TEXT :: The Supreme Court ruled in Lawrence v. Texas that states could not constitutionally criminalize private oral or anal sex between consenting adults. How far does the decision sweep? Is it limited to its facts, with no broader implications for constitutional law, as the Eleventh Circuit recently held? Or does Lawrence entail a massive shift, not only protecting any and all private sexual activities, but also writing the entire “homosexual agenda” into the Constitution, as Justice Scalia charged in dissent? Both of these extreme reactions can be logically and responsibly argued from the majority and concurring opinions delivered by Justices Kennedy and O’Connor, respectively. But few constitutional scholars think the narrowest or the broadest reading of Lawrence is correct. Its charged reasoning cannot be limited to the sodomy context alone, but neither does it entail same-sex marriage.
One cannot interpret or apply Lawrence without situating it in history-not just the history of judicial review of morals legislation, as Suzanne Goldberg has done; or the history of equal protection doctrine, as Nan Hunter and Pam Karlan have done; or the history of privacy rights litigation, as Larry Tribe has done; or the history of the lesbian and gay social movement, as Miranda Oshige McGowan has done; or the history of what transpired the night of Lawrence and Garner’s arrest, as Dale Carpenter has done, but also the history of traditionalist and religious responses to the lesbian and gay rights movement. What I call the “traditional family values” (TFV) countermovement created a constitutional theory that has its origins in the Save Our Children campaign in Dade County, Florida. Save Our Children synthesized a new kind of anti-gay politics and energized a vigorous, new identity-based social movement. The new politics was both aggressively negative, invoking themes of disgust and contagion, as well as surprisingly positive, re-aligning Protestants and Catholics, blacks and whites in a new identity arrayed around marriage and family. The Save Our Children campaign also was an example of popular constitutionalism, for it offered a vision of the Constitution that allowed the state to exclude and suppress people (homosexuals) who flaunted their disgusting practices and threatened to pollute the body politick. Not all traditionalists subscribed to its tenets, but almost none disagreed publicly.
This Constitution of (Anti-Homosexual) Disgust and Contagion had a surprising degree of support within the federal judiciary. Led by the Chief Justice of the United States Supreme Court, prominent Republican jurists endorsed that Constitution, while others acquiesced in it. During the Burger Court era (1969-86), federal judges rarely interfered with traditionalist efforts to censor, imprison, or exclude homosexuals because of their disgusting conduct and their contagious immorality. The Supreme Court and the D.C. Circuit interpreted the First Amendment to allow suppression and censorship of contagious homosexuals, the Due Process Clause (the home of the right to privacy) to allow the state to make disgusting homosexual sodomy a crime, and the Equal Protection Clause to allow virtually any state discrimination against contagious homosexuals or disgusting homosexual sodomites. The Constitution of Anti-Homosexual Disgust and Contagion was one that tolerated or encouraged the closet as a condition for homosexual citizenship in this country. Ironically, it fell to the Rehnquist Court to set constitutional limits on this body politics, in large part for pragmatic reasons appealing to Republican centrists. The Texas sodomy case, as well as the Boston parade case and the Colorado initiative case, represent the Court’s affirmation that the core libertarian, free speech, and equality principles of the Constitution apply to lesbians, gay men, and bisexuals and sometimes protect them against a politics that presents them as people whose disgusting features represent a contagious threat to others and to society.
But in setting some limits, the Court has by no means rejected the general idea that the Constitution at least tolerates a body politics that trades on appeals to disgust and contagion. The continuing legitimacy of such a politics has serious consequences for women seeking abortions, people with disabilities, lesbians, gay men, and transgendered people in the United States. Specifically, body politics helps us understand why the Supreme Court is and will remain reluctant to recognize new constitutional rights for these minorities, how the state can continue to justify discrimination against these minorities, and how traditionalists are winning new constitutional rights of their own. The ongoing culture conflicts between traditionalists and these minorities are certain to have destabilizing effects on constitutional law, creating a passive-aggressive First Amendment, a privacy right with unstable public-private borders, and an Equal Protection Clause that protects only occasionally and always unequally.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital