This article does not attempt a history of the gay rights movement but instead traces the evolution of gay rights discourse by epitomizing the different types of rhetoric deployed by both sides. These epitomes are offered sequentially to give a sense of responsiveness and conversation. First, gays had to establish themselves as a minority social group through public rhetoric and action to present their claims. The first stage of the conversation was the deployment of "visibility rhetoric," containing brash, strongly affirmational messages. Second, the early dialogue was characterized by morality-based arguments against gay claims. This opposition, of affirmational arguments and what I will call "scourge rhetoric," was inhospitable to the rights claim. Third, pro-gay speakers created victimage rhetoric, presenting gays as objects of discrimination and violence. This rhetoric, which entailed arguments for narrowly focused protections, created a narrower dialogue more hospitable to the rights claim. Fourth, I argue that Bowers v. Hardwick shows how these rhetoric types function in judicial opinion and suggests that a window of persuasion is opening to pro-gay rhetors as the dialogue shifts. Fifth, I offer a close reading of California's 1991 gay rights dialogue to show how these rhetoric types are used strategically and interact in a public dialogue. The California dialogue is also an example of what I will argue is a "shifted discourse," in which old rhetorical oppositions have given way to new opposition more hospitable to gay rights advocates. Finally, I offer a prescription for gay rights claimants based on the foregoing analysis. I argue that the task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation. To that end, lesbian and gay activists communicate messages of group visibility and victimage to advance along the continuum of discourse. Gay rights opponents rely heavily on rhetoric of disapprobation, or scourge rhetoric, and their tactical objective is best described as centering discourse on the rhetoric of moral harm. An irony which doubles as a tactical problem is that the natural (at least symmetrical) response to scourge rhetoric, proclaiming the evil of gays, is affirmational rhetoric, declaring them good. The problem is that the general public is far more likely to tolerate than affirm gayness, so the tepid, halfway rhetoric of toleration may be a more effective counter to disapprobation than more heartfelt responses.
Andrew M. Jacobs,
The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969–1991,
72 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol72/iss3/4