June 15, 2018: The Supreme Court and Progress: Lawrence v. Texas

[On June 12^th, 1967, the Supreme Court ruled in Loving v. Virginia to strike down all remaining laws prohibiting interracial marriage. So this week I’ll AmericanStudy Loving and four other cases in which the Court helped advance social progress, leading up to a special weekend post on the role of courts and judges in our own society!]

On two historical contexts for a shockingly recent case, and a reminder it still offers us.

When I teach Henry James’s The Turn of the Screw (1898), one of the historical contexts that we discuss is the criminality of homosexuality in the period (as it’s implied that one of the novella’s two villainous ghosts was a gay man). Students are generally shocked to learn that the famous Irish artist and socialite Oscar Wilde was convicted of “sodomy” in May 1895 and sentenced to two years’ hard labor in prison. But while I agree that Wilde’s trial and punishment are and should be shocking, they’re not nearly as distant from us as that 1890s date would suggest. As of 1960, every state in America had anti-sodomy laws on the books, meaning gay men in every state were overtly risking the same kinds of charges that had faced Wilde. And as of the Lawrence v. Texas decision in 2003—two thousand and three—14 states still had such anti-sodomy laws, meaning that it was literally illegal to be a sexually active gay man (or, more accurately, a gay man at all, because of course that was always the motivation behind these laws, not the sexual act itself) in more than 1/4^th of the United States just 15 years ago.

Moreover, just over 30 years ago the Supreme Court both upheld the constitutionality of and openly supported such blatantly homophobic laws. In 1986’s Bowers v. Hardwick, the Court ruled in a 5-4 decision that Georgia’s anti-sodomy law (which in fact criminalized both oral and anal sex performed in private between consenting adults, although of course no heterosexual couples were ever arrested for such actions) was constitutional. Although the majority decision attempted to ground the ruling in legal precedent and constitutional theory, Chief Justice Warren Burger made the Court’s true rationale clear in his concurring opinion when he quoted 18^th century English jurist William Blackstone’s 1772 descriptions of homosexual sex as an “infamous crime against nature,” a “still deeper malignity” than rape, and “a crime not fit to be named.” In short, the Bowers decision didn’t simply uphold anti-sodomy laws; it (or at least the five Justices who sided with the majority) openly agreed with them that the sexual preference and identity of gay men in America (and by extension gay women and other LGBTQ Americans, although these laws almost always focus overtly on sodomy and thus men) was enough to make them criminals.

It was not until 2003’s Lawrence v. Texas that the Supreme Court overturned the Bowers ruling and ruled 6-3 that anti-sodomy laws were unconstitutional (as intimate consensual sexual conduct was protected by the right to substantive due process under the 14^th Amendment). In writing the majority opinion, Justice Anthony Kennedy did go further than simply highlighting constitutional or legal rights, recognizing and supporting the personal and sexual identities of the case’s gay male plaintiffs: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” But at the same time, Kennedy distinguished that private sexual conduct from a range of behaviors explicitly not protected by the decision, and among them he included not only “minors,” “prostitution,” and “persons who might be injured or coerced,” but also “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Which is to say, while Lawrence did become a stepping stone toward the Court’s recognition of same-sex marriage as a legal right in Obergefell v. Hodges (2015), I believe it would be just as possible for the Lawrence decision to be used in the exact opposite way. A good reminder that progressive Court decisions can’t and shouldn’t be taken for granted.

Special weekend post tomorrow,

Ben

PS. What do you think? Other Supreme Court decisions or contexts you’d highlight?