Separated by Differences : How Do the Laws of the Land Institutionalize Discrimination? : CREATED EQUAL: Why Gay Rights Matter to America, <i> By Michael Nava and Robert Dawidoff (St. Martin’s Press: $16.95; 144 pp.)</i>

We live today in a fragmented culture, a place of sectarianism and special interests, where the focus tends more to the things that separate us than to the things we share. It’s an unfortunate development--although, perhaps, inevitable, given the promises this country has made and broken to the disenfranchised over the years--for it comes with an accompanying narrowness of vision, a sense that we should just pay attention to our own back yards. Yet despite history’s failings, the essential strength of American democracy has always been its goal of community, its philosophy of empowerment for all. Michael Nava and Robert Dawidoff note in “Created Equal: Why Gay Rights Matter to America”: “Identity politics based on ethnicity, gender, class, or religion is the order of the day. But the faith remains . . . that liberty is advanced by the wider access of all sorts of people to fundamental civil and human rights.”

“Created Equal” is an attempt to apply the rhetoric of the Civil Rights movement to the cause of gay equality, bypassing the issue’s more emotional aspects in favor of a carefully considered argument for “the principle of equal protection under the law.” Originally prompted by Governor Wilson’s September, 1991, veto of “a bill that would have prohibited discrimination in employment on the basis of sexual orientation,” Nava and Dawidoff--the former a lawyer, the latter a professor of history at the Claremont Graduate School--contend that homosexual rights are not a matter of special treatment, but rather a classic case of minority empowerment that has relevance to everyone, straight or gay, who believes in America’s democratic ideals.

This assertion is so clearly true that it hardly seems, at first glance, to need restating. It’s only common sense that the laws of a free nation should be applied equally, no matter what. But common sense has little to do with the attitudes of people who “think that (they) neither want nor need to know about gays and lesbians,” and it is to them that the authors have addressed this book.

Beginning with a discussion of sodomy statutes--even now, oral and anal sex is illegal in 23 states--they expose the institutionalized intolerance faced by homosexuals in the U.S. “Sodomy laws,” they explain, “however lax or intermittent their enforcement, are the foundation of discrimination, hindering family formation and preventing legalized same-sex marriage. They justify second-class citizenship and cannot be looked upon honestly without acknowledging that they still stigmatize certain citizens, making them virtual outlaws, and encourage and reinforce prejudice against those citizens whether or not they break the law.”

With that as a starting point, Nava and Dawidoff discuss the ways in which legislation and discrimination interact. Why, they ask, are gay couples denied the right of matrimony, and the consequent benefits--financial, legal and emotional--it allows? How could homosexuality be sufficient cause for a Virginia woman to lose custody of her child?

Central to their argument is the 1986 case of Bowers vs. Hardwick, in which the Supreme Court upheld Georgia’s sodomy law after it was challenged by a gay man arrested in his own home for being in bed with another man. Although the court had consistently extended the right of heterosexual privacy in cases such as Roe vs. Wade, Justice Byron White concluded in Bowers that “constitutional guarantees of liberty do not ‘extend a fundamental right to homosexuals to engage in acts of consensual sodomy. . . . Proscriptions against that conduct have ancient roots.’ ” But, as Nava and Dawidoff rightly suggest, the idea that something should be proscribed because it has always been so is ridiculous, a logic of prejudice, not of law. To drive home the point, they quote none other than Oliver Wendell Holmes: “It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

For all the power of its arguments, however, “Created Equal” has its problems, principally the authors’ propensity for academic language, and their distracting habit of reiterating major themes. In addition, their tendency to harp on the evils of fundamentalist religion becomes a little tiresome after a while. I’m no fan of the religious right, but when it comes to homosexual equality, Christian zealots are just the most visible of the opposition forces; as Nava and Dawidoff themselves admit, “the revulsion many men and women feel at the thought of sexual activity between people of their own sex remains a formidable obstacle on the path of gay rights.”

Such qualifications to the contrary, Nava and Dawidoff appear at times consumed by the idea that “the opposition to gay rights is the advance guard of the religious right’s wholesale invasion of the political life of this country. . . . Although gays are the present target of the counterrevolution, the rest of America is not far behind.” It is, in fact, the subject of “Created Equal’s” longest chapter, a 38-page jeremiad called “God Hates Fags,” which, although powerful and moving, relates only indirectly to the legal questions at the heart of the book.

Given the indifference, if not the outright hostility, most of the straight America has toward homosexuality, I can understand the temptation to tie gay rights to some larger specter of oppression that should concern us all. At the same time, though, I disagree with the contention that the religious right has shaped anti-gay attitudes to suit its own cause. More likely, it is the attitudes that have fostered an environment where fundamentalists can plant their poison and watch it take root--a truth even Nava and Dawidoff seem to recognize. “We do not expect that if constitutional protections are extended to gay and lesbian Americans, the derogatory stereotypes and beliefs about them will immediately disappear,” they write. “But if they are ever to disappear, the state must, at the very least, stop perpetuating them by using them to deny gays and lesbians their basic rights.”

After all, if gay rights do matter to America--and of course they do--it’s not because they represent the front line in the battle against the religious right. Instead, they matter because the diminishing of any citizen diminishes us all, because in a society that calls itself democratic, no one is truly free unless everyone is. That is the crux here, the issue that will not go away. And the sooner we accept it, the better off we’ll be.