“Certain Intimate Conduct”: Classics, Constructionism, and the Courts
It is not often that classicists find themselves in the middle of public policy debates, at least not in this day and age; yet this is precisely what has happened in recent years in the ongoing public battle over gay rights. To some extent, this has been an outgrowth of traditional attempts to re-interpret and appropriate the Greek and Roman past: to argue that these societies, forming the largest non-Judaeo-Christian component of our intellectual heritage, provide a model of plurality and tolerance; or a non-religious moral precedent for the condemnation of homosexuality; or a stern warning about the dangers of excessive personal liberty. More surprising, perhaps, is the extent to which theorizing about the past--including views on sexuality as a social construct, developed in large part based on classical models--has influenced the courts, in particular in the case of the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which declared state sodomy laws unconstitutional. The most abstract, theoretical, and apparently purely academic aspects of our work have, in fact, had a direct impact on the lives of millions of Americans.
This paper explores the background to this surprising turn of events. I begin with an examination of the well-known intervention of classical scholarship in Romer v. Evans, the case that began in 1993 as a challenge to the constitutionality of Colorado’s anti-gay Amendment 2. The next section of the paper backtracks to the U.S. Supreme Court’s 1986 Bowers v. Hardwick decision, in which a 5-4 majority upheld the constitutionality of Georgia’s sodomy law, basing its decision in part on what it viewed as the “ancient roots” of proscriptions against homosexuality. Finally, I examine the Court’s stunningly broad reversal of Bowers in Lawrence, in which the majority expresses a radically different view of human sexuality, including an acceptance of social constructionist theory.
PART I: Romer v. Evans
The first serious intervention of classics into the realm of laws concerning sexuality came in 1993, in the case of Evans v. Romer (known as Romer v. Evans1 on appeal). In 1992, the voters of Colorado passed a ballot initiative known as Amendment 2, which stated that neither “the State of Colorado,” nor any of its individual municipalities, could “adopt or enforce any statute, regulation, ordinance or policy” that prohibited discrimination on the grounds of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”2 Very inclusive language for an amendment expressly designed to exclude large segments of the population from their full civil rights: stigmatizing not merely conduct (as in the newly inaugurated “don’t ask, don’t tell” era) but also orientation. Note also the amendment’s prohibition not only against claims of discrimination, but also against “quota preferences” and “protected status,” thereby scoring points with voters wary of affirmative action and able to be persuaded that freedom from discrimination is actually a special privilege--the same rhetoric that makes unions or racial minorities “special interests” while employers and whites are not.
Challenges to the constitutionality of the amendment were immediately launched in a lawsuit filed by plaintiffs including various municipalities whose anti-discrimination ordinances would have been nullified. The suit claimed that the “‘moral judgment’ expressed by Amendment 2 is nothing more than irrational hostility toward lesbians, gay men, and bisexuals. Amendment 2 does not serve any legitimate purpose.” That is, they challenged the constitutionality of the amendment to withstand the rational basis test, under which a government entity passing laws that will deliberately disadvantage a particular group must demonstrate some legitimate government purpose in so doing.
One of the arguments used by the plaintiffs--and in fact one of the ones deemed least likely to succeed--was that Amendment 2 should be thrown out because it was in violation of the establishment of religion clause of the First Amendment. That is, prejudice against gays and lesbians is derived from Christianity (and ultimately from Judaism as well), and is therefore not a legitimate reason for discriminatory legislation. Enter Plato--in this case, in the person of his interpreters, beginning with the Oxford moral philosopher John Finnis, who was brought in for the defense to argue that disdain for homosexuality has, in fact, roots in other Western, non-Christian traditions; and, further, that such disdain forms part of “natural law,” providing a wholly legitimate moral ground for disliking, and therefore discouraging, homosexual behavior.3 If the Greeks--the most identifiable non-Judeo-Christian part of our cultural tradition--despised homosexuality, then this part, at least, of the case will fail; and the natural law arguments will go a long way toward providing something to pass the “rational basis” test, and might help meet the standard of strict scrutiny which was in fact applied in this case.
Finnis, then, has the task of showing that the Greeks disapproved of homosexuality. Questions of defining the category don’t come up, of course--natural law, along with common sense and most pre-1975 scholarship, sees categories of sexuality as essentially invariant (or invariably essential). Now, the casual observer might well point out that if the Greeks disapproved of homosexuality, they certainly had a funny way of showing it. Finnis gets around this in two ways: first, by narrowing the scope of his inquiry to include only philosophical texts, in particular those by Plato and Aristotle; second, by carefully distinguishing between same-sex affection, or inclination, or desire, on the one hand; and its actual physical fulfillment on the other. By focusing on acts rather than inclinations, any questions of the commensurability of ancient and modern sexual categories are taken out of play; and more importantly, it is possible to explain away the large amount of homoerotic material in the philosophical texts as pertaining only to desire, not its consummation.
This is a line of reasoning few, if any, classicists would pursue today, and in fact Finnis’ status as outsider came to play a large role in the controversy, particularly in regard to his ability to read Greek. He is a Catholic natural law philosopher whose arguments seem to imply, in Thomistic fashion, that Plato and Aristotle to some extent presaged Christian morality--and indeed, in reading his interpretation of the philosophers’ views on marriage and sexuality, it seems as if he’s confounded Aristotle and John Milton. “Marriage, with its double blessing--procreation and friendship--is a real common good. Moreover, it is a common good which can be both actualized and experienced in the orgasmic union of the reproductive organs of a man and a woman united in commitment to that good. Conjugal sexual activity, and--as Plato and Aristotle, and Plutarch and Kant all argue--only conjugal activity is free from the shamefulness of instrumentalization which is found in masturbating and in being masturbated or sodomized.”4 In particular, he believes that only non-contracepted sex by a married couple may be free of such instrumentalization (although he does make an exception for those married couples who are infertile)--all else is sodomy and masturbation, and we’re fooling ourselves if we think otherwise.
His arguments concerning Plato and Aristotle sound curiously old-fashioned, insensitive to context, and anachronistic. While citing certain passages in the Laws that actually do seem to condemn same-sex activity (although even here context makes it far from certain how to read Plato’s intentions), he vastly over-generalizes: “To know or tell Plato’s views on the morality, and the immorality, of all such nonmarital conduct as homosexual sex acts, one need go no further than these unmistakably clear passages in the Laws, texts with which every other text of Plato can readily be seen to be consistent.”5 Now, I don’t recall much about marriage in the Symposium, and apparently Finnis has never read the Republic on the communal family arrangements to be imposed on the Guardian class. Yet elsewhere he seems to realize that this is over-statement, referring to the “mature Plato of the Laws” (emphasis mine) as the source to be taken as authoritative, in contrast, I suppose, to the “immature” Plato of the erotic dialogues and the Republic. Similarly, in citing a passage from Book 7 of the Nichomachean Ethics on the perverse bad habits of certain types of people, he mistakes Aristotle’s explanation of those exhibiting a bizarre fondness for sexual passivity for a general condemnation of homosexuality in general. In fact, part of his problem is his unwillingness to distinguish between active and passive roles--partly, we must assume, for ideological reasons, but partly because he is relying on an older scholarly tradition that is unsophisticated in dealing with sexual categories, and tends to over-sentimentalize the Greeks. Thus he expects a greater sense of mutuality than we have any right to expect in a highly competitive, zero-sum society--one whose attitudes of aggression and domination can pervade the sexual sphere, as well.6
Finnis proved, in effect, a weak advocate, from a classicist’s perspective, one who should be easily trounced by any competent philologist--especially one as learned and formidable as his actual opponent, Martha Nussbaum. And in fact she did trounce him, at least so far as their published arguments go. Her affidavit, as reconstructed in her Virginia Law Review article, effectively undercuts almost all of Finnis’ specific claims concerning Plato, Aristotle, and other philosophers. In particular, she deals very effectively with those situations in which Plato does, in fact, demonstrate some aversion to same-sex sexual activity, pointing out that Plato was in general suspicious of all bodily appetites (not just of sex, much less homosexuality) and that his finding bodily appetites and their fulfillment inferior to spiritual pleasures is not at all the same as his saying that such appetites and pleasure are “shameful, depraved, and depraving,” as Finnis claims. In addition, she distinguishes in key passages--particularly those in the Nichomachean Ethics and the Gorgias--between the Greeks’ general approbation of, or sympathy toward, active, penetrative males and their fear of and contempt for the figure of the habitually passive kinaidos.
Better still is her treatment of the implications of scholarship, and the question of why reading ancient texts should have any relevance for the modern legal system. Her Virginia Law Review article begins with a story of the conservative jurist and legal theorist Richard Posner reading Plato’s Symposium and finding himself “surprised to discover that it was a defense, and as one can imagine a highly interesting and articulate one, of homosexual love. It had never occurred to me that the greatest figure in the history of philosophy, or for that matter any other respectable figure in the history of thought, had attempted such a thing.”7 Posner, in his book Sex and Reason, attempted to remedy the ignorance about homosexuality he found throughout the legal profession, claiming that the Bowers v. Hardwick decision evidenced “irrational fear and loathing” of homosexuality, and that judges, in their ignorance of sexual issues, are “likely...to vote their prejudices.”8 Nussbaum whole-heartedly agrees with Posner’s educational project, and the conclusion to her affidavit makes a plea for reason and greater understanding of sexuality.
Obviously, Nussbaum will have the Greeks teach us a rather different lesson than the one Finnis has in mind. Rather than showing us a set of universal principles that take the form of natural law, and are instantiated with varying degrees of perfection in various legal systems, they will provide us with a contrasting world-view--one in which sexuality is less central, more equated with other appetites. Examining the Greeks will (and here she quotes Foucault) “free our thought from what it silently thinks, and so enable it to think differently.”9 Attacking Finnis on his own ground, she invokes the Catholic branch of the natural law tradition against him: if it was possible for the Greeks, a culture we in general admire as one of our moral and intellectual forebears, “to hold that same-sex relationships are not only not per se shameful, but potentially of high spiritual and social value,” then it cannot simply be claimed that all rational persons will despise same-sex relationships. It will be necessary, if one follows the Catholic natural law tradition, “which claims to derive its conclusions from reason, not from authority,” to “be sure that we have distinguished between reasoned argument and prejudice.”10 In fact, the arguments of Finnis and his fellow expert witness Robert George cannot rule out the social goods derived from non-procreative relationships--they have only “bare assertion” on their side, in contrast to the reasoned arguments of philosophers, classicists, and jurists, liberal and conservative alike.
Obviously, reason must win out here--but as I’m sure you’re aware, things turned out rather differently. Whatever the decision of the Supreme Court--and we’ll talk more about that in a moment--in the court of public opinion we came out looking bad (and by “we” I mean classicists, as well as those of us who would identify as left, libertarian, or pro-gay). If Finnis had an unenviable task--that of showing that the Greeks disapproved of same-sex activity--Nussbaum took on, for reasons that are easy to sympathize with, a task nearly equally difficult: that of explaining away virtually every negative reference to same-sex activity in the Greek world. It’s an odd variation on the old sophistic theme--trying to make the Better case appear the Airtight; and in fact wound up making the Better case appear the Worse, at least in some circles. I assume that everyone is familiar with at least the rudiments of the tolmêma controversy, in which Nussbaum cited an earlier edition of Liddell and Scott in order to avoid having the definition “daring or shameless act” appear as one of the word’s possible meanings when considering how best to render a passage in the Laws.
Finnis, as I’m sure most of you know, seized on this inconsistency and ran with it. Rather than being a minor oversight, or even a deliberate but small trick to present her case in the best possible light, he views Nussbaum’s testimony as “a wholesale abuse of her scholarly authority and attainments.” His article in Academic Questions (a right-leaning journal published by the National Association of Scholars) begins with a condemnation of historical inaccuracies he alleges existed in testimony before the Court in various abortion cases, and goes on to see Nussbaum as a further practitioner of “law office history,” a sort of scholarship that is an “attempt to get the American people to constitute themselves around conceptions of their own past, and the past of their civilization, that are profoundly untrue.”11
Nussbaum responded by arguing against Finnis on individual points, but also by attacking his credentials as a competent reader of Greek and Latin, and setting forth at length the criteria by which the qualifications of expert witnesses on classical matters should be judged. (The ideal expert witness in her view looks surprisingly like...Martha Nussbaum.) Yet despite having largely convincing arguments, on the whole our side came out looking rather bad--in particular, Kenneth Dover’s public modification of his views to agree with Nussbaum’s--a touching little pas de deux at the end of her Virginia Law Review article12--looks too much like the coercive manufacture of scholarly consensus.
So what went wrong here? Personality, hybris, the stuff of Greek tragedy--explanations put forward by a variety of sources, both public and private. But part of it has to do with the very practice of historiography and scholarship. Translation certainly is an issue, but hardly the most important one. In his thoughtful analysis of the case, Daniel Mendelsohn suggests that there is perhaps a problem in the very nature of the competing discourses involved--those of the scholar and the lawyer. Perhaps, he muses, “the gap that separates law and scholarship may well be as unbridgeable as the gap that distinguishes tragedy from comedy.”13 After all, courtroom testimony is designed to provide some specific answer, not to raise further interesting questions for study--“the narrow requirements of legal discourse as it actually proceeds may ultimately be incompatible with the expansive nature of serious humanistic inquiry.”14 At the time of reading Mendelsohn’s article, I was very much in sympathy with this particular argument, but am less so now, for reasons explained below. But I found myself with the reaction many of you no doubt had as well: what are classics professors doing testifying about such things? A noble effort--not, mind you, a noble lie--but one that the courts will ultimately ignore. Although the Solicitor General of Colorado was quoted as saying “This is not just an academic issue--our courts make decisions based on this material,”15 it seemed unlikely that there would be any real effect of anyone’s testimony on Plato or the ancient world. An interesting sideshow, one that the scholarly community was dragged into by the plaintiffs’ long-shot establishment of religion argument. It’s all very well and good to speak of educating the court, but how many judges are as inquisitive as Richard Posner? And after all, the court decisions--including that of the U.S. Supreme Court--made no direct reference to this material, and decided the issue on grounds of Due Process, not establishment of religion.
As a scholar, of course, I had my own bones to pick with Nussbaum and Dover. Interpretations of individual passages will vary, to be sure--in particular, I read the tone of some of the speeches in the Symposium quite differently from the way they do--but I was more concerned with certain aspects of their strategy. I found it first of all ironic that Plato could be brought in as a champion of liberties--religious and social--that accord ill with his large parts of his philosophical corpus; and that Plato’s voice should be used to champion democratic decision-making. Also ironic is the notion that Greek ideas about sexuality should be seen as a liberating force, a counterweight to our own prejudices. Yes, same-sex behavior and affection were given greater leeway in Greece than they traditionally have been in the Judaeo-Christian world--but only if they conformed to certain rigid notions of masculinity. And if we are to use the Greeks as models of enlightenment concerning homosexuality, what of their misogyny? Can we testify in court about their philosophy, their loves, their ideas of friendship and the common good without mentioning the seclusion and denigration of women that were a contributing--and perhaps a necessary--precondition for the glories of their masculinist culture?
Wouldn’t it be better, I wondered, to be a bit more honest about the Greeks’ faults and their differences from us? For after all, both Finnis and Nussbaum revere the Greeks, as founders of some of our most cherished intellectual traditions and, for Finnis, as the earliest Western example of natural law; while, for Nussbaum, as a diachronic example of cultural diversity, giving us an autres temps, autres moeurs lesson in tolerance. But isn’t this a bit too obvious a projection of our own liberalism and cultural relativism? And isn’t our sometime attitude of exuberance and delight in the Greeks’ supposedly more “open” sexual attitudes too obvious a corrective for the prudishness of previous generations of scholars? But since it is usually cultural conservatives who will bring our Greek heritage into play during public debates--think of the latest crop of neo-Straussians in government--isn’t our goal to neutralize them? And in a perfect world, wouldn’t it be better--instead of arguing case-by-case about whether Greek philosophers approved of same-sex attraction, kissing, or intercourse--wouldn’t it be better to argue that the Greeks’ sexual system was so different from our own as to be useless as a comparandum for all practical purposes? If the ancient world did not recognize the concept of the homosexual, or recognize homosexuality as a category that classified individuals in a meaningful way, then how can we speak of its attitude toward these phenomena?
This is an argument which Nussbaum takes up near the conclusion of her article. While conceding that the idea “says important things about the two cultures,” she alludes to two speeches in the Symposium as proof that the Greeks did, in fact, have sexual categories similar to our own. Further, she points out that Finnis and George’s arguments were based on acts rather than dispositions, and so anti-essentializing arguments would have little countervailing force. Nussbaum, then, might be viewed as a “loose constructionist”--that is, one who believes that sexual identity is socially constructed, but also believes that--for the Greek world at least--our basic categories of straight and gay have some justification, even though they may be defined differently in practice (and even though other categories may exist as well). My own view is closer to that of the “strict constructionists,” who hold that there is little evidence for a trans-historical gay or straight identity, at least not for one that encompasses fifth century Athens and twenty-first century America. As for the acts vs. dispositions question, this is probably due to a certain strategic difficulty on Finnis’ part--the only way around the Greeks’ obvious approval of certain same-sex affects is to divide mind and body, affect and practice, and demonize the latter. But in fact the language of Amendment 2 specifically targets primarily individuals for their status or orientation (as well as for their conduct, although we must imagine that this is secondary, given the purpose of the legislation). And as we shall see with the Bowers and Lawrence cases, regulation of conduct and of status go hand in hand.
But suppose Nussbaum did want to make the strict constructionist, anti-essentialist argument outlined above, could she have done so? After all, this would involve explaining the history of scholarship--the fact that scholars up until about 1980 accepted certain categories as unproblematic and universal, but now believed quite the opposite--and would, in fact, be subject to easy “refutation,” if by refutation we mean finding eminent scholars--quite likely, even a majority of the reputable sources on the subject--to affirm Essentialism. Explaining to a court a lot of details about Greek sexual practices and attitudes, talking about Foucault, trying to get it to accept a proposition that is on the face of it seriously counter-intuitive, certainly seems an ill-advised and quixotic project. Add to this the fact that constructionism is sometimes viewed with disdain or embarrassment within the gay community, in part because it can be seen as undermining a hard-won identity and giving ammunition to cultural conservatives who view homosexuality as a conscious choice. Sadly, my friends and I concluded in 1996, the constructionist case--no matter its value as a model for understanding the ancient world--would not stand up in court.
II. Bowers v. Hardwick
But we were quite wrong about this, as I realized when I read the Supreme Court’s decision on Lawrence v. Texas in June, 2003. But first, a recap of the notorious earlier case, Bowers v. Hardwick, that was overturned by Lawrence (after having been seriously damaged by Romer v. Evans). The Bowers case started in 1982, when Michael Hardwick was charged with violating a Georgia statute criminalizing sodomy--the text of the act reading as follows:
“(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another...
“(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years.”16
Hardwick was arrested in the bedroom of his own home, when a roommate directed the police (who were looking for him on an unrelated matter) to open his closed bedroom door. Although the sodomy charges were soon dropped, he brought suit, asserting that, as a practicing homosexual, the statute, “as administered by the defendants, placed him in imminent danger of arrest, and that the statute for several reasons violates the Federal Constitution.”17 Since the statute was gender-neutral, the original action also included as plaintiffs a straight couple, John and Mary Doe, who claimed that they wished to engage in the sexual activity forbidden by the statute, but had been “chilled and deterred” from doing so by the statute itself and by Hardwick’s arrest. The trial court, however, found that they had not sustained, nor were likely to sustain, any direct injury from the enforcement of the statue, and therefore lacked the proper standing to sue. This had significant consequences, since it allowed the court to focus on same-sex activities only, and to “express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.”18
The decision--one of the most notorious and difficult of the past generation--was handed down in 1986, one of the last of the Burger court. Joining the Chief Justice in a 5-4 opinion were Powell, Rehnquist, O’Connor, and Byron White, who wrote for the majority. Pointing out at the beginning that the Court makes no judgment on whether or not sodomy laws are “wise or desirable,” White frames the issue as one concerning the “judgment(s) about the limits of the Court’s role in carrying out its constitutional mandate.”19 The most serious of Hardwick’s claims was that any such law should be invalidated as unnecessarily infringing upon the right of privacy implicit in the Due Process clauses of the 5th and 14th Amendments.20 The right of privacy had been rapidly expanding with a series of decisions relating to marriage and sex: Griswold v. Connecticut, and Eisenstadt v. Baird, which struck down laws banning the sale of contraceptives; Loving v. Virginia, which invalidated anti-miscegenation laws; and of course the 1973 abortion decision in Roe v. Wade. White drew a line in the sand with Hardwick: “No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated...Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.”21
The question as he frames it is this: what are the nature of the rights that are said to qualify for heightened judicial protection? Defining “fundamental liberties,” White quotes a pair of cases to the effect that such rights are “implicit in the concept of ordered liberty...(such that) neither liberty nor justice would exist if [they] were sacrificed,” and that these liberties are those that are “deeply rooted in this Nation’s history and tradition.” He continues: “It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots....to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”22
Adding to this particular disdain for “homosexual sodomy,” White launches a manifesto against judicial activism: “Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution...There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.”23
Finally, the Court rejects the possibility of overturning the law under the easier-to-pass rational basis test: the fact that there is a “presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable”24 is sufficient; the law, White points out, frequently is based on notions of morality.
Chief Justice Warren Burger weighed in with a concurrence of particular significance for us here, emphasizing the “ancient roots” of the proscriptions against sodomy. “Condemnation of those practices is firmly rooted in Judaeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law...To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”25
Here is where historians come in, as well as psychologists. First, the Court is taking the “ancient roots” quite seriously, going back as far as late antiquity--the citations to sodomy as capital crime under Roman law are to the law codes of Theodosius and Justinian, and there are subsequent citations to the law codes enacted under Henry VIII. Further, there are references to the sodomy laws prevailing in the original thirteen colonies at the time of Independence, so we see that the historicist arguments used ten years later in Romer v. Evans were already present in the debate over sodomy laws. Clarifying whether or not all ancient societies had similar judgments would, in fact, be relevant to this Court.
Next, the issue of religion is raised in the dissent, written by Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens. “The assertion that ‘traditional Judeo-Christian values proscribe’ the conduct involved...cannot provide an adequate justification for the law. that certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry...thus, far from buttressing his case, petitioner’s invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy’s heretical status during the Middle Ages undermines his suggestion that the law represents a legitimate use of secular coercive power....The theological nature of the origin of Anglo-American antisodomy statutes is patent.”26 Thus we see the origin of the defense strategy in Romer v. Evans, in invoking a natural law tradition to show that there is, in fact, a rational basis outside of Judaeo-Christian tradition for the condemnation of same-sex activity. The First Amendment argument failed there, but it was not a foregone conclusion that it would: if four justices saw the roots of the law ten years earlier, it was possible that a majority would in 1996 (although, given the Court’s rightward shift during that time, somewhat unlikely).
Other issues worthy of note here: First, Blackmun outlines the limits of deference to tradition, which will prove to be a key factor in Lawrence--“Like Justice Holmes, I believe that it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”27 Second, he refers to the Court’s “almost obsessive focus on homosexual activity”--after all, Burger’s brief concurrence added no new doctrine or interesting dicta, and was merely an attack on sodomy per se--and in particular the ways in which this obsessive view of the Court misstates the apparent intent of the Georgia law, which is gender neutral. Third, and perhaps most interesting from a classicist’s perspective, is the analysis of whether or not homosexuality is a condition. Recognizing changing attitudes, Blackmun points out that homosexuality is no longer viewed as a disease by mental health professionals, but is also not a matter of deliberate choice. “Homosexual orientation may well form part of the very fiber of an individual’s personality....an individual’s ability to make constitutionally protected decisions concerning sexual relations...is rendered empty indeed if he or she is given no real choice but a life without any physical intimacy.”28 The question adumbrated here is to what extent gays can be protected under the Equal Protection Clause without having to face the additional burden of proving that they are a suspect class--that is, one that has experienced a history of past purposeful discrimination or unequal treatment, and which is defined by a characteristic that is "obvious, immutable or distinguishing," and whether it has met with systematic exclusion from redress via the normal political process. That is, the Court--or rather, a substantial minority of it--accepts that homosexual identity is a category that exists and is immutable for given individuals, and that these individuals are unduly burdened by sodomy laws.
Hardwick was, as I’m sure you’re aware, one of the most controversial decisions of the Burger Court. It was reported soon afterward that Lewis Powell, the swing vote on the case, had changed his vote after intense lobbying from the Chief Justice, and within a few years Powell himself made it known that he regretted this vote more than any other. Add to this the pathetic detail, revealed in his 1994 biography, that Powell was operating in near-total ignorance of homosexuality, claiming that he had never to his knowledge met a homosexual--despite the fact that one of his clerks at the time was gay, but closeted. The Court itself seemed rather embarrassed by the Hardwick decision--as some scholars have pointed out, it was not always relied upon for precedent, and a mere 10 years later it was partly overturned by the verdict in Romer.
Not entirely overturned, of course--that didn’t happen until Lawrence--but weakened as regards its key implications. The Court’s finding in Romer v. Evans was based on the Equal Protection Clause of the Fourteenth Amendment. Writing for the majority, Justice Anthony Kennedy quotes with approval the 1973 decision Department of Agriculture v. Moreno: “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare...desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”29 And the Court does in fact find that this was the intent of Amendment 2--rejecting the notion that the Amendment merely “deprives homosexuals of special rights...to the contrary, it imposes a special disability upon those persons alone. (They) are forbidden the safeguards that others enjoy or may seek without constraint.”30 Since gays and lesbians do not constitute a suspect class, heightened scrutiny is not warranted; instead, the State must pass the simpler rational basis test, of the law bearing “a rational relation to some legitimate end.” Indeed, the Court finds this sort of deliberate, broad-based singling out of a group for hardship rare and unjustifiable.
Yet Antonin Scalia, in his dissent (joined of course by Clarence Thomas), finds a rationale. Opening with the salvo “The Court has mistaken a Kulturkampf for a fit of spite,” he defends the amendment as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” And he continues with a point whose logic is hard to argue with:
“The case most relevant to the issue before us today is not even mentioned in the Court’s opinion: In Bowers v. Hardwick…we held that the Constitution does not prohibit...making homosexual conduct a crime. That holding is unassailable, except by those who think that the Constitution changes to suit current fashions...If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.”31
Kulturkampf indeed. Not entirely coincidentally, at the time the Court was reviewing Evans, Congress was busily engaged in crafting the Defense of Marriage Act in response to the possibility that Hawaii would soon recognize same-sex marriages. The Act--passed overwhelmingly by both Houses, and signed into law by President Clinton--defined marriage as a union between opposite-sex couples only, and further granted states an exemption from the ‘full faith and credit’ provision of the Constitution so that marriages from one state need not be recognized in another. Here, too, classics played a role, although in the more usual way: the field was mined for specious precedent and example rather than being called upon as a source of expert testimony. In addition to comments by former football player and U.S. Representative Steve Largent about homosexuality causing the downfall of Rome, we were treated to the following by former Klansman and amateur classics buff Senator Robert Byrd of West Virginia: “Indeed, as history teaches us too often in the past, when cultures waxed casual about the uniqueness and sanctity of the marriage commitment between men and women, those cultures have been shown to be in decline. This was particularly true in the ancient world in Greece and, more particularly, in Rome.” In this speech in the Congressional Record--you really can put anything in there, it seems--Byrd goes on to cite the examples of Achilles and Patroclus, Catiline, and Julius Caesar (queen of Bithynia), and concludes: “While same-sex relations were not unknown, therefore, to the ancients, same-sex marriages were a different matter. But they did sometimes involve utilization of the forms and the customs of heterosexual marriage. For example, the Emperor Nero...took the marriage vows with a young man named Sporus, in a very public ceremony.” After quoting Juvenal, Byrd turns to Biblical citations sanctioning heterosexual marriage, and after some discussion of the costs of extending federal benefits to same-sex spouses, concludes with a re-telling of the Biblical story of Belshazzar and Daniel. “I say to my colleagues, let us take our stand...Let us defend the oldest institution, the institution of marriage between male and female, as set forth in the Holy Bible. Else we, too, will be weighed in the balance and found wanting.” 32 So much for the secular origins of the opposition to gay rights.
III. Lawrence v. Texas
As of 1996, then, an apparent impasse: the best scholarship about the ancient world was rhetorically too challenging to present to the courts, where it might do some good; the courts were stuck between somewhat conflicting precedents, whereby gay status was protectable under the law; but most of the better types of physical expression of that status were still illegal in several states. And, as always, every passing politician with a Penguin or a Loeb could teach us all the lessons of history.
Imagine my surprise, then, on the evening of June 26, 2003, when I read the decision handed down in Lawrence v. Texas. This case, challenging Texas’ same-sex-only sodomy law, went far beyond expectations in not only overturning the statute in question, but in reversing Hardwick--and in using as the basis for its decisions the evolving social mores of our own and other societies, as well as some surprising arguments concerning the construction of sexuality. The facts in this case were in some ways depressingly similar to those in Hardwick, but with certain key differences that both lent a sense of urgency to the matter and clarified the issues involved. The petitioners--John Lawrence and Tyron Garner--were engaged in anal sex in Lawrence’s apartment one evening in 1998. The Houston police, responding to a call regarding a man with a weapon, broke into the apartment and found Lawrence and Garner in flagrante delicto. The police, apparently not realizing that delicto is normally a dead metaphor, arrested the pair, who spent a day in jail before being released on bond. They sought, at the level of the Harris County criminal court, to have the charges dismissed on constitutional grounds; when this failed, they pleaded nolo contendere to the charges, were fined $200 plus $141 in court costs, and pursued the case to the Court of Appeals; when this was unfruitful, to the Supreme Court. This was, in many respects, a better test case than Hardwick: first of all, the petitioners suffered actual harm--the conviction could debar them from or restrict their entry into a variety of professions in Texas, including such mundane metiers as school bus driver and athletic trainer. Further, after such a conviction they would have to register as sex offenders if they moved to certain states. The arguments that made Hardwick seem less compelling--no real prosecution; no real harm--clearly did not apply here. Further, the fact that the Texas statute applies only to same-sex sodomy allows the petitioners to raise an Equal Protection claim, since they are in fact members of a class being singled out, as they maintain, for its unpopularity, and therefore the precedent established by Romer v. Evans is much more on point than it would be for a gender-neutral law. And, oddly enough, the fact that the petitioners were engaged in anal rather than oral sex also made it a better test case, since some recent Constitutional scholarship had argued that oral sex was not generally prohibited by pre-twentieth century sodomy laws, and was not therefore the object of a proscription that had “ancient roots.” This particular dodge would not work, and the Court would have to face squarely the question of whether such ancient proscriptions were to be overthrown.
The petitioners sought to have the case examined under both the Due Process and Equal Protection Clauses, and to have Bowers invalidated. The majority opinion, again written by Kennedy, concludes that the Due Process Clause is the relevant section of the Constitution, and that Bowers needs reconsideration. As for the Equal Protection Clause, it is considered not entirely sufficient for the Court’s ends, although it is invoked in Sandra Day O’Connor’s concurrence.
The doctrine here is substantive due process, and the opinion sketches out the development of certain privacy and spatial rights, including the Griswold, Eisenstadt, and Roe decisions. Then comes the key paragraph that dismisses the central claim of the Bowers decision: that the right to engage in homosexual sodomy is not a fundamental one:
“That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
“This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”33
A new era has dawned: instead of focusing obsessively on “homosexual sodomy,” the court speaks of dignity and choice and bonding; the discourse has gone from J. Edgar Hoover to Oprah in less than two decades. Yet even when the decision has been made to see private, in-the-home sexual conduct as a liberty interest, protected by the doctrine of substantive Due Process, various loose ends remain--two in particular. First, how to deal with the objection that “proscriptions against this conduct have ancient roots”; second, how to overcome the principle of stare decisis, in which a Court is loath to overturn the decisions of its predecessors?
In fact, the Court adopts a version of the social construction theory of sexuality to explain why sodomy laws used to be gender neutral, and to try to get at the original intent of the framers of those laws. First, Kennedy notes that “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.”34 That is to say, beginning with the Reformation Parliament of 1533 and continuing through the 19th Century, sodomy laws were thought to prohibit certain types of acts between men and women, or between men and men. Why the change? “The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century,” followed by a quote from Jonathan Katz’ The Invention of Heterosexuality: “the modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions.” Quoting again from Kennedy: “Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.”35
Continuing further in his history of sodomy laws, Kennedy suggests that “far from possessing ‘ancient roots,’ American laws targeting same-sex couples did not develop until the last third of the 20th century...it was not until the 1970’s that any State singled out same-sex relations for criminal prosecution....In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.”36
Several things are worth noting here. First, the rhetoric of possibility and uncertainty: the Court wants a way to get around the earlier proscriptions of sodomy, a way to deflect their relevance for this particular case. The fact that the situation is not so simple as claimed, that many scholars now argue that there were no recognizable homosexuals before 1892, is a window of opportunity. Second, of course, is the whole irony of ancient theories concerning sexuality triumphing in their most radical form--while the sources cited aren’t classical, they clearly depend on Foucault’s History of Sexuality and its problematization of sexual categories (and, to a lesser extent, on the work of followers of Foucault such as David Halperin and Jack Winkler). The strict constructionist view of sexuality is brought in as a way of silencing the strict constructionist, original intent approach to the interpretation of law. (Not that this entirely pre-empts Scalia, as will be discussed below.) Third, the construction of the gay subject comes at precisely the right historical moment for the Court’s purposes (the straight subject is constructed, too, of course, but heterosexuality is, as always, viewed as unproblematic). That is, for the Court’s reasoning to work, categories of homosexuality and heterosexuality cannot exist during the formative period for sodomy laws--up until the end of the nineteenth century. And yet that category must exist now, since it is being subject to attempts at discrimination, and is an identity that marks out a class of citizens deserving of equal protection under the laws. Ironically, one of the reasons I mentioned earlier for resistance to constructionist theories of sexuality--that, whatever their truth value, they might lead to discrimination on the grounds that a constructed sexual identity is infinitely mutable, and a conscious choice--seems not to apply here at all. In what must be seen as the most important decision ever for gay rights in the United States, constructionism saved the day.
Of course, our sexualities, constructed as they are, are real--just as the sexual categories of the nineteenth century, or of fifth century Athens, were real to those who inhabited them. But now we’ve seen them reified by the Court--the latest step in a long process of the construction of the modern subject. The Court’s own analysis mentions the evolution of sodomy laws from being directed at sexual predators, on the one hand, and at those who shirked their reproductive duties, on the other--and we can see here the well-known evolution of sexual categories, the move from the equation of same-sex activity with pederasty and infertility to making it a medical and legal condition--the mobilization of the juridico-medical regime that Foucault spoke of. Although in this case, at least, it’s hard not to be optimistic about the application of power: for, while the Court’s will to knowledge classifies us, it also lumps us all together under the category “citizen,” and in its affirmation of the rights of privacy, especially within the home, creates the very opposite of a panopticon.
Not that the Court’s logic concerning the construction of sexuality is unassailable. Suppose that the Framers of the Constitution, and the legislators of the various states as they were admitted to the Union, had believed in homosexuality as a category and deliberately disadvantaged homosexual status and behavior with their legislation. The Court would then have to take those legal and moral strictures more seriously; but at the same time it feels free to override the express will of the current majority of actually existing citizens in such cases as Romer v. Evans, and to do so more freely because they lack the aura of tradition. That is, the Court’s particular line of logic may be seen as a sop to foundationalism, a way of making a rather radical departure from precedent seem less radical.
Now, it’s easy to make fun of relying too much on original intent, especially the original intent of the framers of sodomy laws--so that’s what I’ll do. Just a brief discursus on my favorite sodomy law, that in effect in Louisiana in the 1980’s, which I dug up prior to the APA meeting in New Orleans some years back: “A. A crime against nature is: 1) The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal...”37 Note, first of all, that there is no definition given, except that it involves the genitals of at least one of the actors. Second, since there exists a category of “unnatural carnal copulation”--although we don’t know quite what that is--there is obviously a category of “natural” carnal copulation between humans of the same sex; and of opposite sexes; and of humans with animals. If this is in fact the intent of the good legislators of Louisiana had in mind, I really don’t want to think too much about their original intent, or have judges use it as a guide to determine the extent of my civil liberties.
But a couple of more serious points can be made here. First, that a certain degree of imprecision may well creep in simply because of the nature of the topic--legislators, like the translators of Martial and Catullus, may shy away from spelling things out clearly, and the language of the law, like that of literature, may be subject to varying interpretations. Finding original intent even for specifically worded legislation, drafted for particular ends, is not always easy--and we, too, will project our own ideas and values onto it. This point is made admirably by William Eskridge in his analysis of the Court’s reasoning in Bowers: that Justices White and Burger projected their own twentieth century concepts of sexuality--and fears of homosexuality--onto texts that were about a different phenomenon altogether; texts that lacked a general concept of homosexuality, and that failed to mention the specific sexual act that Michael Hardwick was arrested for. Indeed, Eskridge appears to be the main reason for the Court’s taking this particular line of argument, both via his 1999 article in the University of Illinois Law Review, and via his amicus brief, filed under the auspices of the Cato Institute.38 (Indeed, we may well speculate that the presence of such libertarian institutions among the amici may well have been an attempt to appeal to the Court’s libertarian leanings--a successful one, as it turned out.)
After establishing the basis for finding a liberty interest that would be violated by the sodomy statue, the Court moves on to deal with the questions of stare decisis. Having dismissed the “ancient roots” argument, Kennedy continues by saying “In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. ‘History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.’”39
At this point the Court in essence issues an apology for its earlier decision, citing the 1955 Model Penal Code of the American Law Institute (which recommended removing criminal penalties for consensual sex), and even referring to the practices of the European Court of Human Rights--a very inclusive gesture, and one that nods as well towards the more liberal branches of natural law that underlie the human rights movement and much international legal theory. The Court continues by citing its own decision in Romer, reiterating that a “provision ‘born of animosity toward the class of persons affected’ has no rational relation to a legitimate government purpose.” Other criticism of Bowers is said to have weakened it (here Richard Posner is cited, among others), and in essence turns John Paul Stevens’ dissent in that earlier case into a majority opinion: “Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.” The opinion concludes with the following words:
“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”40
A text consists not only of itself, but of the readings of it made throughout its history, and needs interpreters to bring out its true meaning, whether it be the Aeneid or the United States Constitution. All judges, you know, are reception theorists.
In addition to this majority opinion, there is a concurrence from Sandra Day O’Connor, who differs in two key respects: first, she does not join in overturning Bowers; second, she relies on the Equal Protection Clause rather than the Due Process Clause. Since there is already a five-justice majority for the full opinion, her concurrence is of theoretical rather than practical value, but does raise some interesting issues about the construction of identity and about the implications of the decision for future discrimination issues, including same-sex marriage.
O’Connor states that the law would not pass the rational basis test, insofar as it disadvantages a particular group of citizens for no reason other than their unpopularity with the majority. The State, she points out, argues that the law is non-discriminatory since it applies only to conduct, rather than status. That is, since it is directed at conduct “closely correlated with being homosexual” it is in fact discriminatory in its intent; and (quoting Scalia’s dissent in Romer) “there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.”41 For Equal Protection purposes, it seems that the construction of identity arises out of conduct; while the state of Texas would in effect make a constructionist, pre-identity claim--that anyone at all is enjoined from engaging in this conduct, and that to do so is a temptation in theory open to all. Pretending orientation doesn’t exist in order to stigmatize those who have it--this, in fact, is the fear I alluded to earlier in debates about whether social construction approaches to sexuality are wise public policy.
O’Connor concludes with an analysis I find theoretically unobjectionable, but a bit misguided in practice. She will not pass judgment on “whether a sodomy law that is neutral both in effect and application” would pass review under Due Process, but certainly suggests that there would be no Equal Protection problem with it. Yet, she argues, if an arbitrary and unreasonable restriction imposed on a minority were imposed on the majority, it would not long stand--so that gender-neutral sodomy laws would be rejected not in the courts, but in the legislatures, since they would restrict the sexual activity of the heterosexual majority in ways they would find intolerable. I think, however, she misreads the coercive power of the state apparatus and the potential for selective enforcement. As Eskridge points out, in 1880 some 70% of those serving sentences under sodomy statutes were either Southern blacks or European immigrants.42 And the Lawrence case started, one suspects, in part because of sexual and in part because of racial animus--an interracial sexual encounter in Lawrence’s apartment became transmuted, thanks to a suspicious and vengeful neighbor, into a false “black man with a gun” call to the local police. Heterosexuals would enjoy effective freedom from prosecution by virtue of their invisibility and the presumption that their sexual acts would, or might, be licit; by contrast, their would be a presumption of illegal conduct whenever a same-sex couple disappeared behind a bedroom door. Equal Protection--although an excellent theoretical basis for equality, one favored by many feminist and gay legal theorists--is likely to be insufficient without Due Process protections, and the Court did well to accept the latter.
Finally, the matter of Scalia’s dissent. As always, well-written and -argued, and pulling no punches. He begins with an attack on the Court’s willingness to overrule Bowers after only seventeen years, compared to its much greater willingness to adhere to the precedent of Roe v. Wade in the Planned Parenthood v. Casey decision. Now, minority opinions are written for a larger public, and to foster further debate--both judicial and political--and that is clearly Scalia’s agenda here. He engages in a fair amount of grandstanding, including a xenophobic swipe at the majority opinion’s reference to the European Court, calling this “meaningless dicta. Dangerous dicta, however, since ‘this Court . . . should not impose foreign moods, fads, or fashions on Americans,’43 here quoting Clarence Thomas in a 2002 concurrence.
His treatment of the Equal Protection argument is also worth a look. Here he accepts the State’s contention that the law is not discriminatory, insofar as it applies to men and women equally:
“Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.”
That is to say, he buys into--or pretends to buy into--the State of Texas’ claim that the ruling does not particularly disadvantage homosexuals. The Law in its majesty prohibits straight and gay alike from having gay sex. The point he is making here is that sexual orientation is not a suspect or protected class in the way gender is, and therefore no strict scrutiny is warranted, merely rational-basis review. Again, clearly grandstanding, since rational-basis review was the standard applied, and the Court found that it failed. But Scalia goes on to use an implicit anti-essentialist argument to his advantage--if the law “is directed toward gay persons as a class,” so be it: “The same could be said of any law. A law against public nudity targets ‘the conduct that is closely correlated with being a nudist,’ and hence ‘is targeted at more than conduct’; it is ‘directed toward nudists as a class.’”44 Which of course carefully echoes the phrases used by Kennedy and O’Connor in their arguments about why the law is merely discriminatory and punitive; and echoes as well an article from the Onion dating to August, 2001, headlined “Nation’s Shirtless, Shoeless March on Washington for Equal-Service Rights.” (We may assume that this is a parody with rather a different thrust from Scalia’s, given the Onion’s general political bent.) The article, which includes mock quotes protesting discrimination against “the differently clothed,” and those who are denied accommodations because of the “exposedness of their skin,” concludes with the leader of the “shirtless rights” movement defending his lifestyle from attack: “I’m hardly surprised [Sen. Craig] ascribes to the repugnant and prejudicial notion that we have ‘chosen’ to be this way,” Hutchins said. “Well, I’ve got news for you, senator: This is the way I am. I was born not wearing a shirt.”45
Pointed attacks aside, Scalia nevertheless raises some important questions about the scope of the ruling. “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.”46 And later on: “This effectively decrees the end of all morals legislation. If, as the court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.”47
A vast exaggeration--there are all sorts of reasons to imagine that laws against bigamy and prostitution will pass a rational basis test--and yet the question of whether same-sex marriage will be permitted has of course been very much in the news over the past two years. Thomas gives a rousing peroration in defense of judicial restraint and the ability of citizens to make laws as they see fit to express their moral and other preferences, and along the way attacks (effectively in my view) the assertions by both O’Connor and Kennedy that gay marriage is not the next logical step after Lawrence. Given the broad scope of the decision and its reluctance to see any compelling state interest favoring the imposition of anti-gay sentiment, their pronouncements seem likely at odds with the logic of their arguments. But this, of course, will be a matter for the ongoing Kulturkampf, coming soon to a state legislature near you: The Federal Marriage Amendment (designed to replace the Defense of Marriage Act), a host of state initiatives, and contentious electoral campaigns.
In retrospect, it was easy to marvel at the whole Finnis-Nussbaum controversy, wonder how it got so out of hand, how a dispute over the meaning of a set of words or passages could become not the stuff of normal scholarly practice, but the basis for charges of misconduct, dishonesty, even perjury. And yet we see that it was a Kulturkampf all along--one that continues to this day, and will continue into the future. One in which we all--as scholars, historians, classicists, and citizens--may have a voice; a voice that may speak the truth as we know it, and that may be heard--even by the highest court in the land.
1 Evans v. Romer, Colorado District Court 1993 (WL 518586); Romer v. Evans, 882 P.2d 1335 (Colorado Supreme Court 1994); Romer v. Evans, 116 Supreme Court 1620 (1996). Full texts of these and other major decisions are easily locatable on websites such as findlaw.com and a variety of university and advocacy websites such as lambdalegal.org.
2 The full text of Amendment 2, passed by voter referendum in November, 1992, reads as follows: “No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status quota preferences, protected status or claim of discrimination.”
3 Finnis’ arguments, set out in his affidavit, are expanded in his “Law, Morality, and ‘Sexual Orientation,” Notre Dame Law Review 69 (1994) 1049-1076.
4 Finnis, affidavit, p. 46, quoted in M. Nussbaum, Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies,” Virginia Law Review 80.7 (1994) 1515-1643 (1585).
5 Finnis, “Law, Morality and ‘Sexual Orientation,’” 1061.
6 On the ways in which the competitiveness and aggression of Greek society affected sexual behavior and attitudes, see J. J. Winkler, “Laying Down the Law: The Oversight of Men’s Sexual Behavior in Classical Athens,” 45-70 in The Constraints of Desire (Routledge, 1990).
7 R. Posner, Sex and Reason (Cambridge, MA 1992), 1 (quoted at Nussbaum 1516).
8 Posner, ibid.
9 Nussbaum 1598.
10 Nussbaum, ibid.
11 Finnis, “‘Shameless Acts’ in Colorado: Abuse of Scholarship in Constitutional Cases,” Academic Questions 7.4 (Fall 1994), 10-41 (here 35).
12 Nussbaum 1641-50. Here Dover joins forces with Nussbaum in a response to Finnis, in several instances recanting the opinions he had expressed in Greek Homosexuality (London, 1978).
13 D. Mendelsohn, “The Stand: Expert Witnesses and Ancient Mysteries in a Colorado Courtroom,” Lingua Franca 6.6 (Sept./Oct. 1996) 34-46 (here 45).
14 Mendelsohn 46.
15 Mendelsohn 37.
16 Georgia Code Ann. § 16-6-2 (1984).
17 Bowers v. Hardwick 478 U.S. 188 (1986).
18 Bowers ibid.
19 Bowers 190
20 The text of the Fifth Amendment reads as follows: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Fourteenth Amendment: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
21 Bowers 191.
22 Bowers 191-92.
23 Bowers 194-95.
24 Bowers 196.
25 Bowers 196-97.
26 Bowers 211.
27 Bowers 199.
28 Bowers 203.
29 Romer 632.
30 Romer 1626-27.
31 Romer 1631.
32 Congressional Record--Senate, Sept. 10, 1996.
33 Lawrence v. Texas 539 U.S. ___2003 No. 02-102 6.
34 Lawrence 7.
35 Lawrence 7-8.
36 Lawrence 10.
37 Lousiana Rev. Statute Sect. 14:89 (1986).
38 W. Eskridge, “Hardwick and Historiography,” 1999 U. Ill. L. Rev. 631-685.
39 Lawrence 11, quoting County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998).
40 Lawrence 18.
41 Lawrence 6.
42 Eskridge 649.
43 Lawrence 14, quoting Thomas’ denial of cert in Foster v. Florida, 537 U. S. 990, n. (2002).
44 Lawrence 17.
45 “Nation’s Shirtless, Shoeless March on Washington for Equal-Service Rights,” The Onion, August 29, 2001.
46 Lawrence 5-6.
47 Lawrence 15.