Faculty Bibliography

In Don’t Janet E. Halley explains how the military's new anti-gay policy is fundamentally misdescribed by its common nickname, “Don't Ask/Don't Tell.” This ubiquitous phrase, she points out, implies that it discharges servicemembers not for who they are, but for what they do. It insinuates that, as long as military personnel keep quiet about their homosexual orientation and desist from “homosexual conduct,” no one will try to pry them out of their closets and all will be well.

My classmates Jim Tourtelott, Joe Sommer, and Eva Saks invented the Yale Journal of Law & the Humanities at a Mexican restaurant one night in the fall of 1987. When they announced their idea to me the next day, my first thought was: "Great, now there can be a place to publish the things I want to write." How greedy, and (to say the same thing in a different way) how abject! My reaction reflects not a sense of marginality or deviance (both of these always being tinged with an adventurous self-confidence that was quite absent from my attitude at that moment), but rather a sense of isolation. I could not have had this bland reaction to the proposed oasis unless I had accepted it as a given that my most urgent projects on the Law and Humanities borderline were mine alone. But the idea of the Journal swept through the law school and various graduate departments on a wave of excitement. Clearly I had not been alone and would not be able to imagine myself as isolated again.

Sex, Preference, and Family brings together seventeen eminent philosophers and legal scholars who offer illuminating and often provocative commentary on sexuality (including sexual behavior, sexual orientation, and the role of pornography in shaping sexuality), on the family (including both same-sex and single-parent families), and on the proper role of law in these areas. The essayists are all fiercely independent thinkers and offer intriguing and controversial proposals.

This Symposium inhabits two intersections: the intersection linking sexual orientation with other axes of social stratification, and the intersection linking the legal future to the legal past, legal reform to legal history. Francisco Valdes examines the relationship between sex and gender in Euro-American cultural and legal history to support a reform proposal on behalf of "sexual minorities"; Robert J. Morris excavates the cultural history of same-sex relationships in Hawai'i to support a claim that Hawaiian cultural preservation, mandated by the Hawai'i State Constitution, includes recognition of same-sex marriage; and Mary Coombs and Angela Harris provide critical comments on sociological, affiliative, intellectual, and historiographical intersections that structure Morris' and Valdes' claims. Valdes and Morris offer perhaps the most richly researched and polemically targeted cultural-historical accounts of sexual orientation in the law review literature. Particularly with the addition of Coombs' and Harris' critical responses, this Symposium frames the debate for queer legal history and historiography. It should be read under the immemorial motto: Those who don't study historiography are doomed to repeat it.

Taken together, these essays move beyond limiting notions of identity politics by locating historically forms of same-sex desire that are not organized in terms of modern definitions of homosexual and heterosexual.

Three recent scientific reports that purport to show a biological basis for homosexuality have changed the face of pro-gay equal protection litigation by making the argument from immutability more attractive. Professor Janet E. Halley critiques these studies and their reception in legal culture. Because immutability is not a requirement for successful pro-gay litigation, moreover, Professor Halley contends that pro-gay litigators who invoke the argument from immutability do so not only at their option, but at the risk of misrepresenting and dividing the community they hope to represent. She argues that progay legal argument should focus instead on common ground that adequately represents the self-conceptions of both pro-gay essentialists and pro-gay constructivists. And she suggests just such a common ground for more effectively articulating pro-gay equal protection arguments.

During the trial of the so-called Powder Men--Guy Fawkes and his co-conspirators in the Gunpowder Plot to blow up Parliament with the King, Queen, and heir apparent all in attendance-the King's Attorney General Sir Edward Coke presented into evidence a curious manuscript with two titles. The text's original name was A Treatise of Equivocation, but that had been scratched out and replaced with a new title, A Treatise Against Lying and Fraudulent Dissimulation. It had been discovered in the rooms which one of the conspirators had used in the Inner Temple, and mere possession of this book, Coke clearly thought, spoke loudly of all the defendants' guilt. By delaying the trial long enough to secure this manuscript, Coke ensured that he would be able to continue in a prosecutorial tradition he had established in the trial of the Jesuit Robert Southwell - a tradition of proving treason against English Catholics by representing them as ready equivocators. The Treatise of Equivocation was written to instruct priests sent on a "mission" established by the Society of Jesus, whose aim was to preserve the Catholic Church in the newest heathen territory, England. The Treatise prepared priests to face the perilous questions asked of them by official interrogators, who as enforcers of the Anglican settlement had devised a series of interrogatories widely known as the "bloody questions" because they could force a Catholic priest to elect between the Queen and the Pope. The stakes were high: the penalty for being a priest in England, an act of treason, was death by public torture.

Papers of the Sixteenth Annual Conference of the Center for Medieval and Early Renaissance Studies.

The works of John Donne, Henry Vaughan, Sir Thomas Browne and John Milton are informed by linguistic and poetic ideas embedded within them, ideas that can best be related to specific Neoplatonic conceptions of significance. Consistently, Neoplatonic thought holds that the form of a hieroglyphic statement corresponds to a precise consciousness or mental experience. The poem can thus be freed from any simple biographical relation to the poet, and established instead as an episode in a persona's linguistic behavior, the gestural manifestation of a precise epistemological and ontological situation. Linguistic or formal failure dramatizes the relationship between God and man just as precisely as incarnational metaphor. This divestiture of biographical readings redefines the Jack Donne/Dr. Donne dichotomy as a literary or mythic self-presentation, and argues the unity of Donne's oeuvre. The Songs and Sonnets operate through an erotic vocabulary and an incarnational poetics best understood by reference to the theological and linguistic ideas of the Family of Love, and Donne's devotional works establish a conversion-centered personal history, based primarily on the protestant hagiography of the preacher's life: in both halves of his career Donne seeks a fusion of speaker, speech and divine truth. Linguistic failure and personal annihilation, required for conversion to the perfect "speech" of divine union, give ironic form to "A Litanie" and numerous other poems, the Essayes in Divinity and the Devotions upon Emergent Occasions. Experience itself is the central theme of Vaughan's Silex Scintillans, just as the possibility of an individual life taking on divine form is central to Donne's oeuvre. The Cambridge Platonists show how an antilinguistic stance can result from a primary emphasis on direct experience of God as the only valid divine pedagogy: Vaughan's language, which does not attempt to express divine union, is characterized by semantic, syntactic and formal mutations bespeaking a material cosmos and a devotional consciousness in motion back to a single ultimate source. The dynamics of reading involve us, too, in a process of ascent. Browne designed Urn Burial and The Garden of Cyrus as a progress towards the real character as John Amos Comenius and the English universal-language projectors conceived it. In the first treatise ignorance generates formal disorder, while the second attempts to locate all knowledge in a preliminary encyclopedic order visually available in nature and in the treatise itself as the quincunx. As in Mannerist challenges to Neoplatonic ideal aesthetics, distortions of the quincunxial ideal result from confrontations with empirical observation, expressed here in an imperfect taxonomic fit of general and specific, abstract with concrete. Browne's attempts to render a still life image in language paradoxically exercise this central issue. While Browne works towards a real character understood as a concrete sign encompassing perfect knowledge of the cosmos, Milton's Samson Agonistes finally rejects both language and image. Mystagogic Neoplatonism, which finds suprarational truth only by transcending discourse and confronting the one in dark silence, provides a useful parallel to Milton's final poem, in which redeemed action can be attained and understood only by a direct sensuous participation in God. As Samson tells Harapha, "The way to know were not to see but taste." Samson's linguistic performance throughout the play, and his final withdrawal from the stage, repudiate both literary and visual exemplum as adequate doctrine and leave the poem opaque to those readers who cannot participate directly in divine truth. Its presentation as a closet drama, then, amounts to a direct formal challenge.