Monday, May 12, 2008

Lawrence v. Texas; Bowers v. Hardwick: a historical retrospect

Once in a while it’s a good idea to go back and brush up on a bit of history—today on a matter that we have probably become complacent about – so-called “sodomy laws”.

The two best known Supreme Court opinions on the matter were Bowers v. Hardwick, reaffirming the Georgia law (which applied to homosexuals and heterosexuals) in 1986 (link here), and Lawrence v. Texas (2003), which struck down Texas statute 2106 that applied to homosexuals only (Cornell link) Note: it seems from my experience that the Supreme Court's own links drop off after four years.

Much has been written about all the controversial legal concepts discussed in both decisions. Included among these are not just equal protection, but more fundamentally: standard of review (“rational basis” or “strict scrutiny”) and “fundamental right” and whether the Ninth Amendment (penumbra clause) essentially protects unenumerated individual rights as “fundamental rights.”

There has been history before this. In 1982, Baker v. Wade had struck down the Texas sodomy law (and been followed by a supplementary opinion), but the Fifth Circuit in New Orleans would override that opinion in 1985, actually saying that “regulating morality” was a “legitimate state interest”.

In fact, in both major Supreme Court decisions there were ruminations on “morality” that, in the case of Justice Burger in 1986, turned into an outright rant. Justice Scalia’s dissent in 2003 turned into a curious piece of circular logic (about how liberty interests are established by “tradition”) and then a speculation that the majority opinion would require the Court later to accept gay marriage. Really? No, I don’t believe today for one instant that the Supreme Court would strike down Virginia’s Marshall-Newman amendment.

What’s useful, at least for educational and background purposes, is to try to construct what they thought they meant by “morality” (we now call it "public morality") but wouldn’t articulate. They can’t appeal to religion in a republic that is supposed to separate church and state. What strikes me is they reflect the sense of an earlier society that did not embrace the idea of individual sovereignty, because the underlying political, social and international environment was not stable enough. Also, people needed a lot of intra-family interdependence in order to survive at all. Society, with all its glaring faults (like racism) accepted the idea that some people would “have” more than others, but that in order to “have” one needed to accept responsibility for raising a family. Doesn’t everybody want one anyway? Well, not always. Human beings do other things or an artistic, cultural and expressive nature besides procreating. They actually may have adult relationships for their own sakes, rather than for lineage. In such an intrinsically pluralistic world, there is a fear that some people, less competitive physically and “reproductively”, will “cheat” the system and undermine the emotional stability, integrity and sustainability of the family unit for others who are also somewhat marginal but who try to participate in having and raising kids or taking on other family responsibility. This sounds like the “waverer” argument of Pattullo and others. It sounds gratuitous today because we have a technology driven culture that generally encourages individualism (although we are learning that that culture can become vulnerable to asymmetry). But a half century ago this sort of thinking was taken very seriously. It bit me. It was thought to be as an important part of “morality” as ideas of fidelity and supporting the kids that you do have. It links to militaristic thinking, and ideas that young men owed service to their country (the draft) and a willingness to render themselves fungible and risk their own lives, before they had full rights as citizens. Libertarianism, which started growing in the 1970s, aimed at this type of thinking at a conceptual level, where as typically leftist liberalism was more concerned with exploitation of classes of people, among whom homosexuals could be such a suspect class.

Sodomy laws were a way of encapsulating this type of “everyone serves” thinking, perhaps concerned with sharing risks that others take for one's behalf, but evading the verbal arguments that tend to run into contradictions. No one seemed to know how to even question them until the 1960s (as in 1967 when Britain’s law fell). Conservative writer George Gilder (when writing humorously about “the perils of androgyny”) would term such expectations as “non rational” rather than “irrational.” There seems to be a difference.

One particularly striking contradiction occurs with the way “people like me” were to be treated. We were taunted and teased as youths about our lack of masculine competitive ability and portrayed as cheaters or malingerers (in a “draft conscious” world), as if we were being told that we weren’t suitable future parents or ancestors and therefore “deserved” subordinate, second-class or perhaps even slave status to others who were. So we “hit back” by stepping on the toes of other men, trying to be straight but not too “competitive” themselves, by putting ourselves on public pedestals as judges of who the “real men” were. Even the psychiatrists at NIH during my 1962 stay made a lot of this, but they never could complete the contradiction that they were posing, and I wasn’t mature enough at 19 to force them to. The “straight world” discovered that it was more facile to reverse itself and try to encourage people like me to somehow prove we could become male role models in our own way than let us continue holding up others for everyone to be compared to. Yet, as I have noted, that still gives me still another contradiction. I never was a competitive role model. The only way to become one is to succeed at something.

Another contradiction, apparent to modernism, is the idea that these old fashioned ideas of collective morality sound like an admission of personal inadequacy or inability to take responsibility for one's own reproductive choices. That notion, quite frankly, was hidden away by religious thinking, that some areas of life are beyond the control of the "works" of any individual and should be predicated on some deeper obligation to the biological continuation of human life for its own sake.

Almost no court opinions mentioned AIDS or HIV in the 1980s in trying to justify their “moral arguments,” but in 1983 a Texas representative (Bill Ceverha) from Amarillo introduced a draconian extension of the sodomy law (2138) that would have banned gays from most occupations involving “public trust” and especially food handling or child care. In my own mind, that is think that is similar to today’s “don’t ask don’t tell”. And remember, the UCMJ Article 125 (the military sodomy law) has not been overturned. The prospect of 2138 (supported by the notorious "Dallas Doctors Against AIDS") was quite terrifying to the gay community in Texas in 1983 (I remember xeroxing it at the old MCC on Reagan St. in Dallas) but, thanks to heavy lobbying by the Dallas Gay Alliance, it never got out of legislative committee.

The link on 2138 is here (look at appendices 6 and 8).

Update: May 17

I have just reviewed William Eskridge 's new book "Dishonorable Passions: Sodomy Laws in America 1861-2003", from Viking, here.

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