High noon for equality at the Supreme Court. (Guest Opinion).

Capozzola, Christopher

On March 26, the United States Supreme Court heard oral arguments in a challenge brought by Texas residents John Lawrence and Tyron Garner to that state's Homosexual Conduct Law. Among the dozens of legal briefs filed by advocacy groups seeking to guide the Court's thinking is a short contribution by seven leading historians, who filed an Amicus Brief to the Court recorded as follows:

Brief of Professors of History George Chauncey, Nancy F. Cott, John D'Emilio, Estelle B. Freedman, Thomas C. Holt, Elizabeth Lapovsky Kennedy, and Linda K. Kerber as Amici Curiae in Support of Petitioners, Lawrence v. Texas (U.S. Supreme Court No. 02-102).

Authored by some of the profession's most prominent scholars of lesbian and gay history, the brief shows that historical interpretation (and re-interpretation) is no mere academic exercise, but can have dramatic political consequences.

The historians make two arguments. First, they note that sodomy has meant drastically different things over the ages, and that "no consistent historical practice singles out same-sex behavior as 'sodomy' subject to proscription." This is an important corrective to the historical reasoning of the Supreme Court in Bowers v. Hardwick (1986). In that case, the Court ruled by a slim 5-4 majority that the Constitution's privacy provisions do not cover a fundamental right to engage in "homosexual sodomy," which is not, reasoned the Court, "deeply rooted in this Nation's history and tradition." In his decision, Justice Byron White based much of his ruling on the "ancient roots" of such laws, which predated the Constitution by a few thousand years. Joining the majority, Chief Justice Warren Burger warned that to protect gay sexual privacy "would be to cast aside millennia of moral teaching" and even asked during oral argument, "Didn't they used to put people to death for this?"

But, say the historians, from a legal perspective, the concept of sodomy is "strikingly inconsistent." Medieval Christian writers included under its umbrella heterosexual acts in unapproved positions; likewise, in the American colonial period, when sodomy encompassed masturbation and bestiality, the term remained hopelessly vague. All we know for certain is that during those millennia of moral teaching, "'sodomy' was not the equivalent of 'homosexual conduct."'

The historians then suggest that Texas's law is not ancient, but quite new. It "does not carry the pedigree of the ages but is almost exclusively an invention of the recent past." The law was passed only in 1973, when Texas decriminalized heterosexual sodomy while specifying homosexual sodomy as a crime. It was not an ancient effort, but a 20th-century one, part of a vast system of legal, psychological, and medical regulations that targeted homosexuals between the turn of the century and the 1960's. The historians claim that "the unprecedented decision of Texas and several other states, primarily in the 1970's, to enact sodomy laws singling out 'homosexual sodomy' for penalty, is best understood historically in the context of these discriminatory measures."

I am not convinced of this, and would have liked the historians to place the Texas law in the context of anti-gay initiatives that developed in tandem with gay liberation itself, a dynamic that John Gallagher and Chris Bull have chronicled in Perfect Enemies: The Religious Right, the Gay Movement, and the Politics of the 1990's (1996). It's not that the Texas law was the last gasp of mid-century legislation aimed at keeping down an almost invisible class. Rather, it was an early piece of post-Stonewall anti-gay legislation that has responded to gay visibility by mobilizing a powerful and durable grass-roots conservative constituency.

Much is at stake in how the Court considers history, and much can turn on a single word: animus. The historians wish the Justices to interpret the Texas law as motivated by what the historians term "a uniquely 20th-century form of animus directed at homosexuals." The word choice is no accident: the historians are attempting to invoke the logic behind the Court's decision in Romer v. Evans (1996), which struck down Colorado's anti-gay Amendment 2 because it singled out homosexuals on the basis of "animus toward the class it affects." Likening Texas's law to Amendment 2 makes Romer a valuable precedent and distinguishes it from Bowers.

That move turns the historians' brief from the handiwork of a dozen cranky schoolmarms--red pens in hand, correcting the Court's homework--into an important intellectual opening the Court can exploit if it wants to rewrite Bowers without admitting that it was wrong. In Planned Parenthood of Southeastern Pa. v. Casey (1992), the Court acknowledged that changing historical circumstances can authorize the reversal of an earlier decision, and in a 1993 case, Justice David Souter went a step further to say that if historical scholarship corrects the reasoning on which a decision rests, the decision can rightly be revisited.

As this issue went to press, the Court had not yet heard oral arguments or delivered an opinion. Commentators across the political spectrum believe that the Court will overturn at least a few sodomy laws--perhaps only those in the four states that single out gays and lesbians for punishment. The historians, however, hope that the Court will get out of the business of regulating sexual consensual behavior altogether: "Neither millennia of moral teachings nor the American experience teach [sic] any consistent message about which sexual practices between consenting adults should be condemned and why." But in today's political climate, only an optimist could believe that such a ruling is forthcoming. And the study of history, alas, leaves little room for optimism.

Christopher Capozzola is assistant professor of history at MIT. The full text of the Lambda brief is available at www.lambdalegal.org.