A review and discussion of the article, "What Gay Studies Taught the Court: The Historians' Amicus Brief in Lawrence v. Texas", by George Chauncey.
After reading "What Gay Studies Taught the Court," it immediately struck me as peculiar that the Supreme Court would have put so much emphasis on traditional
understandings of morality. It's peculiar to me because the role of the Supreme Court, as I understand it, is to
decide matters of Constitutional law; to ensure that Congress follows the rules about rulemaking enshrined in the Constitution.
Of course, the Supreme Court frequently finds itself in a position of having to be creative in interpreting Constitutional
edicts which were, in the first place, left sufficiently "open" so as to ensure the durability and longevity of their usefulness. Famous phrases from the U.S. Constitution, like, "cruel and unusual punishment," were
phrased as such because a contemporary interpretation would always be needed. What is cruel and unusual by today's standards
may no longer be cruel nor unusual in a hundred years.
This article emphasizes the inconsistent moral teachings about sodomy throughout history. But ironically, one of the most conservative members of the Court, Justice Antonin Scalia --
certainly not regarded as a friend of the American homosexual -- has expressed disapproval of the trend
toward what some call, "judicial legislation." That is, Scalia would regard his personal views on morality as irrelevant to his role as a Supreme Court Justice. Scalia would much prefer that Congress decide and articulate precisely and thoroughly what the law of the land is to be, and that the Supreme Court only interfere when Congress (or perhaps a lower court's decision), has violated some Constitutional provision. So even though this article1 points
out that moral teaching on sodomy has been inconsistent in many ways over the millennia, a conservative Justice such as
Scalia probably finds the history of moral teaching on this matter to be irrelevant. It is not his job to decide the law based on morality,
and he knows that. Justice Scalia seems to be very aware that it is his job to insist on conformity to the United States Constitution, and nothing more.
In fact, Scalia has a worse reputation than he really deserves within the gay community. Understanding
Scalia's true position in Lawrence v. Texas -- and his devotion to jurisprudence -- promotes a less infuriating view of Scalia's approach to homosexuality and the law. Personally, I would dislike many of the
consequences of Scalia's minority opinions, and I do dislike the consequences of a good number of his majority
opinions. And yet, he has a very defensible position which my principles force me to consider acceptable. Specifically,
Scalia's position is that it is the role of the Congress and state legislatures to make laws, and it is the role of the
Supreme Court to support those laws unless -- and ONLY unless -- they conflict with some specific clause or clauses in the U.S. Constitution.
Now, some people believe that sodomy laws do conflict with some clause or clauses in the U.S. Constitution, and
if you can construct your case against sodomy laws that way, it's a different matter than the one I'm discussing here.
But most liberal Americans don't seem to understand that the matter before the Supreme Court in Lawrence v. Texas
was not "Are sodomy laws fair?", but rather, "Is there anything about the Texas sodomy law which conflicts with some
specific guarantee in the U.S. Constitution?"
William Safire, in his "On Language" column in the New York Times (Magazine), writes:
An Associated Press account of [Scalia's] stinging dissent in Lawrence v. Texas, in which
the Court struck down that state's anti-sodomy law, quoted Scalia out of context as writing [in his dissenting opinion], "I have nothing against homosexuals," which seemed condescending. His entire sentence though, was . . .,"I have
nothing against homosexuals, or any other group, promoting their agenda through normal democratic means."2
Safire goes on to point out that the
preposition "against," in, "I have nothing against," takes the
gerund object,
"promoting," rather than "homosexuals."
The point is this: Scalia's job is to gauge whether a law passed by Congress, or, as in this case, a State legislature, has
violated some provision of the U.S. Constitution. Scalia's judgment was that the Texas anti-sodomy law did not do this.
That's it.
The correct way to get rid of anti-sodomy laws, in Scalia's view, is to convince a majority of the voting public that they
are unnecessary, unfair, or otherwise shitty, and/or recruit one's legislative representatives to the same view. The
Constitution does provide very important exceptions to this, which is why the United States is no longer segregated by race.
But Scalia's position is that since it was not homosexual orientation, but rather homosexual behavior (and even, in some other instances, heterosexual sodomy) which was being punished, the Constitution provides no specific protections.
Let me be clear: Scalia's position is one with which I do NOT agree -- I subscribe to an opposing viewpoint that considers
the difference between homosexual behavior and homosexual orientation to be semantic and distracting in this case. And at
the same time, Scalia's position is not untenable -- it is not nearly as disgusting as it's often made out to be.
Notes1. The brief itself was provided to the Supreme Court at the time of the Lawrence v.
Texas decision, but the article includes more than just that amicus brief. This article gives background information
about sodomy laws, and, in a wondrous display of self-reference, (a phenomenon which, strangely, always fascinates me), it
discusses the way in which the brief (contained in that very article) "bolstered" the Majority's reasoning in Lawrence v.
Texas. So, in its "article" (as opposed to "brief") form, it was published in GLQ: A Journal of Lesbian and Gay
Studies, in August, 2004.
2. Safire, William. "Flagellum dei: Justice Scalia
on the fused participle." New York Times Magazine. New York: Oct 19, 2003. pg. 22, 1 pg.