The future of sodomy.

• Author: Adler, Libby

The contaminant of sex, the redeeming corruption that de-idealizes the species and keeps us everlastingly mindful of the matter we are. (1)

INTRODUCTION

One evening in 1998, John Lawrence and Tyron Garner went to Lawrence's house and engaged in anal intercourse. (2) Upon seeing them go inside a malevolent neighbor contacted the police and falsely claimed to have heard a gunshot coming from the direction of the house. (3) When the police responded to the call, they stumbled upon Lawrence and Garner in the midst of the forbidden sexual act. (4) The police arrested the two men for violating the Texas anti-sodomy statute, (5) thereby initiating the case that brought the eventual demise of the notorious Bowers v. Hardwick, (6) the 1986 decision in which the Court rejected a challenge to Georgia's antisodomy law, holding that the Constitution did not confer a fundamental right upon homosexuals to engage in sodomy. (7)

Lawrence and Garner spent the night in jail, pled no contest to the facts, were fined $200 each, and left the courthouse convicted sex offenders. (8) Texas law is more lenient than that of about a dozen other states: If the Texas convictions had stood, they would have carried no prison time, (9) though the convicted men would have been barred from certain professions, including--in a law as ironic as it is ill-conceived--interior design. (10) Further, in some states to which they might have wished to move, Lawrence and Garner would have had to register as sex offenders. (11)

The convictions were affirmed in the state appellate courts. (12) Then, incredibly, the United States Supreme Court granted certiorari on a matter that had been addressed fewer than twenty years before, and proceeded to strike down the Texas anti-sodomy law as a violation of the substantive due process guarantee of the Fourteenth Amendment. (13)

There can be no doubt about it: 2003 was a good year for sodomy. Bowers was a blight on American constitutional jurisprudence, one that rightly drew endless criticism from commentators spanning the political spectrum. (14) In this Article, I unreservedly cast my lot with the many observers who celebrate Lawrence v. Texas as a tremendous advance in civil rights. Rather than be lulled into complacency, however, I also read Lawrence with an eye toward the future, scouring the opinion for danger signs, and--I regret to report--I have found five.

By "danger signs," I mean to suggest that I write as a legal realist in a Holmesian sense, that is, I am interested in prediction. (15) What good or bad might come of the Lawrence decision? To what use might the opinion be put by courts deliberating on future cases? This, of course, raises in turn the question of what is meant by "good or bad." In short, I take as my yardsticks the following: "Good" means pro-sex and anti-identity, while "bad" means suspicious of sex (a.k.a. "sex negativity") and pro-identity. Below, I elaborate on each of these two yardsticks and then measure the Lawrence opinion against them.

1. PRO-SEX

   1. The Pro-Sex Yardstick

      Pro-sex thinking encompasses the views of a number of writers who might also fall under the broad categories of "feminist," such as Gayle Rubin and Judith Butler, or "queer," such as Duncan Kennedy and Michael Warner. I borrow from all four, and explain what I take from each in this sub-part.

      1. Gayle Rubin

         In her classic essay Thinking Sex: Note for a Radical Theory of the Politics of Sexuality, (16) Gayle Rubin identifies five "ideological formations" relative to sexuality, two of which I rely on in this Article. (17) First, Rubin observes that western culture "treats sex with suspicion" and "requires pretexts" for "the exercise of erotic capacity, intelligence, curiosity, or creativity ... that are unnecessary for other pleasures such as the enjoyment of food, fiction or astronomy." (18) She calls this tendency "sex negativity" and opposes it. (19) I will examine the Lawrence opinion for a tendency to portray sex as fundamentally suspect or requiring justification.

         Second, Rubin calls for a highly tolerant and "pluralistic sexual ethics" which would rest on "a concept of benign sexual variation," in which sexual practices need not "conform to a single standard." (20) Rubin would no doubt find cause for celebration in the Lawrence Court's provision of constitutional protection to a broader range of sexual activity than was protected before it, as do I. The pro-sex inquiry does not, however, end there. Benign sexual variation, at least as I employ the concept, would also require an inquiry into whether the newly protected acts are protected at the expense of imperiling a broader array of acts, or even the same acts committed in other contexts, including places and relationships.

      2. Judith Butler

         Judith Butler's description of the "pro-sexuality [position] within feminist theory and practice" (21) also lends something important to my analysis. "[S]exuality is always constructed within the terms of discourse and power," Butler explains, so that any "postulation of a normative sexuality that is 'before,' 'outside,' or 'beyond' power is a cultural impossibility and a politically impracticable dream, one that postpones the concrete and contemporary task of rethinking subversive possibilities for sexuality and identity within the terms of power itself." (22)

         I take from Butler the added facet of the pro-sex position that while sex is a site of power relations that are sometimes undesirable from a feminist perspective, it is unhelpful to attempt to insulate sex from power, or to analytically segregate sex that is untainted by power from sex that is tainted by power. Such an attempt at analytical segregation is unrealistic and, as a result, counter-productive in that it diverts our attention from more plausible avenues to progressive change that are premised on acceptance of the presence of power in sex. (23) Following Butler, I will judge the Lawrence opinion based on the extent to which it demonizes the power dimension of sex, and attempts in its analysis to separate out for constitutional protection only that sex which is free of the impurities of power.

      3. Duncan Kennedy

         Another facet of what I am calling the "pro-sex" position comes from Duncan Kennedy, who, in his essay Sexual Abuse, Sexy Dressing, and the Eroticization of Domination, (24) sets forth an elaborate assessment of the costs and benefits to men and women associated with regulation of the sexual abuse of women, and the resultant relative bargaining power between the sexes. I will borrow only a small piece from Kennedy's analysis.

         Kennedy takes as a premise that the more aggressive a regime's efforts are to eradicate the sexual abuse of women by men, the more often some instances of enforcement will be overzealous and result in error. (25) "There is," Kennedy explains, "a peculiar symmetry between the burden of excess enforcement and the burden of tolerated abuse. To get rid of one, you have to have the other." (26) This creates "a real conflict of interests" between men and women over the degree to which the legal regime will tolerate abuse or excess enforcement. (27) To the extent that abuse is tolerated, "it spares men, abusive and nonabusive, the burden of excess or inaccurate enforcement [as well as] the burden of precautions against the risk of excess enforcement." (28) One implication of this is that "increased enforcement would make men hesitate to take altogether innocent initiatives toward women, [while an increased] tolerated residuum [of abuse] makes women hesitate to take altogether innocent initiatives toward men." (29) Kennedy, who acknowledges that some degree of regulation and some residuum of abuse will always be present, (30) is not a libertarian on this issue; he is willing to risk a certain amount of excess enforcement because he also believes that, as a heterosexual man, (31) he has something to gain from women's security, i.e., that "women might fantasize, play, experiment and innovate more, and perhaps more happily, if there were less ... danger [of abuse]." (32) The calculus can get complicated, much more so in Kennedy's essay, with lots of costs and benefits to parties who are neither perpetrators nor victims of abuse.

         One plausible response to the problem of sexual abuse is to favor aggressive regulation of sex, including the broadest possible definitions of rape and harassment, even if that policy tendency might carry costs associated with excess enforcement. (33) Part of what I take to be the pro-sex position is a rejection of this approach. I read the "sexy dressing" calculus to have utility beyond heterosexual relations, to suggest a more general symmetry between the protection of people (not just women) from sexual behavior and the protection of people (not just men) from the burdens of excess enforcement. Any regime will have to err on one side or the other. (34) An aspect of my pro-sex yardstick, therefore, will require an inquiry into whether Lawrence errs on the side of protecting people from some sex at the cost of putting a lot of other sex at risk of exclusion from constitutional protection.

      4. Michael Warner

         The final dimension of what I take to be the pro-sex position concerns what Michael Warner has dubbed "the politics of sexual shame." (35) "Perhaps because sex is an occasion for losing control, for merging one's consciousness with the lower orders of animal desire and sensation, for raw confrontations of power and demand, it fills people with aversion and shame." (36) Sex affords no escape from shame for Warner, leading him to pose the question not "how do we get rid of sexual shame?," but rather "what will we do with our shame?" (37) To Warner's chagrin, the all-too-frequent "response to shame seems to be: more shame." (38)

         It is not so much the primary shame associated with sex that I am concerned with here, but the secondary "more shame." One manifestation of this secondary shame is what Warner...