Sexual Injustice: Supreme Court Decisions from Griswold to Roe

By Marc Stein | Go to book overview

3 :
Liberalization’s Lawyers

The Supreme Court can be criticized or celebrated for its doctrine of heteronormative supremacy, but to understand how the justices came to validate the doctrine it is important to recognize that they did not invent it on their own. Some scholars adopt biographical or macrohistorical methods to interpret the Court’s decisions. This chapter and the next two are microhistorical. They concentrate on the most direct and immediate influences on the Court: the strategies and arguments used by the activists and advocates who worked on these cases.

Did the litigants and lawyers who were victorious in Griswold, Fanny Hill, Loving, Eisenstadt, and Roe encourage the justices to privilege heteronormative sexual expression or did they endorse a more egalitarian doctrine? The second possibility is tempting for those who support the outcomes of these cases and those who admire these reformers. This chapter resists that temptation, arguing instead that liberals and leftists helped the Court develop its doctrine of sexual inequality. Over and over again, they told the justices that rulings in their favor would not necessarily disturb heteronormative laws.

In reaching this conclusion, this chapter does not criticize the political wisdom or legal effectiveness of these reformers. They were working within a legal system that encourages cautious and conservative argumentation. It is difficult to convince the Court to overturn laws and practices, and these advocates succeeded in part because they assured the justices that their arguments were respectful of the Constitution, consistent with legal precedents, and compatible with the tenets of heteronormative supremacy. Tactically, it may have made sense to condemn nonmarital sex and reproduction. Strategically, it may have been smart to select cases and develop arguments that deferred to the prevailing politics of respectability. This chapter criticizes these advocates for using arguments that undermined sexual freedom and equality, but it does so with a realistic, perhaps cynical, acknowledgment that doing otherwise would have reduced their chances of winning important victories.

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