Sodomy flaw.

Sodomy flaw.

Sodomy flaw.

The law, lawyers, and the court.
March 25 2003 6:00 PM

Sodomy Flaw

How the courts have distorted the history of anti-sodomy laws in America.

This Wednesday, the Supreme Court will be called on to decide in Lawrence v. Texas whether homosexuals have the constitutional right to have sex. The appellants are Houston residents John Geddes Lawrence and his partner, Tyron Garner—who were arrested and convicted of sodomy under a 1973 Texas statute criminalizing same-sex oral and anal sex. Last time the court considered this issue, in the 1986 case of Bowers v. Hardwick, it affirmed that homosexuals did not have the right to have consensual sex in private, either in Georgia—where Hardwick was prosecuted—or in any of the other 25 states with laws criminalizing sodomy.

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Lawyers and legal scholars agree that even if the justices decide in favor of Lawrence and Garner this time out, they will be reluctant to reverse the Bowers decision. And since Bowers was argued as a right to privacy case, the court can decide Lawrence on equal protection grounds without even reaching the Bowers issue. Lawrence's advocates, of course, are eager to provide the court with reasons not to follow this precedent.

One approach to the problem comes from a surprising non-legal source. A group of historians, led by University of Chicago Professor George Chauncey, filed an amicus (or friend of the court) brief for the appellants, pointing to errors and confusion in the Bowers court's interpretation of the historical record on state anti-sodomy laws, including its definition of "sodomy" itself. Though medical or scientific groups often file friend of the court briefs, and legal briefs necessarily deal with historical records, a strictly academic brief is less common—no such brief was filed in Bowers.

Supreme Court decisions are all about history—following established precedents, often trying to ascertain the intent of the framers and weighing whether current legislation follows that intent. If the court is going to rely on historical records, Lawrence offers the opportunity to get the history right this time. And if the history in Bowers was wrong, then the justices' justification for upholding the law, which famously relied on "a millennia of moral teaching" condemning homosexuality, may be wrong, too.

Many Americans, including some on the judiciary, assume "sodomy" is just another word for same-sex sex, and the current law in Texas—and the similar laws in Missouri, Kansas, and Oklahoma—do apply exclusively to gays and lesbians. But the majority of anti-sodomy laws, both today and in the past, apply to both heterosexual and homosexual acts. Although we now understand those acts in the main to encompass oral or anal sex, the historians point out in their brief that at different times "sodomy" has been defined to include bestiality, mutual masturbation, sex in the wrong position, sex without procreative intent, male-male, and male-female sex, though only rarely female-female. In fact, the law in force in Georgia in 1986 applied to both hetero- and homosexuals, contrary to the language of the court's opinion in Bowers, which treated "sodomy" as strictly homosexual sex.

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If sodomy is itself a fluid concept over time, then arguing—as the Bowers' majority did—that its prohibition is "deeply rooted in the Nation's history and tradition" becomes a less than convincing statement. Even the early biblical teachings—from whence the whole idea of sodomy is derived—were hopelessly inconsistent on the topic. In Ezekiel, the sin of the Sodomites is described as inhospitality. In later theology, sodomy became associated with unnatural sex acts in general but was interpreted broadly and never limited to homosexual sex; in fact it included all forms of non-procreative sex. Similarly, in Colonial America where sodomy proscriptions were first used to encourage population growth, they ranged across various forms of "carnal knowledge," though generally including anal sex between men and men, men and women, and men and animals (oral sex not making an appearance in the statutory records until after 1868).

If the purpose for these laws (or, in anti-discrimination parlance, the "compelling governmental interest" justifying singling out a specific group for prosecution) was the need to populate the new world, then one can argue they are obsolete, as the government surely no longer has that interest. Moreover, although laws suppressing non-procreative sex have existed for much of the past millennium, singling out only homosexual sex for suppression is, according to the Lawrence historians, "an unprecedented project of the twentieth century." At the time of the Founders, they argue, and until the late 19th century, the concept of "homosexuals" as a distinct legal category of person didn't even exist. The word itself doesn't make an appearance in the American lexicon until 1892. If the first lawmakers didn't recognize homosexuals as a distinct category of person, they couldn't have designed laws specifically aimed to suppress them, even if they did criminalize certain same-sex behaviors along with other non-marital, non-procreative behaviors.

Only in the late 19th century were laws being used to specifically regulate homosexuals—such as the New York state statute classifying male loitering with the intent to commit a "crime against nature" as a misdemeanor. But these were part of the zealous anti-vice societies' campaigns to shut down dance halls and movie theaters, prohibit restaurants from serving interracial customers, and discourage use of contraceptives, etc. In other words, they were designed to impose what we now recognize as an outmoded vision of the proper social order.

In this context, the persecution that characterizes 20th -century treatment of homosexuals looks more like an anomaly and less like an ages-old patriotic tradition. To discriminate against a certain group, you must be able to identify it and have a reason to fear or dislike it. By this reasoning, discrimination on the basis of sexual orientation only "began" in the early 20th century when homosexuality was defined as a malformation of sexual identity. Suspicion, paranoia, and demonizing followed, culminating in the almost obsessive government-led persecution of the post-World War II era. Why this argument seems counterintuitive, the historians maintain, is that "discrimination, harassment, and stigmatization were so well-established by the 1960s that they were widely imagined to be the inevitable residue of an unchanging social antipathy toward homosexuality."

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Just as the pendulum swung to favor discrimination against homosexuality for much of the 20th century, in the past three decades it has been swinging the other way. Medical groups, some religious groups, the media, private, state, and federal employers, all are abandoning discriminatory practices. In sexual regulation, same-sex sodomy laws are now in effect in only four states, while heterosexual and homosexual proscriptions have been repealed in all but nine states. Correcting the record, showing that for the greater part of history sodomy laws have prohibited same-sex sex only as one aspect of a more general (and historically shifting) prohibition, makes it very difficult to argue, as Texas will want to, that laws such as its homosexual conduct law are part of our nation's longest-lived traditions. If homosexual anti-sodomy laws aren't grounded in "ancient roots," as the Bowers decision claimed, then their only apparent justification is to discriminate. And that, of course, is unconstitutional.

These historians are also advocates, and in condensing centuries into 30 pages, they at times seem to suggest that life was a party for homosexuals at the time of the framers. UCLA professor and brief contributor Lynn Hunt acknowledges that some might choose to date the beginnings of homosexual persecution to the early 18th rather than 19th or 20th centuries but she goes on to argue that the important point is that the framers just weren't really obsessing about homosexual sex. "The strongest historical argument," she says, "is that the more recent intense reaction and preoccupation with this has not been characteristic in the past. We shouldn't assume that because it is in the law that that law expresses some eternal truth."

University of Virginia law professor Anne Coughlin was clerking for Justice Lewis Powell in 1986 when he cast the decisive vote upholding Georgia's anti-sodomy law in Bowers—a vote he later confessed to regretting. "The Bowers case was particularly humiliating because the history was so bad and so wrong," Coughlin says of the historians' contribution in Lawrence. "Powell was really struggling to decide what to do, for that kind of justice this brief would be quite important and could be persuasive."

While the justices in Bowers may have believed their decision was supported by history, their version of history also provided an excellent cover for ideological beliefs. This time, should the justices decide—even on ideological grounds—to ignore the Bowers precedent, they'll have a more accurate version of history to back them up.