Coming out: decision-making in state and federal sodomy cases.

• Author: Ayres, Susan

The law is meant to be a way in which people can live together in spite of their differences.

--James Boyd White(1)

[J]ustice is the relation to the other.

--Jacques Derrida(2)

INTRODUCTION

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society.(3) In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights.(4) Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."(5)

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription of "the straight mind," the social construct grounded in and perpetuating the heterosexual paradigm.(6) Although deconstruction informs the argument, the Wallace Stevens poem A High-Toned Old Christian Woman(7) is used as an extended metaphor for the analysis of judicial reasoning in selected state and federal sodomy cases. The first half of the poem reads:

Poetry is the supreme fiction, madame. Take the moral law and make a nave of it And from the nave build haunted heaven. Thus, The conscience is converted into palms, Like windy citherns hankering for hymns. We agree in principle. That's clear. But take The opposing law and make a peristyle, And from the peristyle project a masque Beyond the planets. Thus, our bawdiness, Unpurged by epitaph, indulged at last, Is equally converted into palms, Squiggling like saxophones. And palm for palm, Madame, we are where we began.(8) In this poem, addressed to "A High-Toned Old Christian Woman," Stevens describes two possible worlds: a "nave" (i.e., the central part of a cathedral) derived from "the moral law," and a "peristyle" (i.e., columns surrounding a temple or court) derived from "the opposing law." Although the moral law satisfies the "conscience," the opposing law "indulge[s]" it. So, although "we agree in principle" with the consequences of the moral law, Stevens preferred the "bawdiness" of the opposing law and "imagined a world where sexuality was to be indulged and displayed like the sounds of the words themselves."(9)

A High-Toned Old Christian Woman serves as a metaphor for judicial reasoning in sodomy cases. As argued in this Article, Bowers v. Hardwick(10) represents the "haunted heaven" built from the "moral law" concerning homosexuality and sodomy. In this frequently-cited decision,(11) the Supreme Court upheld Georgia's sodomy law. Bowers contrasts with state decisions that have stricken sodomy laws, such as Commonwealth v. Wasson,(12) State v. Morales,(13) Campbell v. Sundquist,(14) and Gryczan v. State.(15) These cases "take ... [t]he opposing law and make a peristyle" rejecting Bowers v. Hardwick.

Wallace Stevens, who was a lawyer in addition to being a poet, was undoubtedly well-acquainted with the phenomenon of legal reasoning in which the analysis of a specific set of facts could result in widely disparate conclusions.(16) Just as Stevens attempted to rout out "the flaccid underside of any dogmatic position,"(17) this Article joins numerous others which criticize Bowers' flaccid foundation.(18) Specifically, it illustrates how Bowers produces the straight mind and examines whether other cases successfully subvert that production. Also asked is what happens when we consider the ethical implications of these sodomy decisions. Can the law incorporate an ethics of care for the other, or must it continue to oppress the other?

To lay the foundation for answering these questions, Part I defines the straight mind and traces its historical development relying primarily on the work of Michel Foucault.(19) Part II briefly defines deconstruction and considers features of a deconstructive reading.(20) This deconstructive approach provides a practical and pragmatic technique to interrogate judicial reasoning and to change injustice. Part III critiques Bowers by showing how the decision incorporates or reinscribes the straight mind.(21) Part IV presents several state decisions that rejected Bowers' reasoning and argues that even though these state decisions reject Bowers and come to an opposite conclusion, they are not always completely successful in rejecting the straight mind.(22) Although examining how the law produces the straight mind constitutes an ethical endeavor, Part V focuses on three problems that more obviously concern ethical issues: (i) the failure to acknowledge violence encouraged by the straight mind; (ii) the failure to enforce sodomy statutes; and (iii) the failure to inculcate an ethics of inclusion or care for the other.(23) Sodomy cases apply universal laws, i.e., civil liberties that try to protect individual rights in a pluralistic society. In applying these universal laws, however, the cases fail to reconciliate self and other, and thus illustrate a cardinal binary interrogated by deconstruction: the subject/object or subject/other.(24) As will be argued below, the appearance of reconciliation usually indicates that the writing is a "product of ideological distortion, suppression of difference or subordination of the other."(25)

1. THE STRAIGHT MIND

   The straight mind is the social construct or law that regulates sexuality.(26) According to Monique Wittig, who coined the term, the rhetoric or discourses of the straight mind "are those which take for granted that what founds society, any society, is heterosexuality."(27) She points out that, at the beginning of the twentieth century, the term "heterosexuality" was coined as the opposite of "homosexuality."(28) The evolution of the straight mind cannot be traced because "[i]t has sneaked into dialectical thought ... as its main category."(29) Wittig castigates "the oppressive character that the straight mind is clothed in ... to immediately universalize its production of concepts into general laws which claim to hold true for all societies, all epochs, all individuals."(30)

   In addition to universalizing general laws, the straight mind also wields power over those it oppresses.(31) A necessary consequence of the straight mind is the oppression of the "different/other"--of the other sex, other race.(32) The straight mind cannot function "economically, symbolically, linguistically, or politically" without domination over the other.(33) Thus, although the straight mind may unite male and female as a pair, it oppresses female as the other, just as it oppresses the homosexual or gay as other.(34)

   The French philosopher Michel Foucault has traced the historical development of the heterosexual imperative in his three-volume work, The History of Sexuality.(35) Foucault analyzes sex as power relations, rather than as the result of "repression or law."(36) He argues that sexuality is not a "natural given," but:

   [i]t is the name that can be given to a historical construct: not a furtive reality that is difficult to grasp, but a great surface network in which the stimulation of bodies, the intensification of pleasures, the incitement to discourse, the formation of special knowledges, the strengthening of controls and resistances, are linked to one another, in accordance with a few major strategies of knowledge and power.(37) Defining "power" as the "multiplicity of force relations immanent in the sphere in which they operate and which constitute their own organization,"(38) Foucault theorizes that in the eighteenth century, four measures formed specific mechanisms of power and knowledge regarding sex: (i) analyzing female bodies as sexual and hysterical; (ii) protecting and preventing children's sexual potential; (iii) conducting social and economic studies of procreative behavior; and (iv) clinically analyzing perverse pleasure.(39) Although all four are significant to his history of sexuality, the fourth is of special importance to an examination of sodomy decisions. The standard for determining perverse pleasures was the heterosexual institution.(40) In analyzing Foucault's thesis, Judith Butler explains that in the historical construction of sex, heterosexual desire not only established the male/female gender binary, but also regulated sexual practices.(41)

   As a historical matter, Foucault reports that up to the end of the eighteenth century, sex was regulated based on the marriage relationship by canonical law, the Christian pastoral, and civil law.(42) During this period, these three codes emphasized the unlawful conduct that broke marriage vows or sought strange pleasures.(43) As Foucault indicates, "[p]rohibitions bearing on sex were essentially of a juridical nature."(44) This emphasis changed in the eighteenth and nineteenth centuries when codes and institutions were less concerned with the sexuality of the legitimate couple than with the sexuality of others.(45) Based on his historical survey, Foucault argues that the type of power that the nineteenth century wielded over sexuality was not law or taboo, not "an age of increased sexual repression," but an age that extended various forms of sexuality.(46) What was scrutinized during this period was the sexuality of children, the insane, and the homosexual.(47) Thus, in the nineteenth century there were fewer legal codes relating to sexual offenses, but, in scrutinizing the sexuality of the unnatural, medicine and other institutions exercised greater power to define and manage sexual practices,(48) especially "peripheral sexualities."(49) For instance, medicine transformed the sodomite from "a temporary aberration" to a defined psychiatric "species."(50)

   In looking at how power constructs sexuality, which is not a "natural given," Foucault imagines "a multiplicity of discursive elements" that exist in different contexts and that are not necessarily consistent:

   discourse can be both an instrument and an effect of power...