Ask yourself what common features unite the following list of practices: bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity. To be sure, each of these practices involves sexualized conduct of one sort or another. Apart from their general sexual character, however, these forms of erotic expression seem to share precious little in common. They involve a wide spectrum of hedonic preferences and an extremely varied range of acts. Moreover, they evoke wildly disparate social meanings and cultural referents. In the minds of most people, for example, having sex with a stranger for money has little in common with having sex with an animal. Having sex with a sibling seems quite different from having sex with a partner who is not your spouse. Being married to two people simultaneously seems quite unlike autoeroticism.
These dissimilarities notwithstanding, the law unites these divergent practices into a coherent category. These are all forms of sexual expression that have traditionally met with legal disapproval and, quite often, criminal sanctions. (1) In fact, in his dissent in Lawrence v. Texas, Justice Scalia invokes these practices seriatim for precisely this reason. After the Court's opinion overturning Bowers v. Hardwick and striking down as unconstitutional Texas's same-sex sodomy statute, Justice Scalia bemoans predictively, all of these traditionally illicit practices will be protected by the Constitution and will lie beyond the reach of state regulation. (2) Justice Scalia is so confident about the potential repercussions of Lawrence that, based solely on the argument in his dissent, one would think that the Court's opinion in Lawrence rendered unintelligible, within the parameters of the Federal Constitution, any legal category of illicit sex--that is, of legally disfavored sexual practices subject to restriction or prohibition.
On its own terms, however, the Court's opinion in Lawrence does no such thing. (3) Despite the depth of Justice Scalia's ire, his dissent and Justice Kennedy's opinion for the Court notably share a common commitment to maintaining a robust category of sexual practices that can be legally prohibited; they simply disagree about whether or not
same-sex sodomy belongs in that category. According to Justice Kennedy, although states may no longer criminalize private, adult, consensual, same-sex sodomy, they may still criminalize other forms of sexual behavior. States remain entitled to draw this distinction because, in the Court's view, these other forms of still-illicit intimacy are meaningfully different than the type of sexual relationship at stake in and protected by Lawrence. Justice Scalia's dissent notwithstanding, then, the Court's opinion in Lawrence actually takes pains to reinforce the existence of an intelligible legal line between illicit and licit sex, even as the watershed holding moves across the line one particular form of intimacy--private, consensual sex between adults of the same sex.
To locate the line between licit and illicit sexual expression, Lawrence carefully distinguishes the relationship between John Geddes Lawrence and Tyron Garner, the defendants in the case, from the traditionally prohibited forms of sexual expression allegedly unaffected by the Court's holding (presumably, relationships and practices such as those on Justice Scalia's list of horribles). In drawing these distinctions, the opinion's language implicitly delineates some of the respective features of licit and illicit sex. (4) For instance, the Court points out, the sex between Lawrence and Garner involved only two people (a traditional marker of licitness); it was not polyamorous (a traditional marker of illicitness). (5) Both partners were of majority (a marker of licitness), so there was no concern about either sex between minors (a marker of illicitness) or sex between an adult and a minor (another marker of illicitness). (6) The sex was consensual (licit), not coercive (illicit). (7) Furthermore, in three salient senses, the sexual relationship between Lawrence and Garner was private (licit), not public (illicit). (8) First, the sexual acts in question occurred in a home, not in public space. (9) Second, the relationship did not involve the public market, that is, prostitution. (10) Finally, and perhaps most significantly, the relationship was about gratifying personal commitments and desires, not about claiming public rights or entitlements. As the Court states, the relationship between Lawrence and Garner did "not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." (11) Lawrence and Garner, in other words, never sought to formalize their relationship as a marriage. Seeking such public entitlements, of course, would not have been illicit in the sense that prostitution or sex in public spaces are illicit; that is, attempting to marry would not have subjected Lawrence and Garner to criminal prosecution. Nonetheless, the Court's analysis suggests that the absence of any claim to the public goods of marriage--like the absence of sexual acts in public spaces or the public market economy--influenced its decision to view the sex between Lawrence and Garner as entitled to constitutional protection. The absence of a claim to marriage, in other words, seemingly bolstered the licit nature of Lawrence and Garner's conduct--conduct that, in the Court's words, was not simply about sexual satisfaction but rather could constitute "but one element in a personal bond that is more enduring." (12)
Notably, given the Court's pointed analysis, none of the legal arguments raised in the Lawrence litigation involved marriage at all. Lawrence and Garner never intimated to the Court the slightest desire for either the social trappings or the legal privileges of marriage. Yet each of the three major opinions in the case--Justice Kennedy's opinion, Justice O'Connor's concurrence, and Justice Scalia's dissent--shadow boxes with the specter of same-sex marriage. Justices Kennedy and O'Connor each take pains to distinguish their respective arguments from those that would favor a right to same-sex marriage. If Lawrence and Garner had sought to marry, Justice Kennedy suggests, that would have been different. Likewise, in her concurrence holding the Texas sodomy statute unconstitutional on equal protection grounds, Justice O'Connor differentiates between the unconstitutional prohibition of same-sex sex and the constitutional prohibition of same-sex marriage. According to Justice O'Connor, Texas could not punish the relationship between Lawrence and Garner because the state "cannot assert any legitimate state interest here, such as ... preserving the traditional institution of marriage." (13) That case would be different, she posits, because "[u]nlike the moral disapproval of same-sex relations--the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." (14) By contrast, Justice Scalia's dissent envisions a direct slippery slope between the holding in Lawrence and constitutional protection for same-sex marriage. In different ways, then, each of these opinions goes out of its way to link the movement of a sexual activity over the illicit-licit line to the institution of marriage, despite the fact that the case involved no claim to marriage. Legal discussions of licit and illicit sex seemingly raise the specter of marriage even when the parties to the particular case do not.
This Article is about the relationships among legal definitions of sexual illicitness, legal definitions of sexual licitness, and legal constructions of marriage. It argues that Lawrence's modern approach to defining these relationships should be understood in light of the history of judges' and lawmakers' attempts to use marriage to locate and police the boundary between the categories of licit and illicit sex. In this Article, therefore, I situate Lawrence not within the historical context offered by the opinion itself--the history of sodomy laws and the legal regulation of same-sex sex (15)--but rather within the history of past federal attempts to define a broad category of illicit sex. Specifically, I analyze the intertwined histories of two federal statutory provisions that created explicit legal categories of illicit sex: the "immoral purpose" provisions of the Immigration Act of 1907 and the White-Slave Traffic Act of 1910 (also known as the Mann Act). Each of these provisions prohibited the movement of women across certain borders--the former, international, the latter, interstate--for either prostitution or "other immoral purposes." (16) The limiting contours of this vague "immoral purpose" language lay in the interpretive principle of ejusdem generis: When a law refers to something specific-like "prostitution"--and then refers to a more general category-like "immoral purpose"--the general category should be construed to apply to things that are of the same type, or genus, as the specific term. (17) The statutory provisions, in other words, did not apply to all forms of immoral behavior, only sexual immoralities, of which prostitution was understood to be the prototype. (18) These provisions of the Immigration and White-Slave Traffic Acts thus forced courts and lawmakers to define, however unscientifically, the elements of the genus of sexual immorality. In so doing, they eschewed philosophical notions of immorality and, with little explicit methodology, classified what forms of sexual expression properly inhabited the category of illicit sex.
These "immoral purpose" provisions, therefore, offered judges and lawmakers the occasion to think carefully about the broad category of prohibited sexual relations--a category that hovers ominously over legal discussions of particular forbidden...