Toward the end of the summer, a good friend of mine was arrested by the U.S. Department of Homeland Security for working at a company, Rentboy.com, that allowed adult escorts to advertise their services online.
A few days later, I followed the scandal over Kim Davis, the county clerk who was jailed for refusing to issue marriage licenses to same-sex couples down in Kentucky.
The two cases seemed related, in some way, and they were on my mind as I went about my regular business, preparing to teach my Yale lecture course on American literature. The first big book on the syllabus is Mark Twain’s The Adventures of Huckleberry Finn. I had been planning to talk about how Twain tried to reckon with the legacies of slavery. The author ended up trapping himself in paradoxes, I was going to argue, when he decided to dramatize a big historical problem as a conundrum for a white boy’s conscience; Huckleberry may tell himself that he’s conspiring to set Jim free, but what he really wants is to salve his own lonesomeness and shake off a sense of guilt.
Instead of drafting that lecture, though, I found myself preoccupied with a variation on the same theme: the improvised family that Huck and Jim make up on the river, as they go along, and their feeling that the raft might be carrying them, together, to some free place, beyond the reach of the law.
Before gay marriage, there was the gay marriage plot. Like most other plots in American literature, the gay marriage plot was also a race plot. Ishmael and Queequeg spooned under the counter-pane and knotted the monkey-rope, sailing away together on their “hearts’ honeymoon.” Natty Bumppo and Chingachgook, the last of the Mohicans, played house (they called it “camping”) in the upstate woods.
The pattern became so common that a great critic, Leslie Fiedler, built a whole theory of American literature around it. According to Fiedler, writers in the United States had swapped out the traditional European novel’s class-conscious, heterosexual courtship stories for the adventure of male bonding across racial lines. “An archetypal relationship,” he wrote (and he could really write), “haunts the American psyche: two lonely men, one dark-skinned, one white, bend together over a carefully guarded fire in the virgin heart of the American wilderness; they have forsaken all others for the sake of the austere, almost inarticulate, but unquestioned love which binds them to each other and to the world of nature which they have preferred to civilization.” When it wasn’t the woods, it was the whaleship or the raft.
These gay marriage plots indulged in campy white fantasies about exotic, primitive men, and their heroes ran away from women as fast as they could. Just after the Pequod took its first whale, the seamen dumped the last vestige of women’s influence, a temperance cup called “Aunt Charity’s gift,” into the ocean. Sitting around with his hands in a bucket full of sperm, grasping the fingers of his shipmates, Melville’s Ishmael reached an ecstasy that seemed infinitely more intense to him than the homely pleasures of “the wife” and “the saddle” (two objects that appeared equivalent to him, just then). But these characters weren’t only in flight from the company of women. They were in open rebellion against something more institutional, a coercion enshrined in churches and especially in laws. The classic American gay marriage plot was a fantasy about living in opposition to the normal way of life, the styles of respectability and productivity that had the police on their side.
“All right, then, I’ll go to hell,” says Huckleberry Finn as he decides to break the law. In this way, the nineteenth-century American romance of male-male companionship touched on one of the most incendiary political ideas of its time, the friction between public institutions and private conscience or, as it was sometimes expressed, between formal law and “higher law.” Henry Thoreau was a sweet hermit, not much interested in marriage plots, but his lecture on civil disobedience reflected on the same problem — when the government commands you to commit an immoral act, you may have to break the law to obey your sense of justice or of right. As for Melville, he wasn’t about to believe, with Thoreau, that he could ever purify himself of his complicities. But he knew about the higher-law crusade that had made its way to the courtroom of his father-in-law, the eminent Massachusetts judge Lemuel Shaw, during the fugitive slave cases of the 1850s. And one of Melville’s queerest fictions, Billy Budd, turned on the conflict between the codes of the empire and the sentiments of the heart.
In a book called The Oracle and the Curse, I wrote about the conflict between morality and the American legal system, with special attention to fiery speeches and books that gave voice to justice, as opposed to law. Some of the most spectacular examples came from the antislavery crusade. After the fugitive slave law of 1850, when the legislators and the judges agreed to protect the slave system, abolitionists tried to obstruct the operations of the courts. Against the sentences passed down from the bench, they appealed to the judgment of a righteous God. “I feel no consciousness of guilt,” wrote Old John Brown from a Virginia jail. There were real martyrs and heroes among them.
But here’s the thing about conscience: anybody can invoke it. You don’t have to be for liberation to play the martyr. Even Kim Davis can do it. “Today,” her lawyer said after she went to jail, “for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman.” Well, she wasn’t jailed for her belief. She was jailed for refusing to carry out her lawful duties and for contempt of court. But she says she holds the higher law in her heart.
On social media and on barstools, some of us who support the legalization of gay marriage were pretty nasty about Kim Davis. We made fun of her hair and her clothes. We went digging into her own love life (four marriages!). When she got locked up, we gloated. In other words, we acted like the kind of people who have the law and power on their side. Well, it had been a long time coming, and it was exciting, it was a novelty, to act this way. It took a hell of a struggle to get from gay marriage plots in the closet to gay marriages that must be recognized as sacred and legitimate. Now, thanks to the Supreme Court, we finally had the legal system on our side. When a Kentucky county clerk tried to stand in the way of marriage equality, we could expect the federal government to bring the hammer down.
Meanwhile, though, the same federal government—in the name of national security—was also arresting the people at Rentboy. They have not even been accused of harming anyone. Their business was arranging consensual encounters between adults. Their only offense, it seems to me, is against legality itself. Unlike the people seeking marriage licenses from Kim Davis’s office in Kentucky, though, they can’t point to a Supreme Court ruling to justify themselves. Before and after they were arrested, the people at Rentboy have been fierce advocates for the rights and safety of sex workers who are still unprotected by “marriage equality.” Likewise, defending Rentboy will mean letting go of our new attachment to the legal system. It will mean holding to a sense of justice and organizing political alliances in opposition to the letter of the law.
When you’ve got the legal system, you’ve got the police and the prisons, too. But sometimes it can start to feel like those are all you’ve got. These aren’t the times for celebrating incarceration; they might be the times for raising hell.
Caleb Smith: Working on a solo project.