “closet” because such cases take away their newly granted nondiscrimination protections. As we will see below, courts and legislatures consistently encourage gay, lesbian, and bisexual people to remain closeted. Self-deprecating gay, lesbian, and bisexual people, who attempt to hide and criticize their own sexual orientation, are rarely targeted by anti-gay policy measures. The message from the Sixth Circuit is that gay, lesbian, and bisexual individuals do not need or deserve nondiscrimination protection because they have the choice of remaining closeted or, in the case of bisexuals, heterosexual.
B. The State of New Hampshire: Conduct-Based Definition of Homosexuality
The Sixth Circuit limited the definition of homosexuals to individuals who engage in same-sex conduct in order to facilitate an initiative aimed at hurting gay men, lesbians, and bisexuals. The New Hampshire Supreme Court, by contrast, narrowed the definition of homosexuals so as not to include all individuals who have engaged in same-sex conduct. An individual could thus move from Cincinnati to New Hampshire and be reclassified from a homosexual to a heterosexual. (Neither court, of course, would consider labeling an individual who had engaged in both same-sex and opposite-sex conduct as a bisexual.)
In 1987, the state of New Hampshire passed a bill barring “homosexuals” from adopting children, being foster parents, or working in day care centers. This was its definition of “homosexual”:
a homosexual is defined as any person who performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another person of the same gender.10
This definition divided people into two stark categories: heterosexual or homosexual. Any act of same-sex sexual activity made a person homosexual. Presumably, most bisexuals would be labeled as homosexuals under this definition. Moreover, homosexuality was defined exclusively on the basis of sexual experience. Sexual orientation was equated with sexual experience rather than sexual desire or identity. Thus, a bisexual or homosexual who had not yet experienced sexual relations with individuals of the same sex would be labeled a heterosexual.
Because of the blatantly coercive aspects of this bill against individuals classified as homosexuals, the New Hampshire House of Representatives was concerned about its constitutionality. Pursuant to the New Hampshire Constitution’s rules regarding advisory opinions, it sought an opinion from the New Hampshire Supreme Court concerning its constitutionality.
The New Hampshire Supreme Court (including now-U.S. Supreme Court Justice David Souter) advised the state legislature that this bill would be constitutional in the adoption and foster care setting but not in the day-care setting. In determining the constitutionality of the bill, the court, however, was troubled by the definition of homosexuality. It stated: “This very narrow definition of homosexual behavior contains no requirement that the acts or submission thereto be uncoerced, nor does there appear to be any temporal limitation regarding when the acts are to have occurred.”11 Because the court believed that the statute was too broad in defining homosexuality, it decided to assume that the homosexual acts had to be voluntary and knowing. Moreover, the court created this temporal rule:
we interpret the definition’s present tense usage to mean that the acts bringing an individual within the definition’s ambit must be or have been committed or submitted to on a current basis reasonably close in time to the filing of an adoption. This interpretation thus excludes from the definition of homosexual those persons who, for example, had one homosexual experience during adolescents, but who now engage in exclusively heterosexual behavior.12
This commentary by the state Supreme Court was an attempt to narrow the New Hampshire definition to include only individuals who were currently engaging in same-sex sexual activity. A person who engaged in same-sex sexual activity only at a young age could be excluded from the definition based on the combination of the coercion and timing exceptions. Because the event had occurred in the distant past, one did not have to consider this event to be indicative of the individual’s current identification. The fact that the event had not recurred even might be evidence that the individual was repulsed by such activity. Moreover, if the individual could allege coercion then the label “homosexual” would not apply at all. This definition had the effect of excluding bisexuals from its definition if the bisexual was currently engaged