It isn't every day that a Supreme Court justice quotes my work in a decision. But that's what happened this past June when Justice Arthur Kennedy delivered the majority opinion in Lawrence v. Texas, a challenge to the state's sodomy law. In finding that the law violated vital liberties and privacy guaranteed by the due process clause of the 14th Amendment, the court declared sodomy statutes unconstitutional. Even though only 13 states still had sodomy laws, the decision is hugely important. In describing why these laws violate the most basic notion of liberty, Justice Kennedy used words such as "transcendent" and "dignity" when referring to intimate same-sex relationships. For those who have lived under the heavy stigma of criminality, such language was bracing. It is neither hyperbolic nor cliched to say that the decision marks a dramatic turning point for gay men and lesbians in the United States. And it was a dizzying, heady moment for me when I saw the citation and quote from Intimate Matters: A History of Sexuality in America, that I and Estelle Freedman co-authored.

The Lawrence case is especially notable because, in 1986, in Bowers v. Hardwick, the court had come to precisely the opposite conclusion. Then it upheld Georgia's sodomy statute. In Bowers it found that the proscriptions against sodomy had "ancient roots" and that the Constitution self-evidently did not confer "a fundamental right upon homosexuals to engage in sodomy."

Seventeen years is not a long time in the life of a nation, and certainly not so long that one would expect so dramatic a reversal in legal interpretation. Many things had changed, of course. The composition of the court is different [though many would argue that it has only grown more conservative in the intervening time]. Gays and lesbians have become far more visible and integrated into civic life and popular culture. Public opinion about homosexuality has shifted.

The list of such changes is long, and among them is a vast body of historical scholarship on sexuality that did not exist in 1986. In some ways this may have proved as crucial as any other factor in the shape of the decision. Reading Kennedy's opinion on the morning it was issued, I was struck by the extent to which he constructed a specifically historical argument to counter the opinion in Bowers and justify its reversal. "Oh my god," I thought. "History really does matter."

That Kennedy had turned to history was no accident. A group of historians had filed a brief in support of the plaintiff. George Chauncey of the University of Chicago took the lead role, working closely with the lawyers and writing the drafts that he then circulated among the rest of us for criticism, refinement, and deeper documentation. Kennedy (or at least his legal clerks!) seemed to have read not only the brief but also some of the scholarship that it distilled, because the accounting of history that the decision provided would have made a history professor proud.

In particular, the court seemed to "get" two key elements of the argument that we made. We could not claim, of course, that sodomy laws did not have a long history. But the scholarship of the last two decades could let us do something that historians are good at: provide deep context for "the facts." Yes, the colonies prohibited sodomy, but these statutes existed within a broad matrix of laws that prohibited, and quite severely punished, virtually all sexual conduct that was nonmarital or nonprocreative. Most of these legal prohibitions have since fallen away; the court itself has struck down laws prohibiting access to contraceptives for both the married and unmarried. In this reading, the continued existence of sodomy laws is anomalous and stands outside the stream of U.S. history.

Historical scholarship also allowed us to alert the court to something else: while sodomy laws may be old, they have mostly been unused. The state has not made much effort to pursue men who have sex with men until, that is, the mid-twentieth century. Then, state agencies at every level of government roused themselves to pursue, identify, harass, arrest, and institutionalize gay men and lesbians. From Congress and the Executive Branch down to the local vice officer, queers became the target of intense state persecution. The point: rather than the ancient tradition so confidently described in Bowers v. Hardwick, there has been a unique virulence to American homophobia in the recent past.

Finally, central to the enterprise of historical research on sexuality has been the much bandied about notion of "social construction." Rather than seeing sexuality primarily in biological terms and then describing how it has been fought over, most historians in the field look toward the more decisively shaping powers of culture, social structure, and economic systems to understand human sexuality. When Justice Kennedy quoted Intimate Matters ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions."), he really seemed to get it. That is, sodomy laws mean something profoundly different today than they did in the seventeenth century. To criminalize same-sex relations today is to strike at the integrity of a human being - to violate core constitutional notions of liberty and privacy - in a way that was likely not true when those statutes were written centuries ago.

Yes: June 26th was a deeply satisfying day for me.

Related Links

Stephen A. Allen,"Did Gays Get All They Want from the Supreme Court? (Really?)" (HNN)

The Historians' Case Against Gay Discrimination