We Colonials: Sodomy Laws in America
Eskridge's story of state-by-state reform is the freshest and most original part of his book, and readers will find many surprises here. The early homophile activists began to agitate against sodomy laws, and many state commissions continued to take up reform of the penal code as Illinois had. But the two forces did not work together (or even necessarily know of each other's existence), and early on, it was mostly in states where there was little gay activism and reformers did not see sodomy as a gay rights issue that liberalization was possible. (Many states followed the MPC approach of decriminalizing sodomy but simultaneously establishing loitering to solicit sodomy as a misdemeanor.) So it is an unfamiliar and somewhat startling map that emerges, one that bears little resemblance to the reds and blues with which we have all become familiar. Southern and Midwestern states were reasonably well represented among the liberalizers: Ohio and North Dakota removed consensual sodomy from the books before California; Indiana, South Dakota and West Virginia did so before Vermont and New Jersey. By 1977 sodomy reform reached its peak. Twenty-four states had removed consensual sodomy from their books; thirteen others had reduced consensual sodomy to a misdemeanor, making the possibility of jail time remote. Notably, however, sodomy laws didn't linger on just in the Deep South but also in New York, Rhode Island and Massachusetts.
The character of reform also shifted in the late 1970s, as sodomy became even more closely associated with homosexuality in the decade after the Stonewall riots, and it "became more difficult for sodomy repeal to sneak in through the back door of the Model Penal Code." Simultaneously, the connection to homosexuality "became a reason, as well as an obstacle, for sodomy law reform." The campaign to repeal sodomy law was more vigorously taken up by gay rights activists during these years; they successfully used their newly acquired clout to pressure police to ease up on solicitation arrests. But here again--and especially into the 1980s and '90s--sodomy law's meaning and its enforcement drifted apart. As sodomy/solicitation arrests declined for consensual same-sex behavior, sodomy law continued to be vigorously used to prosecute male-female rape cases in instances when coercion could not be proved. Eskridge does not fully explore this practice, but for some victims of sexual violence, it was a critical tool: without legal evidence of force, a sodomy law could send a would-be assailant to prison for oral or anal sex.
Even as actual enforcement became more trivial for gays, the use of sodomy to justify broad antigay discrimination kept the issue on the agenda. "Gaylegal" organizations like Lambda and the ACLU's Sexual Privacy Project were formed, and they shifted the strategy from legislatures to courts. From here on, this is a lawyers' story, and they seem to be the heroes and heroines (a striking number of the antisodomy litigators were women) for whom Eskridge has been waiting. They achieve a victory in New York (in 1980 in Onofre) by getting the court there to apply the Fourteenth Amendment due process right of privacy articulated in Griswold in 1965 and Eisenstadt in 1972 (about access to contraception) to consensual sodomy. The Onofre decision so enraged the head of Buffalo's vice squad that he encouraged his officers to be more aggressive in policing gay solicitation. The resulting arrest of one Buffalo man offered Lambda an opportunity to challenge the MPC's original compromise to decriminalize sodomy while criminalizing solicitation. How, Robert Uplinger's lawyers asked, could inviting someone to participate in lawful behavior be against the law? The New York Court of Appeals accepted this logic, striking a blow at the legal instrument (the crime of solicitation) that historically had ensnared many more gay men than had laws prohibiting sodomy. (One was far more likely to be arrested for solicitation than sodomy, which requires proof of penetration under some statutes.) When the Supreme Court dismissed the appeal in 1984 and allowed the Uplinger decision to stand, progressives concluded that, with the right case, the Supreme Court might be persuaded to strike down the nation's remaining sodomy laws.
Many thought Bowers v. Hardwick, which came before the Court in 1986, would be that case. But the Justices' decision in Bowers ended up being a surprise and a setback, as well as one of the most criticized decisions of all time, according to Eskridge. The case began with the unlikely arrest of a man in his own bedroom in Atlanta, Georgia--a state that was hardly zealous in its pursuit of sodomites. There had been no prosecution for consensual sodomy in Georgia for more than fifty years. Indeed, after Michael Hardwick's arrest in 1982, the Atlanta district attorney (who did not believe consensual sodomy should be a crime) actually declined to prosecute Hardwick. Even Georgia's attorney general, Michael Bowers, does not come across as a particularly passionate defender of the state's sodomy law. He did not bother to attend the oral argument before the Court, for example. (Years later, Eskridge discovered, Bowers still had not read the case that overturned the Supreme Court precedent bearing his name.)
The Supreme Court Justices were not nearly so indifferent. Even an ultimate Bowers dissenter, Justice Stevens, admitted that he had "a bias" against homosexuality. Justice Powell declared (to his barely closeted clerk) that he had never known a homosexual. Chief Justice Burger told a fellow Justice that the "case presented for me the most far-reaching issue" of his thirty years on the bench. With this audience in mind, Hardwick's lawyers tried to steer the "sex-squeamish" Justices away from homosexuality--because Georgia's sodomy law included heterosexual behavior, they framed the issue as pertaining to "intimate sexual conduct in the privacy of the home." ("You would have to read [Hardwick's brief] very carefully," Eskridge notes, "to realize that [he] had actually been arrested for homosexual sodomy, and you would not know from it...that he was a gay man.") Georgia's lawyers asked, by contrast, if gay people had a fundamental right to engage in homosexual sodomy. This was the framing that the majority accepted, concluding that Hardwick's lawyers did not show that such a right was "deeply rooted in this Nation's history." Burger's concurrence was caustic. He referenced the English jurist Sir William Blackstone's belief that sodomy was a "deeper malignity" than rape. "To hold that the act of homosexual sodomy is somehow protected as a fundamental right," Burger declared, "would be to cast aside millennia of moral teaching." (Here was the opening historians and Eskridge would grab in Lawrence.)
The immediate impact of Bowers had little to do with sodomy: right after the decision the head of Atlanta's vice division stated he had no intention of vigorously pursuing sodomy arrests. Instead, gay activists feared that the decision meant court protection of antigay discrimination--an interpretation confirmed after Attorney General Bowers withdrew a job offer to a lesbian in his office because she was a presumed lawbreaker. (Her legal challenge was not successful.) But Bowers also revolutionized the culture at law schools--introducing gaylaw to the curriculum and creating an environment in which law students and faculty came out. (In 1986, Eskridge says, there was only one "unequivocally out" law professor in the country.) And it revved up Lambda, the National Gay Task Force and the ACLU to take another run at state constitutional challenges to consensual sodomy laws. Perhaps because conservatives' "Maginot line" was moving toward same-sex marriage, these campaigns were enormously successful. By the late '90s, several states (Kentucky, Michigan, Montana, Tennessee, Rhode Island, Maryland and, yes, Georgia) had repealed their consensual sodomy laws.
It was amid this legal climate that the Court took up Lawrence. Like Bowers, Lawrence involved the rather improbable arrest of two men at home (police were led there on a phony tip about a crazy man with a gun). It was "too good to be true," remarked Lambda's legal director when she heard about the arrests of John Lawrence and Tyron Garner in Lawrence's apartment in 1998. There were multiple points, moreover, at which the "litigation train" could have stopped: "The police could have confessed that they didn't really have the evidence needed to obtain a conviction under Section 21.06; prosecutors could have decided not to prosecute Lawrence and Garner; state judges could have dismissed charges"; the Supreme Court could have declined to take the case. But in Lawrence, gay rights advocates caught one break after another--including a DA's office that said that "the best way to get rid of a bad law was to enforce it"--and in 2003, both sides found themselves standing before the Court.
Lawrence and Garner's team had a strong privacy argument and a strong equal protection claim--Texas law, revised in the 1970s, was one of just four remaining that criminalized homosexual but not heterosexual sodomy. On their side they also had the present and the past. Present: by 2003 only thirteen states still had laws against consensual sodomy on the books. Almost all Americans aged 15-44 engaged in oral sex; half of that cohort had also engaged in anal sex. The United States stood virtually alone among Western nations in maintaining sodomy prohibitions. Moreover, even conservatives were barely defending sodomy laws anymore. While twenty-nine religious groups filed briefs supporting the reversal of Bowers, no denomination wrote a brief in support of Texas. Remarkably, the Bush Administration did not file in the case. Neither did the Texas attorney general. All of this was evidence that Bowers had not become "part of our national culture," as Lawrence's lawyers asserted before the bar, but was instead "doctrinal anachronism." And, perhaps more important, past: Bowers had not just become but rested on anachronism. The focus on homosexual sodomy didn't have deep historical roots. If anything, there "was a strong and unbroken tradition protecting people against police intrusion into consensual activities...within the home."
This was the distorted history that Kennedy righted in his majority opinion striking down Texas's sodomy law as unconstitutional. The liberty at stake, he said, was not the right to engage in homosexual sodomy, as Bowers put it, but liberty to be free from state control of personal relationships and private activities. At the historical moment that sodomy laws expanded beyond punishing public and/or forcible behavior, Kennedy insisted, they were almost immediately attacked (first by the Model Penal Code, later through state constitutional challenges). Kennedy also called Bowers "demeaning" and said (something the Court almost never says) that it was wrong the moment it was decided. Eskridge is careful to spell out the limitations of the historic decision (which sparked celebratory rallies in forty cities). It confirmed rather than created a new sociopolitical reality, employed a language of "moral distance" and merely affirmed a "tolerable range of sexual variation that the state cannot persecute." This is not the same thing, Eskridge elaborates, as treating homosexuality as benign. States are still "free to suggest that there is a preferred norm, heterosexuality or marriage or whatever."
These cautions don't really tamp down the victorious feeling at the end, and it is enticing and satisfying to read this "deep story of Lawrence." Eskridge seems to turn from historian back to law professor in the last pages of the book, concluding with a meditation on the process of constitutional change. This is generally accessible and interesting even for a nonlawyer, but I sometimes wanted a break from the teleology of Lawrence, as well as more help figuring out the character of these laws and their consistently duplicitous nature. What to make of an offense so serious as to call for death, so trivial as to be hardly policed? And later, of laws seen as an assault on gay men but fought most vigorously by (gay and straight) women? Or, in states where gays had little public presence, by legal professionals who did not see themselves as advancing gay rights? A crime emblematic of homosexuality that comes to be most often used, especially in the years after Bowers, to fill a regulatory stopgap in male-female rape cases? (Did feminists balk at the gay rights challenge to sodomy law?) Relatedly, what is the (long) history of "good" sodomy laws, laws used, in other words, as antiviolence/anticoercion measures?
I am struck, finally, by Justice Powell's declaration in Bowers that he had never known a homosexual, because I wonder if we have ever really known sodomy either. What we have understood it as--a metonym for homosexuality--lines up with neither its recent enforcement nor its original meaning. Given the latter, what is most striking about both the Lawrence decision and Dishonorable Passions is the way that a triumph of modern sexual liberalism has not moved us nearly as far as we might think from our colonial predecessors. True, we no longer prohibit nonprocreative sex, but still, we stay awfully close to the hearth. Lawrence, after all, protected sex in the home, and you would have to read Kennedy's decision very closely to realize that Lawrence and Garner were not life partners. "When sexuality finds overt expression in intimate conduct with another person," Kennedy wrote, "the conduct can be but one element in a personal bond that is more enduring." Descriptions of sexual practices that the state cannot regulate still shade into prescriptions of social roles for LGBT people. Eskridge ends by reminding LGBTs of their obligation to form families. This will be a point on which queer critics may pounce, and I will leave it for others to debate its politics. My observation is a simpler one: in sodomy law's demise, something quite powerful remains.