Sexual Injustice: Supreme Court Decisions from Griswold to Roe

By Marc Stein | Go to book overview

Epilogue

In eight momentous years from 1965 to 1973, the Supreme Court developed a doctrine of heteronormative supremacy. The justices legitimized laws that protected and promoted favored forms of sexual expression, condoned discrimination against other types of sex, and permitted punishment for those who violated sexual norms. In decisions concerning birth control, obscenity, homosexuality, interracial marriage, and abortion, the Court created a constitutional framework for the regulation of sex and the production of sexuality. Notwithstanding minor modifications, that framework survived for the next thirty years. Only one justice from the Griswold to Roe era was still serving three decades later, but the doctrine remained firmly in place until the Court overturned state sodomy laws in Lawrence (2003). A court of six Democratic and three Republican appointees in 1965 became a court of either seven or eight Republican and one or two Democratic appointees for decades after 1975, but partisan shifts did not yield significant changes in the doctrine. When the legal regulation of sex changed between 1973 and 2003, the Court played a limited role. More often than not, legal change occurred at subnational levels as states and municipalities repealed, modified, and invalidated laws against adultery, cohabitation, fornication, sodomy, and other sexual offenses. Subnational jurisdictions were also the primary arenas for the enactment of laws against sexual discrimination. The legal regulation of sex changed in many parts of the country, but the Court’s doctrine meant that federal, state, and local governments could continue to deny sexual freedom and equality, which they did.

When the Court revised the doctrine in Lawrence, it rewrote the history of the rulings of the late 1960s and early 1970s. Instead of acknowledging the sexually conservative aspects of Griswold, Fanny Hill, Boutilier, Loving, Eisenstadt, and Roe and presenting Lawrence as a bold new departure, the justices portrayed Lawrence as fully consistent with the precedents. This was certainly not the first time the Court shifted direction without acknowledging that it was doing so. In this case, the activists, advocates, journalists, judges, and scholars who began representing the Court’s rulings as sexually libertarian

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