Foreword: "you are entering a gay and lesbian free zone" (1): on the radical dissents of Justice Scalia and other (post-) queers.

• Author: Harcourt, Bernard E.
• Position: Raising Questions About Lawrence, Sex Wars, and the Criminal Law

The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, (2) will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. (3) The Court's ruling is the coup de grace to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal law representations. (4) Henceforth--or at least until further notice--majoritarian morality no longer automatically trumps liberal argument (whether consequentialist or deontological) in defining the reasonable and permissible contours of the penal code. Justice Byron White's infamous declaration in Bowers v. Hardwick that the criminal law is constantly, and may properly be, "based on notions of morality" (5) no longer stands. Instead, Justice John Paul Stevens's contrary statement from his dissent in Bowers is elevated, in block quote, to supreme law of the land: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." (6) With much pomp and circumstance, the majority in Lawrence inters legal moralism and crowns liberal legalism. (7) As a matter of federal due process, courts reviewing penal legislation must now deploy some other principle to distinguish between permissible and impermissible majoritarian moral opprobrium.

What that other principle will consist of is not clear. Justice Anthony Kennedy's opinion for the majority in Lawrence offers a dizzying array of possibilities, ranging from the watered-down harm principle of the American Law Institute's Model Penal Code, to evolving standards of morality as reflected in the history of state legislative enactments (and repeal) of sodomy provisions, to the critical commentary of reputedly conservative American academic judges such as Charles Fried and Richard Posner, to international law decisions of the European Court of Human Rights, to the 1957 British Wolfenden Report of the Committee on Homosexual Offenses and Prostitution, to the Romer v. Evans equal protection anti-animosity principle, to state judicial resistance to the Bowers ruling, to conceptions of privacy, notions of dignity, or what Cass Sunstein refers to as "an American version of desuetude." (8) The result is a rhetorical smorgasbord of legal authority, a judicial melange of bibliographic references. As Mary Anne Case observes, the Lawrence opinion points to a "this" and "that" of ambiguous referents--it is, in Case's words, an opinion that "starts its readers off with this and in the end may deliver that instead." (9)

Justice Kennedy's pastiche in Lawrence is, at a legal theoretical level, incoherent, and under normal circumstances--in many other cases--would be internally contradictory. As a jurisprudential matter, utilitarian welfare maximizing or harm calculations are anathema to a deontological human rights paradigm, which in turn is in tension with jurisdictional bean-counting. These different rules of decision have little in common except, of course, when they converge on the same result, which is apparently the case here--or at least, it is the case for decriminalizing homosexual sodomy. The theoretical incoherence and rhetorical overkill of Justice Kennedy's opinion lends credence to Justice Antonin Scalia's incendiary dissent in Lawrence, specifically to the idea that the majority's holding is no technical knock-out victory for liberal legalism, but rather a politically or culturally partisan decision.

To Justice Scalia, the majority in Lawrence simply took sides in our contemporary culture wars over the sexual and moral fabric of American society. The Lawrence ruling, Justice Scalia declares, is a partisan outcome that aligns the court with the pro-gay faction in large part because of a law profession that is biased in favor of gay men and lesbian women. "It is clear from this [decision] that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed," Justice Scalia writes. (10) "Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda...." (11) These are fighting words--a battle cry, a call to arms in our contemporary culture wars--and according to the Associated Press, Justice Scalia has continued to wage war outside the courthouse. Several months after the Lawrence decision, Justice Scalia reportedly ridiculed the majority's ruling in a speech to the Intercollegiate Studies Institute, reading from Justice Kennedy's opinion with "a mocking tone," and deriding the majority for imposing, in his words, "the latest academic understanding of liberal political theory." (12)

Despite the vitriolic tone, Justice Scalia's dissent is remarkably insightful--in certain respects prescient--in situating the Lawrence decision in its proper social and political context, and it offers a useful heuristic to help interpret the result. The fact is, there is today a war of sexual projects that is being fought on American soil, and the federal courts, including the United States Supreme Court, are inextricably caught up in the ongoing battles. But what is missing in Justice Scalia's critique are the important nuances and subtleties that shape these contemporary sex wars, that make them so fascinating and so unpredictable--and that both resignify and ambiguate the purported gay victory in Lawrence.

The heart of the problem is that Justice Scalia incorrectly models our contemporary culture wars on two-sided military conflict--specifically on a war between, on the one hand, liberal homosexual activists who are promoting a pro-gay-rights agenda and the law profession with its "anti-anti-homosexual culture," and, on the other hand, mainstream anti-homosexual attitudes represented by those "[m]any Americans [who] do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home." (13) This two-party model does not--and cannot--begin to capture the complex social, political, and sexual dynamics of our contemporary sex wars. While it is true, of course, that everyone, if pushed to the limit, is either "for" or "against" the legalization of homosexual relations--just as everyone, again if pushed to the limit, is either "for" or "against" abortion, "for" or "against" the death penalty, "for" or "against" gun control--it is necessary to focus not simply on the ultimate polarity but rather on the much wider range 'of sexual projects in order to begin to understand the unexpected alliances, unanticipated tipping points, and surprising truces that characterize our sex wars. Instead of two-sided military conflict, the model should approximate more fluid and shifting patterns of temporary equilibria in a continually interrupted, jarred, and hence moving medium.

Our present sexual landscape in the United States--and in the West more generally--is marked by a multiplicity of sexual projects, at times ambiguous and fluid, at other times rigid, doctrinaire, even fascistic; sometimes overlapping or allied, at other times in tense conflict; some militant and hard, others nurturing, warm, even embracing; some exclusionary, some missionary. The battle lines are drawn not only over the sex of sexual partners--that's the least of it--but over multiple dimensions of promiscuity, monogamy, (14) child custody, sadomasochism, commitment, "fisting," (15) public sex, female-to-male sex change operations (and male-to-female), "barebacking" and "bug chasing," (16) importuning, "role-playing," (17) "piercing" and "cutting," "packing," (18) "fancying," (19) marrying, childbearing, adopting, pornography, and sexual assault--to name just a few. The very definitions of heterosexual, homosexual, bi-, trans-, poly-, metro-, pomo-sexual, lesbian, queer--again, to name just a few--are fought over, (20) even whether the labels themselves should be abandoned. The academy, the courts, the media and public sphere have witnessed an explosion of sexual projects and related discourses of sexuality.

If a male worker on an all-man oil rig is held down by his fellow guy workers while they deliberately put their penises up against his body, if he is threatened with same-sex rape, is he the victim of sexual harassment under Title VII, as Justice Scalia writing for a unanimous court makes possible in Oncale v. Sundowner Offshore Services, Inc., (21) or should the lower federal court reread the factual allegations in a manner that ambiguates sexual desire, as Janet Halley, professor at Harvard Law School, ingeniously and provocatively suggests in Sexuality Harassment? (22) Could it be, as Halley writes, that the alleged victim in Oncale "performs a feminine man to signal his willingness to be mastered," that "the other guys comply with a big display of masculinity," so that "'man fucks woman' but with a twist that undoes the capacity of the male/female model to underwrite [the plaintiff Oncale] as a victim"? (23) Could it be, as Halley suggests, that in reality it is the plaintiff alleging sexual harassment who may be attacking his fellow guy workers "by invoking the remarkable powers of the federal court to restore his social position as heterosexual?" (24) And would we really want the average juror or Justice Scalia using their common sense to resolve these questions? (For the skeptical or unaccustomed reader, try mapping this on the rape allegations of the...