Mentioning the Unmentionable Vice:
Five Years after Lawrence vs. Texas

by James Dye

I had the opportunity recently to attend a continuing legal education (CLE) symposium at Emory University in Atlanta.  CLE classes are notoriously dull affairs of well-fed lawyers and desiccated judges, huffing and blowing about collateral estoppel and mispronouncing certiorari while some distinguished speaker raises tedium to a high art. 

In this instance, however, the word of the day was neither estoppel nor certiorari but one that immediately got everyone’s attention: sodomy.  Nor were the speakers the usual, soporific CLE instructors but real legal heavyweights.  Among the panellists were people whose judicial expertise and Demosthenic oratory had quietly undone some eight hundred years of socially-sanctioned persecution.

The symposium, sponsored by the American Constitution Society, Lambda Legal, the Stonewall Bar Association of Georgia, and the law firm of Alston & Byrd, marked the fifth anniversary of the case that struck down sodomy laws in the United States, Lawrence vs. Texas.

Most people know what sodomy is, and most people are wrong.  In point of fact, the word’s meaning is so vague that John Wyclif, in his 1395 translation of the Bible, used it as a synonym for garden-variety (i.e. heterosexual) adultery.  In modern German it generally connotes bestiality.  This fuzziness of meaning—it was an allusion I could not resist—has served the forces of darkness well. Both law enforcement and the judiciary have been using charges of sodomy to advance a conservative agenda since the middle ages, when the word was coined. 

By 1533, when Henry VIII’s government enacted a law against homosexual relations, the term sodomy was already ambiguous, so the word buggery, which originally referred to a Bulgarian hæresy, was employed.  No ambiguity there.  Of course, buggery, in Henry VIII’s law code, could also refer to bestiality.  There were a lot of sheep in renaissance England and, apparently, a lot of lonely shepherds.

This side of the pond, buggery never really caught on; sodomy has always been the red, white, and blue, traditional American value.  Although it took a U.S. Supreme Court case to render sodomy laws null and void, one should not say that there had been no progress prior to that.  By the time Lawrencecame around, roughly half the states in the U.S. had revoked their sodomy laws through the legislative process.  In the other states, sodomy had been reduced from a capital offence to one that incurred only a small fine.  This sort of progress reflects a trend that may be why the Supreme Court ruled the way it did. 

Sodomy cases were embarrassing, not just for the accused but also for the accusers.  Those morally outraged that sodomy was going on in their midst found that these causes célèbres only made things worse.  The hellfire-and-brimstone set were shocked that their own actions had given visibility to something that, heretofore, had preferred a shadow existence.  They needed to put the genie back in the bottle.  But they were, as St Luke observed, kicking against the pricks. 

Possibly the loudest of these kicking conservatives—and someone quite confused on the meaning of sodomy—was the junior senator from Pennsylvania, Rick Santorum, who, in the build-up to Lawrence, equated the crimen nefandum with polygamy, incest, pædophilia, and, oh yes, bestiality.  The following year the Commonwealth’s voters, evidently a godless motley of underage, in-bred, bigamist sheep, rejected Mr. Santorum by the widest margin of defeat for an incumbent senator since 1980.

Seventeen years had elapsed before Lawrence overturned another well-known case, Bowers vs. Hardwick.  As in Hardwick the Lawrence matter involved two men found in flagrante delicto in a private residence.  For such a case to qualify as impact litigation, there had to be another deciding factor: these things had to occur in a state with a sodomy law. Surprisingly, this set of circumstances was not particularly rare.  What was rare was to find someone willing to challenge the system, all the way up to the U.S. Supreme Court, with all the celebrity—or notoriety—that these proceedings entail. 

Generally such arrests have their desired effect, namely, to humiliate the parties into silence.  It is a special courage that emboldens people, disgraced in the public forum, to remain in that forum until justice is served.  And the risk is high.  In Hardwick injustice was heaped upon injustice when the Supreme Court ruled that the individual states had a right to have, and to enforce, sodomy laws and, moreover, to interpret sodomy however they wanted.  Rick Santorum must have been assembling a catalogue by then, no doubt with pictures of sheep.

For the LGBT community, Hardwick was a bitter pill.  Following that decision some states, grasping just how unclear the concept of sodomy was, revised their law codes to target homosexual activity exclusively.  And the seventeen years between Hardwick and Lawrence did mark a period of growth.  As one of the speakers at the symposium, the University of Minnesota’s Dale Carpenter, observed, between 1986 and 2003 LGBT people became more visible, so that the Supreme Court justices, who had previously maintained they didn’t know any of those people, all at once did.  Once the letters L, G, B, and T had a human face, discrimination was harder. 

Though the Supreme Court might at present take credit for so progressive a decision as Lawrence—and hope that no one remembers the travesty of Hardwick—it should be noted that the court’s ruling belatedly reflected public opinion.  Sodomy laws had become archaic and tedious.  Moderator Anthony Varona, a professor at the American University Washington College of Law, recalled how, in all America, only Rush Limbaugh seemed upset about the Lawrenceruling.  Those telephoning the turbulent Mr. Limbaugh’s radio program, generally his cheerleaders, advised him to chill.

In some respects Lawrence is disappointing.  In the last half decade, the decision has not meant full equality for LGBT individuals.  The symposium’s keynote speaker, Paul Smith, who argued Lawrencebefore the Supreme Court, remarked that, in the wake of this litigation, Florida moved quickly to put the kibosh on gay adoptions. 

Since that time only one state, Massachusetts, has instituted gay marriages.  Arguably, the Massachusetts marriage case, Goodridge vs. the Department of Public Health, could have been decided without the federal precedent, as the Bay State had done away with its sodomy law long before.  Very few states recognise gay marriages performed in Massachusetts or in other countries.  Many more states have scrambled to enact constitutional amendments or statutes forbidding gay marriages and/or refusing to acknowledge them. 

Lynn Hogue, a professor at Georgia State University’s College of Law and a panellist at the symposium, believes that Lawrence is not a vehicle for change; he holds to a pre-Lawrence conviction that the individual state legislatures, not the courts, will rule on LGBT matters and that progress will be glacial, if at all.  But Nan Hunter, a professor at the Brooklyn Law School and also on the panel, declared that Lawrence was itself change, that the decision gave the LGBT community the feeling of becoming naturalised citizens.  Lambda Legal’s senior counsel, Susan Sommer echoed this sentiment: Lawrencealtered our perception of ourselves as criminals. 

This removal of criminality brings to mind Dr. Kenneth Clark’s famous doll test that figured prominently in another Supreme Court case, Brown vs. Board of Education.  In the test, conducted in the 1940s, black children between the ages of three and seven were given a choice of a white or a black doll to play with; most chose the white doll.  When asked to draw pictures of themselves, many of the children would use a white or yellow crayon to colour the figures. 

Similarly, many in the LGBT community have, without giving a clear explanation, rejected the labels ‘lesbian,’ ‘gay,’ ‘bisexual,’ or ‘transgender.’  Though the explanation is not forthcoming, the undercurrent is clear: to be any of these is to be a criminal, a sodomite.  The gravity of such a title becomes heavier when wrapped in the mystique of a dubious definition.

Jon Davidson, another panellist and a Lambda Legal attorney who worked on Lawrence, indicated that the case was a bellwether rather than doctrine.  But, in his opinion, it does more than just point the way; it does so with optimism.  Lawrenceis a step in the right direction, out of the chasm that Hardwick created, signalling new hope for LGBT relationship status, employment issues, parenting and adoption rights, and hate crimes legislation.

Lawrence’ success was in securing a right of privacy, a right that had been left to the states by the case’s predecessor Hardwick. While the infamous Senator Santorum ranted that the U.S. Constitution did not guarantee a right of privacy, the American populace harrumphed and turned the volume down.  Seventeen years after Hardwick America had looked again into the lair of the sodomites.  And, this time, they yawned. To millions of LGBT people in the United States, it was a glorious, life-affirming yawn. To be sure, Lawrence lagged behind public opinion, and the Supremes had to play an inelegant game of catch-up. 

Public opinion may yet be cold to the notion of gay marriage, but it’s certainly warmer than it was when sodomy could still be criminalised.  So, happy birthday, Lawrence vs. Texas:  we may not have our public place at the table, but you guaranteed us a private place in the bedroom.

No animals were harmed in the composition of this essay.