Academic journal article Harvard Law Review

Unfixing Lawrence

Academic journal article Harvard Law Review

Unfixing Lawrence

Article excerpt

--L'armoire etait sans clefs! ... Sans clefs la grande armoire

On regardait souvent sa porte brune et noire

Sans clefs! ... C'etait etrange!--On revait bien des fois

Aux mysteres dormant entre ses flancs de bois

Et l'on croyait ouir, au fond de la serrure

Beante, un bruit lointain, vague et joyeux murmure. (1)

I. INTRODUCTION: THE MOURNING AFTER LAWRENCE

Lawrence v. Texas (2) seemed to herald the dawn of a new era of tolerance for sexual minorities, (3) of government withdrawal from regulation of adult sexual conduct, (4) and even of the Supreme Court's substantive due process jurisprudence. (5) But as a number of state and lower federal courts began to read the opinion narrowly, (6) hope withered for many into frustration, wariness, and even despair. Just two years after the decision, it has already become de rigueur in scholarly and popular writing to reference wistfully what Lawrence might have been and to lament what it has become. (7)

For all the complaints about what Lawrence did not or cannot do, one consequence of the decision is indisputable: Lawrence struck down Texas's "Homosexual Conduct" law, thereby decriminalizing private consensual sodomy between adults. (8) In so doing, it overturned Bowers v. Hardwick, (9) declaring in no uncertain terms that "Bowers was not correct when it was decided, and it is not correct today." (10) Indeed, even more cautious observers readily acknowledge that Bowers is dead. (11) This Note proposes, though, that however dead Bowers may be, it persists not only to haunt current jurisprudence in areas of law affecting sexual minorities (12)--including Lawrence itself--but also to define and circumscribe advocacy on behalf of those whom Bowers marginalized.

Bowers did not merely uphold Georgia's antisodomy statute; it did so using a dismissive and demeaning rhetoric that had a deep and lasting impact on the individuals it interpellated. (13) As one commentator acknowledged, "I don't think about sex when I read Hardwick, and I don't think about what sex acts are at issue. I think how they hate me." (14) In Bowers, Justice White's majority opinion reduced respondent Michael Hardwick's privacy-based fundamental rights claim (15) to one involving only the "fundamental right [of] homosexuals to engage in sodomy." (16) Having thus narrowed the scope of the interests at stake, Justice White rejected the respondent's subsequently diminished claim as, "at best, facetious." (17) The hurt, frustration, and anger elicited by his contemptuous tone and message galvanized what Justice Scalia later disparaged as a "17-year crusade" (18) to undo the damage of the Bowers opinion. (19) Many thus seek in Lawrence confirmation of the demise of Bowers, insisting that the 2003 decision be read as erasing all vestiges of what the Court had done seventeen years earlier. (20)

So important is it to establish that Lawrence is not Bowers that scant attention is paid to what Lawrence is--that is, to what it actually says and how it actually works. Most commentators have interpreted Lawrence by reading against Bowers, rather than by reading--or, in literary parlance, reading with--Lawrence itself. In their eagerness to repudiate Bowers, liberal commentators often substitute a too-confident assessment of what Lawrence means or should mean for a more open inquiry that attends to the opinion's particularities, complexities, and contradictions. A significant share of left-minded scholarship thus manifests the desire not to read Lawrence too closely, lest the actual opinion end up not saying what has been imputed to it. But the fear of nuance may blind progressives to the real limitations and possibilities of the Court's decision, (21) and this willful blindness may in turn lead to false hopes, heightened frustration, and missed opportunities. This Note therefore resists the impulse to pin down Lawrence's meaning, replacing the oft-considered (and always dissatisfying) question "What does Lawrence mean? …

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