Surviving Lawrence v. Texas.

• Author: Spindelman, Marc

One can't go on writing forever about how hard it is to breathe.

--Vaclav Havel For Anonymous

INTRODUCTION

The lesbian and gay communities have reacted to the Supreme Court's decision in Lawrence v. Texas (1)--striking down state sodomy laws on Due Process grounds (2)--with unbridled enthusiasm. Lawrence has variously been praised as an unmitigated victory for lesbian and gay rights, (3) a turning point in our community's history, (4) and the moment when we have gone from second-class political outcasts to constitutional persons with first-class rights. (5)

Obviously, something remarkable happened in Lawrence. In an opinion written by Justice Anthony Kennedy, the Court declared that John Geddes Lawrence and Tyrone Garner, who had been convicted under Texas's sodomy law making consensual same-sex sexual activity illegal, are no longer sexual criminals. According to Lawrence, homosexuals like Lawrence and Garner are "entitled to respect for their private lives." (6) Therefore, Lawrence teaches, the State cannot "demean their existence or control their destiny" (7) by making private homosexual sexual conduct a crime. The Constitution affords lesbians and gay men "the full right to engage in their conduct without intervention of the government," (8) and to engage in that conduct without sacrificing their "dignity as free persons." (9) After Lawrence, sodomy bans, and not the lesbians and gay men that they had previously made outlaws, are "derelicts on the waters of the law." (10)

The recognition by the Supreme Court of the United States that lesbians and gay men are human beings who have "dignity as free persons" that is deserving of "full" (11) constitutional respect is itself a monumental breakthrough. Lawrence is the first Supreme Court decision in American history that openly acknowledges this. Not a generation ago, the Court scoffed at the suggestion. Speaking for the Court in Bowers" v. Hardwick, (12) Justice Byron White dismissed the notion, accepted by Lawrence, that same-sex sexual intimacies deserve substantive constitutional protection. For Justice White, the very idea was preposterous; "at best, facetious," (13) he famously said. Even Charles Fried, Ronald Reagan's former Solicitor General, thought that Justice White's Hardwick opinion was "stunningly harsh and dismissive." (14) The concurring opinion of then-Chief Justice Warren Burger, which endorsed William Blackstone's description of sodomy as "an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named[,]'" was even more so. (15)

Not surprisingly, a large segment of the gay community reacted with intense aversion to Hardwick, concluding (with reason) that it went beyond a simple affirmation of the constitutionality of sodomy laws to the constitutional legitimation of anti-gay animus (16)--an impression confirmed by judicial decisions that followed in its wake. (17) William Rubenstein captured the sentiments of countless lesbian women and gay men when he said: "I don't think about sex when I read Hardwick and I don't think about what sex acts are at issue [in the case]. I think how they hate me." (18)

Seen in contrast, Lawrence has been welcomed as everything Hardwick was not. If Hardwick was the case that toe-kicked lesbians and gay men in the face, (19) Lawrence is the case that brings them inside to tend and mend their wounds. Along the way to delivering lesbians and gay men dignity and substantive due process rights, the Lawrence Court even manages to apologize gently for the things it said and did in Hardwick. Lawrence embraces lesbians and gay men, going so far as to admit that Hardwick was wrong on the day it was decided, as it is wrong today. (20) Hence, "Bowers v. Hardwick should be and now is overruled." (21) To anyone whose life has been overshadowed, complicated, demeaned, occupied, even ruined by sodomy laws, rare is the flower that has smelled as sweet. Those who wept upon hearing the Supreme Court announce its decision in Lawrence (quite a few, according to press reports (22)) must have understood that the Constitution's freedoms delivered are a singularly magnificent thing.

It is thus easy to appreciate the reasons the Supreme Court's decision in Lawrence has generated a palpable euphoria within the lesbian and gay communities and among a number of their heterosexual allies. But much more difficult to understand--and unnoticed until now--is what the Court's Lawrence opinion looks like to people concerned with inequality between the sexes. From the standpoint of these concerns, Lawrence raises some unmistakable danger signs. Before explaining what they are, I begin with an account of how they arise.

1. LAWRENCE'S "LIKE-STRAIGHT" LOGIC

   During the course of the Supreme Court litigation in Lawrence v. Texas, lesbian and gay rights advocates broadly united to urge the Court to accept a simple postulate when ruling in the case. (23) In the course of raising both Due Process and Equal Protection challenges to Texas's sodomy law, lesbian and gay rights advocates maintained: Gays are just like heterosexuals. The normative power of this "like-straight" idea came from the presumptive goodness of heterosexuality, a sexual status that is socially sacrosanct and legally protected. (24) Proponents of this like-straight argument thus said: Lesbians and gay men, being just like heterosexuals, are entitled to all the rights heterosexuals receive, and for the same reasons.

   To show how good gay could be, the lesbian and gay rights briefs in Lawrence went out of their way to praise heterosexuality over and over again. One romantic depiction of heterosexual, hence homosexual, "domestic bliss," for instance, appeared in the brief filed by eighteen of our country's leading constitutional law scholars. (25) This Law Professors' Brief told the Court that: "By interfering with the interest gay people share with all other adults [read: heterosexuals] in making choices about their private consensual sexual activity, [Texas's sodomy law] also interferes with the relationships gay couples develop." (26) For a long time, the Brief went on to remind the Justices, the Supreme Court had recognized how important heterosexual sexual intimacy is. (27) And "It]his is true," the Brief intoned, "for gay people no less than for heterosexuals. (28)

   Just in case anyone--or anyone who happened to sit on the High Bench (29)--was unaware of the breezy similarities between homosexuals and heterosexuals, the Law Professors' Brief detailed some of the ways that "gay people," just like heterosexuals, "form couples and create families that engage in the full range of everyday activities, from the most mundane to the most profound." (30) Gay people, for example, "shop, cook, and eat together." (31) (Who knew?) They "celebrate the holidays together, and share one another's families." (32) They even "make financial and medical decisions for one another" (33) and "rely on each other for companionship and support." (34) In sum, "[m]any gay couples share 'the duties and the satisfactions of a common home.'" (35) In these and other ways, the Law Professors' Brief insisted, as did other lesbian and gay rights briefs in the case, (36) that homosexuals are just like heterosexuals and, consequently, should be afforded all the same rights and privileges that heterosexuals receive.

   As a litigation tactic, this like-straight line of argument achieved its desired effect. (37) The Court accepts it--and so basically that it animates the Court's opinion at every major analytic turn along the way to its conclusion that the Constitution protects a right to sexual intimacy, (38) including its discussion of history, of contemporary legal norms, and of precedent.

   With its examination of the history of sodomy laws, the Court clears away a significant doctrinal obstacle for declaring that homosexuality is just like heterosexuality: the claim, traceable at least to Bowers v. Hardwick, that the two should be treated as fundamentally different because historically they were. Emphatically rejecting Hardwick's assertion that legal proscriptions against homosexual sodomy have "'ancient roots,'" Lawrence declares that, "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter." (39) Lawrence speculates that the reason for this may be, as many historians following Michel Foucault have argued, (40) that "the homosexual as a distinct category of person did not emerge until the late 19th century." (41) Careful to avoid placing too much weight on this view, the Court continues, "early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally." (42)

   In saying so, the Court takes pains to point out that it does not mean to suggest historical approval of what it itself thinks of as "homosexual conduct" (43) in the early American period. But it does believe that the historical evidence "tend[s] to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons." (44) If so, it follows that the history of sodomy laws could not support--much less justify-treating homosexuality as different than heterosexuality.

   Having disposed of this old canard, the Court develops an affirmative history of sodomy laws that emphasizes their nonenforcement whether homosexuality or heterosexuality was involved. The Court states in broad terms--terms that on their own treat homosexuality and heterosexuality alike--that in the nineteenth century, "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." (45) Records of sodomy prosecutions and convictions in this era, for instance, are said to show that what the State sought to punish through sodomy bans were "predatory acts against those who could...