My concerns about the role of historical interpretation in legal advocacy resurfaced in later court cases concerning homosexuality. Just as the opponents of abortion had claimed long-standing hostility to the practice, the Supreme Court in Bowers v. Hardwick (1986) based its support for state antisodomy laws on the “ancient roots” of state regulation of homosexual conduct. That decision, which helped justify a range of discriminatory practices against homosexuals, stood until 2003, when the Court heard the case of Lawrence v. Texas, which challenged a state prohibition on sodomy for homosexual but not heterosexual acts. Lawrence provided a critical opportunity for the Supreme Court to reconsider Bowers, and once again, a group of historians collaborated to produce an amicus brief.
In this case, a historian, University of Chicago professor George Chauncey, drafted the document at the request of Lambda Legal Defense, a gay rights organization, and in collaboration with several private attorneys working pro bono. The deadline was even tighter than with Webster. Within two weeks, Chauncey prepared at least three full drafts, circulating each to a small group of scholars. Six of us offered substantive revisions and contributed historical evidence, and nine scholars signed the final brief.17 As with Webster, I raised questions about the framing of the argument and the use of evidence, and Chauncey incorporated into the brief most of my suggestions and those of other signers. Successive drafts refined the central arguments about the relation of the modern concept of homosexual identity to the historical enforcement of sodomy laws. Some of my concerns — such as introducing the broader context of the regulation of sexuality—could not be fully addressed in the thirty-page brief. Chauncey shared my concern, but as he explained at the time, “it gets really complicated when we try to boil this sort of argument down for this short and consequential a brief.”i8 After reading the drafts of amicus briefs being prepared by the Cato Institute and the American Civil Liberties Union, which addressed more fully the history of sodomy law, I felt reassured about our decision to focus more heavily on the history of homosexual identity.
As in the Webster case, the historians’ brief in Lawrence had to take into account both legal precedents concerning homosexuality and changing social attitudes. For the most part, in response to the static historical logic in Bowers, the historians emphasized change over time rather than tradition. It would have been a much harder task to claim implicit sexual rights than in the Webster case, given the explicit antisodomy laws in early America. Rather, the historians’ brief in Lawrence highlighted changing constructions of and attitudes toward homosexuality. Distilling a generation of scholarship, the brief explained that although a range of nonprocreative sodomitic acts — between men and women, men and men, and humans and animals — had been proscribed in colonial America, these laws had not singled out “homosexual sodomy.” Indeed, the term “homosexuality,” referring to a distinct identity, did not appear until the late nineteenth century.
But the document also created its own version of originalism when it presented an alternative legal tradition to counter the “unmitigated hostility” claimed in Bowers, which had held that “homosexual conduct” had been subject to state regulation “throughout the history of Western civilization.” To show that there had been no continuous tradition of singling out gay sex as illegitimate, the Lawrence brief cited biblical and medieval texts that applied the terms “sodomy” and “unnatural acts” “inconsistently to a diverse group of nonprocreative sexual practices” that could include sex “in the wrong position or with contraceptive intent” (5). For colonial and nineteenth-century America, the brief used legal sources to document an early focus on bestiality, buggery, and other nonprocreative acts rather than “homosexual conduct.” The Texas ban on homosexual sodomy, it argued, could not be justified in terms of long-term historical precedent.
The brief went on to show that laws specifically penalizing homosexuals — as opposed to a broader category of nonreproductive sexual acts — were largely a product of the late twentieth century and not the original intent of the framers of the Constitution. Rejecting the logic of Bowers, the brief proclaimed that “the specification of ‘homosexual sodomy’ as a criminal offense does not carry the pedigree of the ages but is almost exclusively an invention of the recent past” (4). In short, the broad proscription on all nonprocreative acts that dominated colonial laws eventually narrowed to target a relatively new class of individuals — homosexuals. The brief thus applied a version of original intent in reference not to the framers of the Constitution but to the popular construction of sexual categories in early America. Homosexuality per se had not been condemned in the eighteenth century, it argued, since it had not yet been constructed as a sexual category. Rather than claiming an implicit “right” or even a degree of tolerance, the brief suggested a “relative indifference” to sodomy among authorities in the early republic.
Despite this reliance on tradition, a dominant interpretation in this brief concerned the changing historical applications of sodomy laws, which had “varied in content over time.” In response to the growing visibility of lesbian and gay subcultures in the twentieth century, the discriminatory impact of these laws had intensified. As a generation of scholars has shown, heightened state prosecution accompanied this new visibility, particularly from the 1930s through the 1960s. That era of “public hysteria,” however, should not be read backward ahistorically as a static hostility that could be used to justify laws directed solely at homosexual behavior.
The brief in Lawrence emphasized historical change in other ways as well. It showed how the movement of women into the wage labor force and full citizenship contributed to undermining older medical views of lesbians in the early twentieth century. The brief documented an important shift from a period of escalating persecution of homosexuals after World War II to one of growing public tolerance in media and law since the 1970s. These contexts helped explain why the psychiatric profession eventually removed homosexuality from its diagnostic list of pathologies. In sum, change over time rather than original intent required the removal of discriminatory statutes such as the Texas law at issue in this case.
In the process of revising successive drafts of the brief and despite extremely tight time constraints, our dialogue over sources and interpretations was greatly facilitated by e-mail, which had not been available during the Webster case. As in that earlier brief, however, time and space constraints meant that it was not possible to do justice to all of the perspectives that historical writing would consider. For example, in documenting the era of intensified prosecution, we could only allude to the broader historical context of American sex panics, which periodically targeted groups such as prostitutes and homosexuals in antivice crusades. Another theme that we could only suggest but that influenced the Court’s decision concerned the changing application of sodomy laws: Had they initially been used primarily to prosecute nonconsensual sexual relations, either between men and men or between men and boys, since rape laws explicitly covered only heterosexual relations?19 If so, the application of sodomy laws may have broadened in the twentieth century, effectively criminalizing once-tolerated same-sex consensual relations.
Finally, in pointing to a decline in hostility toward homosexuality since the 1970s, the historians’ brief may have been overly sanguine. To claim that “in the last decade, the acceptance of lesbian and gay men as full and equal members of our society has become commonplace” (26) certainly resonates with the experience of living in San Francisco, Los Angeles, or New York. The marketing of queer and lesbian subjects in the national media notwithstanding, I suspect that on the subject of homosexual rights, the battle for public opinion will continue for some time into the future. The brief did acknowledge the persistence of discriminatory laws — the Texas statute among them — but it concluded that such laws “hold no legitimate place in our Nation’s traditions” (29). It may be formulaic to invoke tradition in these constitutional cases, but in Lawrence, perhaps more so than in Webster, historians had to counterbalance arguments based on “tradition” with a reliance on social change in order to justify a decision that would overturn discriminatory laws against gay sexual practices.
On 26 June 2003, by a six to three majority, the Supreme Court ruled that the Texas statute against homosexual sodomy violated the due process clause and was thus unconstitutional.20 The decision, which overturned Bowers, stated that the Constitution provides individuals, including homosexuals, the right to choose their personal relationships “without being punished as criminals” (2) and to engage in consensual sexual practices “without intervention of the government” (18). One section of the decision drew directly from the historians’ brief to correct the erroneous interpretation of the “ancient roots” of hostility to homosexuality. The majority opinion, written by Associate Justice Anthony Kennedy, stated, for example, that “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter” (7). Quoting Intimate Matters, it affirmed that “the modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions” (8).
I could not have been more pleased with this use of historical interpretations and of my own work to support legal change. I also felt that the decision as a whole endorsed historical process over precedent. In the closing paragraph of the decision, Justice Kennedy commented on those who had written and ratified the due process clause in the Fifth and Fourteenth Amendments: “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom” (18). It is this principle that can make historical interpretation so central to the process of legal change.