Last edited: December 07, 2004

What Gay Studies Taught the Court

Washington Post, July 13, 2003
1150 15th Street NW, Washington, DC 20071

By Rick Perlstein

The Supreme Court rarely overrules itself, and when it does, the justices who carry out the revolution often take great care to say why. That’s exactly what Justice Anthony Kennedy did last month in striking down a Texas law that sought to regulate “homosexual conduct.” His majority opinion in Lawrence v. Texas not only says that members of the same gender can enjoy sexual intimacy, free from state interference, in the privacy of their own home. It also seeks to dismantle the legal and historical underpinnings of an opposite ruling that the court issued only 17 years earlier in a Georgia case, Bowers v. Hardwick.

Some court watchers have called Lawrence the most momentous civil rights decision since Brown v. Board of Education outlawed school segregation in 1954. What hasn’t been explained is the basis for Kennedy’s landmark ruling. What has changed since Bowers was decided in 1986? The answer: nothing less than the historical understanding of laws regarding sexual conduct.

In the Bowers case, Justice Byron R. White wrote simply and assuredly that since “Proscriptions against [homosexual] conduct have ancient roots,” an attempt to claim that such conduct was protected by the Constitution was “at best, facetious.”

Kennedy, because he’s a Supreme Court justice criticizing other Supreme Court justices, politely took issue with White’s assertion—and with a similar statement in Chief Justice Warren Burger’s concurring opinion in Bowers—that governments have long sought to curb homosexual behavior. Kennedy wrote: “In academic writings, and in many of the scholarly . . . briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinion in Bowers.”

Concluding a historical analysis that took up nearly half of his ruling, Kennedy went right to the heart of White’s and Burger’s formulation. “[F]ar from possessing ‘ancient roots,’ American laws targeting same-sex couples did not develop until the last third of the twentieth century.” In plain English: Everything the Bowers majority thought it knew in 1986 about gay history was wrong.

What happened to make assumptions that were obvious to one judicial generation so obviously wrong to the next? Credit the scholarly efforts of a group of history professors, toiling away in the nascent and controversial field of gay studies.

A careful reading of the majority opinion shows that it relied heavily on three amicus curiae (“friend of the court”) briefs. These briefs are arguments submitted by parties interested in the case detailing why the justices should decide it their way. Many cases attract such briefs, which often play little role in the outcome. But these three—filed by the American Civil Liberties Union, the Cato Institute and a coalition of history professors—are singled out by name in the majority opinion. Skip these briefs and you’ve skipped the essence of what is remarkable about Kennedy’s ruling.

To follow the briefs’ argument, the best thing to do is to quote directly from Kennedy’s opinion. “At the outset,” Kennedy writes, “it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.”

That’s a stunning repudiation of what White, Burger and the rest of the majority stated so matter-of-factly in Bowers. On what did Kennedy base that statement? On the historical research outlined by George Chauncey of the University of Chicago, and nine other professors in the historians’ brief.

Here is what the historians told the justices:

“In colonial America, regulation of non-procreative sexual practices—regulation that carried harsh penalties but was rarely enforced—stemmed from Christian religious teachings and reflected the need for procreative sex to increase the population. Colonial sexual regulation included such non-procreative acts as masturbation, and sodomy laws applied equally to male-male, male-female and human-animal sexual activity. ‘Sodomy’ was not the equivalent of ‘homosexual conduct.’ . . . The phrase ‘homosexual sodomy’ would have been literally incomprehensible to the Framers of the Constitution . . . .”

Kennedy’s opinion adopts that history, as well as the scholars’ assertion that states have only recently sought to criminalize “homosexual conduct.” As Kennedy notes, “. . . according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality . . . .”

So much for ancient roots.

The ACLU brief added, “A cramped understanding . . . of our nation’s history lies at the heart of the error in Bowers v. Hardwick.” Or, as Kennedy put it (politely), “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.”

But why did states bother to ban certain kinds of sex—applying equally to everyone, not partners of the same gender—if they weren’t concerned enough to enforce them? Kennedy explains: “A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent. . . .”

As the historians put it in their brief: “Even in periods when enforcement increased, it was rare for people to be prosecuted for consensual sexual relations conducted in private, even when the parties were of the same sex.”

Starting in the 1960s, with the passage of new and better laws to prevent sexual abuse and curb sexual predators, states began repealing their sodomy laws as embarrassing anachronisms. Simultaneously, some states passed new laws directed at homosexuality. One of them was Texas, which enacted the 1973 law that came under review in Lawrence. “When homosexual conduct is made criminal by the law of the State,” Kennedy wrote, “that declaration in and of itself is an invitation to subject homosexual persons to discrimination in both the public and the private spheres.” And thus, he found, the Texas law violates the Fourteenth Amendment guarantee of equal protection under the law. Along with an expansion of the right to privacy, that became the basis for overturning Bowers.

When the majority in Bowers reasoned that there was nothing in America’s Judeo-Christian, common law or statutory heritage to establish a constitutional right to sexual privacy for gays, the historical errors were understandable. As a field, gay studies was still embryonic, marginal and distrusted even within the academy. In 1989, three years after the Bowers decision, Chauncey won a variety of academic awards for his Yale dissertation “Gay New York: Urban Culture and the Making of a Gay Male World.” It took another three years for him to get a job offer as a professor. Still, even cutting-edge universities weren’t certain what to make of this new field of historical study. Was it scholarship? Could it stand up to rigorous scrutiny?

Meanwhile the practitioners of what some called “queer history” were hard at work, undertaking one of the hardest and most valuable tasks that historians can do—examining a set of assumptions so taken for granted, so apparently timeless, that they didn’t seem to have histories at all. And fortunately for the eventual plaintiffs in Lawrence v. Texas, they gave Bowers the strictest of scrutiny.

There is irony here. When the work of Chauncey and his colleagues received attention in the past decade, it was often portrayed as part and parcel of those awful trends in intellectual life: “political correctness” and “special interest studies.” Journalists even fueled something of a late-’90s backlash against gay studies. Not untypical was a 1998 “60 Minutes” segment on gay studies, in which Mike Wallace said that “some of what is being taught on college campuses today is for mature audiences only.”

Now a majority of the nation’s highest judicial body, no doubt aided by its younger and more open-minded clerks, has found merit in that scholarship. It has been judged sound—bedrock, in fact, for settling the law of the land.

Some commentators may have skipped their homework in reporting on the historical foundations of the majority’s decision. But the ruling should leave the rest of us cautious about what we assume is and isn’t deeply rooted in our nation’s history and tradition. And isn’t that just what good history teachers are supposed to do?

  • Rick Perlstein, author of “Before the Storm: Barry Goldwater and the Unmaking of the American Consensus” (Hill & Wang), is at work on a book about the Nixon years. He lives in Chicago. Author’s e-mail:

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