Document Type

Article

Publication Date

2004

Abstract

This paper explores the significance of shifting cultural understandings of gay men and lesbians in the Supreme Court's majority, concurring and dissenting opinions in the landmark sodomy case Lawrence v. Texas. By examining the legal authorities in which the case's various opinions are grounded, the article shows that the differing positions taken by the Court reflect radically diverging views on the significance of homosexuality in contemporary culture.

Beyond the rather easy observation that the Supreme Court justices are speaking different languages in the Lawrence opinion, the article contends that the rhetoric of the majority and dissent converge on at least one critical point: both acknowledge that sodomy prohibitions do not simply outlaw certain acts, but profoundly affect groups of people, that is, bisexuals, lesbians, and gay men. This notion was, until recently, hotly contested. But the article shows that the moment for the status/conduct debate about homosexuality seems to have passed, and that even those in favor of allowing states to proscribe gay sex concede that such laws uniquely resonate for a specific subset of the citizenry. This new-found consensus makes sense of Justice Kennedy's far-reaching majority opinion, but complicates enormously the dissent. The article argues that Justice Scalia's dissent is undone by its own position - once it acknowledges the existence of homosexuals, it becomes almost impossible to explain how gay-specific sodomy statutes are not an affront to their dignity.

The essay also suggests that the majority opinion is suffused with an implicit but unacknowledged understanding of anti-gay prejudice. Contending that direct acknowledgment of the pernicious effects of racist bigotry was a crucial component in Brown v. Board of Education to which Lawrence has been compared, the essay argues that Lawrence cannot be similarly sea-changing if it is not also understood to introduce the concept of homophobia to the Court and to the larger public.

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