Last Thursday, by a 6-3 vote in the case of Lawrence and Garner v. Texas, the United States Supreme Court struck down a Texas sodomy law aimed solely at homosexuals. By a 5-4 vote, the court also overturned its notorious 1986 ruling in Bowers v. Hardwick, which endorsed a Georgia state law used to prosecute a gay man for having consensual sex with another man in the privacy of his own bedroom. In the short term, last week’s ruling means that the 13 states with sodomy laws on the books must now stop enforcing them. But the long-term impact of Lawrence, which found that gay men and lesbians have a fundamental right to privacy, won’t truly be felt for years. Here are three takes on last week’s ruling — a prediction of its meaning for full marital equality for gay men and lesbians, an observation about queer theory’s impact on the ruling, and a celebration of the ruling’s marriage of justice to law.

REVISITING PAST INJUSTICES

"The law and justice are barely cousins," noted Marlon Brando, playing South African anti-apartheid lawyer Ian McKenzie in 1989’s A Dry White Season, adding, "And most of the time they aren’t even on speaking terms." Well, law and justice are getting along much better these days thanks to last week’s Supreme Court decision in Lawrence v. Texas. With this ruling, Matthew Limon, a 20-year-old gay, mentally disabled teenager, may finally be freed from the Kansas prison where he’s been incarcerated since 2000. His crime? Consensual oral sex at the age of 18 with a 14-year-old teen (see "The Other Matthew," News and Features, February 20).

In February 2000, the Kansas Court of Appeals gave Limon the harshest possible sentence — 17 years and two months — for violating the state’s sodomy law. Not only was the sodomy law aimed solely at homosexuals, but the state’s Romeo-and-Juliet law — which drastically reduces penalties for sexual acts committed by people between the ages of 14 and 19 — specifically excludes gay people. If Limon’s partner had been female, he would have been sentenced to less than a year in jail — if he had received any prison time at all.

Limon’s lawyers had appealed his sentence to the US Supreme Court. On Friday, the court vacated the Kansas court’s decision and ordered it to reconsider Limon’s case in light of the fact that sodomy is no longer a crime in this country. In upholding Limon’s conviction, the Kansas court had cited 1986’s Bowers v. Hardwick, which held that homosexuals do not have a right to privacy. Of course, the Supreme Court last week overturned Bowers.

The remanding of Limon’s case was the first of possibly thousands of legal actions that could result from the Lawrence decision. Because the Bowers precedent was used to discriminate against gay men and lesbians in a wide range of cases ranging from child custody to housing to job discrimination, the volume of appeals is expected to be high. Just last Friday, Jefferson County, Missouri, prosecuting attorney Bob Wilkins dropped charges of sexual misconduct against six men who were arrested during a raid on an X-rated-video store.

Of course, as good as this news is, much damage has already been done. Limon has spent more than two years in prison, and several of the men involved in the Jefferson Country raid lost their jobs or moved from town when the police and the local media made their names public. Still, any movement to reconcile law with justice is a move in the right direction.

— Michael Bronski

NOT SO FAST ON THE GAY-MARRIAGE FRONT

To paraphrase an old Broadway musical ditty, sex and marriage go together like a horse and carriage. But do they, when we’re talking about the implications of the Supreme Court’s decision in Lawrence v. Texas? Some observers suspect that the ruling will lead to the legalization of marriage between same-sex couples. On Monday, New York Times columnist William Safire wrote: "Of more immediate concern to traditionalists is the dramatic warning issued from the Supreme Court bench by dissenting Justice Antonin Scalia. He predicted that this legal triumph for gays would lead to the next big anti-discrimination item on the homosexual agenda: legal sanction of the marriage of two people of the same sex." Indeed, Scalia delivered hope for gay men and lesbians — and a wake-up call for social conservatives — when he warned in his panicked dissenting screed that the majority’s action was an assault on "laws based on moral choices" and hence called into question the future of "[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." (US Senator Rick Santorum got blasted this past April for his infamous remarks comparing sodomy with bestiality, but Scalia will get away with it — just another benefit of life tenure.)

Wholly aside from the question of what cave Scalia has been living in — when was the last prosecution for masturbation? — one obviously does take seriously the prediction of a Supreme Court justice (he was joined by Chief Justice William Rehnquist and Associate Justice Clarence Thomas) as to the implications of an opinion endorsed by a healthy six-justice majority. The majority decided the sodomy case not on narrow "equal protection" grounds, but on the "due process" grounds that "[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." In other words, the majority based its decision on broad civil-liberties grounds, under which a state cannot outlaw sodomy — whether heterosexual or homosexual — since the state has no place in the bedroom, period. The court thus engaged in a legal analysis not of equality, but of fundamental human rights.

In doing so, the majority performed a classic exercise in the protection of negative liberties, which are protected freedoms with which the government may not interfere. The rights spelled out in the First Amendment are such liberties; free speech, for example, is an inherent right, and the government may not take it away. Sodomy between two men now belongs in that category. Indeed, the opinion’s author, Justice Anthony Kennedy, specifically linked the right of sexual intimacy with other liberties on which the government may not encroach, including "thought, belief, [and] expression."

It will be interesting to see how the courts respond to ongoing litigation — and lawsuits that have yet to be filed — seeking full marital equality for same-sex couples in light of the Lawrence decision. Marriage, of course, falls into a legally distinct category from speech and, we now learn, from sex. Rather than prohibiting conduct, the state, when it issues a marriage certificate, confers a positive benefit. There’s little doubt, as Scalia warned in his dissent, that Lawrence will help the plaintiffs in these cases. Now opponents of marriage rights for same-sex couples will no longer be able to argue that it would be wrong to marry a couple who would, by definition, be engaging in criminal activity. But the Lawrence decision hardly assures that the right to gay marriage will be won in the courts, where, ironically, legal arguments in favor of full marital equality for same-sex couples will most likely have to rely on the narrower equal-protection arguments that the Lawrence majority eschewed in favor of a broader, fundamental-rights analysis. Meanwhile, the battle for legal recognition of same-sex marriage will, in many states, have to be fought in the political arena of local legislatures, where the only court that matters is the court of public opinion.

— Harvey Silverglate

QUEER THEORY FINALLY GETS SOME RESPECT

It’s nice to see the staid US Supreme Court keeping up with breakthroughs in the academy — as it did with the reasoning in its landmark ruling last week in Lawrence v. Texas decriminalizing sodomy. But first, some background: one of the most frequent complaints made against postmodern theory — and especially its irascible offspring, queer theory — is that it consists of nothing more than intellectual acrobatics that have little to do with the real world. Take, for instance, the concept of sexual identity. Queer theorists believe that a sexual identity cannot exist without its being specifically named as such. So while there’s always been plenty of same-sex hanky-panky, from Plato’s classrooms in ancient Greece to gay bars today, queer theorists would say that until the word "homosexual" was coined in 1869 by German legal reformer Karl Maria Kertbeny, the modern concept of the "homosexual" didn’t exist. It’s a point that many general readers and activists consider, well, a little arcane.

Not too arcane, though, for the nation’s highest court. Last week’s ruling in Lawrence overturned the court’s findings in 1986’s Bowers v. Hardwick. Part of the court’s reasoning in Bowers, in which it found that the state could arrest someone for having consensual sex with another person of the same gender, was that prohibitions against homosexual sex had "ancient roots." Indeed, Justice Byron White wrote in the majority opinion for Bowers that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights." Sure, there were sodomy laws in the late 18th century, the queer theorist would agree, but there was no category known as "homosexual." That term, after all, wasn’t invented until 1869 — so there couldn’t have been any laws whatsoever specifically directed against "homosexuals" at that point in time. Yeah, well, whatever. As the saying goes, "tell it to the judge."

Well, that’s exactly what attorneys for the Lambda Legal Defense and Education Fund did when they argued Lawrence before the court. And what do you know? The judges listened. Justice Anthony Kennedy’s majority opinion is quite explicit: "At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.... The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century." Kennedy then cites two groundbreaking works of queer scholarship to bolster his point: John D’Emilio and Estelle Freedman’s 1989 Intimate Matters: A History of Sexuality in America (University of Chicago) and Jonathan Ned Katz’s 1995 The Invention of Heterosexuality (Dutton).

This is, no doubt, the first time that queer theory has been cited in a Supreme Court ruling. It’s great that it fares as well in the courtroom as it does in the classroom. And it’s equally gratifying to see an old dog like the Supreme Court learning some new intellectual tricks.

— Michael Bronski