Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.

• Author: Backer, Larry Cata
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

Success in these matters is as mathematicians would say, a

function of the advance we have made in civilization.... We

must not expect too much from formal changes; we may put

our finger on this or on that which may be amended, and if it

is done it may help, but the fundamentals he elsewhere. You

get out of a community what there is in it,' ... and neither

laws nor principalities nor powers will in the end help you

one jot or tittle.(1)

Common wisdom has it that courts or juries "find" facts. Rules, legally binding conduct norms, are then applied to these facts in order to make a judgment about the culpability or liability of one party either to the state or to another. It is all supposed to be very mechanical. The subtlety is not in the narrative, but in the public policy choices over which courts must occasionally agonize, or more likely nowadays, defer to the agony of the legislature. My purpose here is to argue that the traditional model has it backwards. I believe that the standard model must be stood on its head in order to understand the real relationship between facts and norms in the following way:

Much of our jurisprudence is embedded in facts. The way we relate or find facts suggests the outcome; factual descriptions are inherently judgmental. They are judgmental in the way that words all tend to be at once descriptive as well as a judgment of the thing described: for example, the word whore. The basis of that judgment, of course, is the set of underlying socio-cultural norms of the society. This sort of judgment is intuitive; it is attached to the words we use to describe any thing or event without any effort on our part (other than in the choice we make of the words we use to describe). Thus understood, the facts themselves have strong jurisprudential qualities.

At this point, one might reasonably be heard to argue that any single set of facts gathered in a single case would tend to have limited value, even if the facts have jurisprudential value. But courts are in the business of collecting facts. And the facts so collected are published and widely disseminated among other judges. We assume case reports are important for their precedential value (in the particular jurisdiction) and also more generally for the way they may teach other judges how and why the "rules of general applicability" work. But the case reports become more important as the repositories of the stories they preserve about human behavior. Similar stories reported over and over and over begin to assume the status of truth. They begin to incorporate their own judgment in their very telling.

Thus, I hope to demonstrate to you that case reports are more valuable as repositories of narrative, than as a piece-meal common law rule books. The stories judges hear, retell and choose to preserve are the textbooks of applied cultural sociology from which the judiciary (primarily), but also the bar and general public, are taught to understand the world, and the underlying basic social norms on which society is based. In effect, the narrative of the cases provide the judiciary with its primer of the "way things work." As such, these collections of accumulated facts create repetitive realities. They are repetitive because they seem to occur in case after case reported to the judiciary. They are realities because they repeat; they assume the power of "common-knowledge" of human "nature." These realities are the "ground zero" from which all parties start in any judicial action. And the reality is essentially narrative based -- litigant folktales in which social (and legal) judgment is embedded into the telling of the story itself.

Because repetitive narrative serves as story with a moral, accumulated judicial reality affects litigation in two ways. First, these fabricated realities can affect the way a court views the set of facts in any singular case. It makes it possible for a court to judge a particular set of facts as "aberrational" (not conforming to the average pattern of facts which it has encountered before, personally or in the "literature"). Thus judged, such "aberrational" fact patterns can be dismissed or diminished, and the rule applied to the case as if the "average pattern" was before the court.

Second, the fabricated realities can be used to "fill in the blanks" in cases before a court. The jurisprudential qualities of these sets of accumulated factual realities are then used as a means of shortcutting "rules" and resisting challenges to these rules or the factual realities underlying them. This is especially apparent in cases where the court appears to be presented with "rogue" (nonconforming) facts.

But what is a court to do with "rogue" facts? How do courts "resist"? Courts are able to stay true to the factual wisdom amassed in the cases through a process of what I call narrative transmogrification. Transformation requires input. Courts use the stories of the litigants as "input." The courts then retell the received stories. These new stories usually appear as the "facts" of the case. Story becomes counter story which in turn becomes the basis for the rules which explains the way in which the story is retold. The judgment is in the retelling and not in the rule itself. In retelling stories, courts create the site within which constitutional standards can be altered or retained. The result will be obvious from the way in which a story is told. Jurisprudence, conventionally understood as the science of the rules applied by the courts, becomes an empty and backwards science.

Thus, properly understood, we can appreciate how narrative -- the way in which the courts mold the telling of the facts of a case -- can be far more important to a judgment than the rules used to justify the action taken. Rules are essentially post facto devices to regularize and articulate the conduct norms and social attitudes built into the way we choose to describe the thing, person or event we judge. This narrative transformation process is particularly evident where courts are asked to judge the propriety of rules regulating sexual conduct. It is especially evident in the stories constructed by state appellate courts.

In this essay, I will show just how this process of narrative transformation works by using a fairly spectacular example -- the way the law approaches issues of the criminal regulation of the sexual conduct of sexual non-conformists, particularly gay men. The example is spectacular because, is Justice Scalia explained, the "society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful."(2) The tension which arises from this social choice -- a project which offers decriminalization of "acts" in return for complete negation of any sort of public existence for the "homosexual -- has been embraced by progressives and traditionalists since the 1950's."(3) All of this baggage accompanies the gay man hauled into court on a charge related to his "gayness."

Part I explores the way in which the courts have used their learning from the last twenty-five or so years to craft an understanding of the gay man, which is then used to filter the stories which gay litigants bring to the courts. This section summarizes earlier work.(4) The microcosm of gay men hauled into court is small indeed. Gay men actually charged for violation of the criminal sex laws provide courts with a substantially closed universe of people who, typed and understood, are then used as a basis of generalizing about everyone else. In the case of gay men, in particular, this has resulted in the intuitive "understanding" by courts that all gay men fall into one of four categories -- predator, pedophile, whore or violator of the public space. It is the "rare" gay male who is not one of these creatures. The cases courts hear and hear about tell them that this must be so. This tendency to hear in this, way becomes perverse when out of the mouths of these "types" come a substantial portion of the demands for constitutional change. It is a rare court that overcomes these intuitive notions in confronting issues affecting individual gay men appearing before them.

The Appendix contains a listing of 223 cases in which state high courts considered constitutional challenges to state proscriptions of "sodomy" or "lewd conduct" between 1960 and 1996 (as well as some related cases). The cases are organized by date of decision and each contains a brief summary of its facts. The listing is substantially complete but by no means exhaustive; it is meant to be a representative sample only. It is the tip of the iceberg; the experience of state courts with the narratives of sexual non-conformists is considerably broader than the cases in which such statutes were challenged on constitutional grounds. But as I will show, it is also extremely narrow, constituting an unrepresentative slice of the "gay" population.

Part II examines the way courts use these learned typologies to engage in the intuitive project of narrative transformation. For this purpose, I concentrate on three recently decided state high court cases.(5) Each of the cases involved substantially the same set of facts: public solicitation of private sexual conduct between men. In the factual narratives of the three cases, this singular story was transformed in a unique way. Each of the stories was different; each was constructed from out of the accumulated realities the court understood about the defendant before them. These different stories could then be used as the basis of three different legal results. In Christensen and Sawatzky, the court concentrated on stories of uncontrolled whorishness and public display of shameless conduct and used this sense of vileness to resist constitutional reinterpretation of the sodomy and solicitation statutes. In Wasson, the court concentrated on the private consummation of sexual desire to...