C'MON, HOW LONG AGO COULD LEVITICUS HAVE BEEN WRITTEN?

What Gay Studies Taught the Court (Rick Perlstein, July 13, 2003, Washington Post)

Some court watchers have called Lawrence the most momentous civil rights decision since Brown v. Board of Education outlawed school segregation in 1954. What hasn't been explained is the basis for Kennedy's landmark ruling. What has changed since Bowers was decided in 1986? The answer: nothing less than the historical understanding of laws regarding sexual conduct.

In the Bowers case, Justice Byron R. White wrote simply and assuredly that since "Proscriptions against [homosexual] conduct have ancient roots," an attempt to claim that such conduct was protected by the Constitution was "at best, facetious." [...]

What happened to make assumptions that were obvious to one judicial generation so obviously wrong to the next? Credit the scholarly efforts of a group of history professors, toiling away in the nascent and controversial field of gay studies.

A careful reading of the majority opinion shows that it relied heavily on three amicus curiae ("friend of the court") briefs. These briefs are arguments submitted by parties interested in the case detailing why the justices should decide it their way. Many cases attract such briefs, which often play little role in the outcome. But these three -- filed by the American Civil Liberties Union, the Cato Institute and a coalition of history professors -- are singled out by name in the majority opinion. Skip these briefs and you've skipped the essence of what is remarkable about Kennedy's ruling.

To follow the briefs' argument, the best thing to do is to quote directly from Kennedy's opinion. "At the outset," Kennedy writes, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter."

That's a stunning repudiation of what White, Burger and the rest of the majority stated so matter-of-factly in Bowers. On what did Kennedy
base that statement? On the historical research outlined by George Chauncey of the University of Chicago, and nine other professors in the historians' brief.

Though we disagree profoundly with his politics, we are huge Rick Perlstein fans here at Brothers Judd. His book, Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, is one of the very best on the modern conservative movement. It's fair, even generous, to those with whose politics he disagrees--a fairly rare thing to see in these hyper-partisan days. But this column--like the majority opinion and like the briefs--is simply wrong-headed.

The game is given up in the cited language of Justice Kennedy that: "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter." The implicit concession here is that there is a longstanding history of laws directed at a wide variety of sexual conducts. Granted this concession it is obviously facetious to argue that all (or any) sexual conduct is protected by the Constitution. Justice Kennedy and Mr. Perlstein would appear to have misunderstood the question presented to the Court, which is not whether homosexual sodomy has historically been singled out for particular prohibition, but whether sodomy has traditionally been a fit subject of State laws. It obviously has.

What's remarkable about the amicus briefs and the Court's finding is something altogether different: that contrary to decades of gay rights rhetoric, persecution of homosexuals has been rather mild. The fact that anti-sodomy laws weren't targeted specifically at homosexuals and that prosecutions under them have been relatively rare suggests a society that is, and has been, more or less willing to allow homosexual conduct to go on behind closed doors:

[T]hroughout American history, the authorities have rarely enforced statutes prohibiting sodomy, however defined. Even in periods when enforcement increased, it was rare for people to be prosecuted for consensual sexual relations conducted in private, even when the parties were of the same sex. Indeed, records of only about twenty prosecutions and four or five executions have surfaced for the entire colonial period. Even in the New England colonies, whose leaders denounced “sodomy” with far greater regularity and severity than did other colonial leaders and where the offense carried severe sanctions, it was rarely prosecuted. The trial of Nicholas Sension, a married man living in Westhersfield, Connecticut, in 1677, revealed that he had been widely known for soliciting sexual contacts with the town’s men and youth for almost forty years but remained widely liked. Likewise, a Baptist minister in New London, Connecticut, was temporarily suspended from the pulpit in 1757 because of his repeatedly soliciting sex with men, but the congregation voted to restore him to the ministry after he publicly repented. They understood his sexual transgressions to be a form of sinful behavior in which anyone could engage and from which anyone could repent, not as a sin worthy of death or the condition of a particular class of people.

The relative indifference of the public and the authorities to the crime of sodomy continued in the first century of independence. For instance, only twenty-two men were indicted for sodomy in New York City in the nearly eight decades from 1796 to 1873. The number of sodomy prosecutions increased sharply in the last two decades of the nineteenth century and in the twentieth century. This was made possible by the decision of many States to criminalize oral intercourse for the first time. But it resulted in large measure from the pressure applied on district attorneys by privately organized and usually religiously inspired anti-vice societies, whose leaders feared that the growing size and complexity of cities had loosened the constraints on sexual conduct and increased the vulnerability of youth and the disadvantaged. The increase in sodomy prosecutions was only one aspect of a general escalation in the policing of sexual activity, which also included stepped-up campaigns against prostitution, venereal disease, and contraception use. Although in this context a growing number of sodomy prosecutions involved adult males who had engaged in consensual relations, most such relations had taken place in semi-public spaces rather than in the privacy of the home, and the great majority of cases continued to involve coercion and/or minor boys or girls.

That so few states retain their anti-sodomy laws indicates that attitudes towards homosexuality are becoming even more permissive and that left to the electorate most of the rest of these prohibitions would likely whither away. That arrest and prosecution occurs so seldom even where the laws remain would lead one to believe that such laws express the community's morality but are not meant to be wielded against homosexuals in any systematic way. Whatever the merits of legalizing homosexual conduct, and there are certainly some, the Court based its decision on falsehood and rendered an anti-Constitutional ruling, one that current societal trends made quite unnecessary. Such usurpations of our democratic prerogatives are always a bad thing, no matter what good purpose they may serve. The resort to sophistry in order to reach a basis for this judicial coup merely makes the decision all the more shameful.


MORE:
-LAWRENCE et al. v. TEXAS (Find Law)
-The Historians' Case Against Gay Discrimination: On June 26, 2003 the Supreme Court struck downall laws that prohibit sex between consenting gay adults. Below is the brief filed by historians in the case, Lawrence v. Texas. (History News Network)

In colonial America, regulation of non-procreative sexual practices - regulation that carried harsh penalties but was rarely enforced - stemmed from Christian religious teachings and reflected the need for procreative sex to increase the population. Colonial sexual regulation includedsuch non-procreative acts as masturbation, and sodomy laws applied equally to male-male, male-female, and human-animal sexual activity. [...]

Proscriptive laws designed to suppress all forms of nonprocreative and non-marital sexual conduct existed through much of the last
millennium.

-A Few Good Men: Are there any conservatives who still believe that the gay-marriage battle can--or even should--be won? (Lee Bockhorn, 07/14/2003, Weekly Standard) Posted by Orrin Judd at July 15, 2003 2:44 PM