On June 30, 1986, the US Supreme Court handed down its decision in Bowers v. Hardwick, a case about sodomy laws. For the majority, Justice Byron White (known since college, obscurely, as “Whizzer”) held that nothing in the Constitution endowed ”a fundamental right upon homosexuals to engage in sodomy.”
That was a Monday. Days later, the nation headed into the Fourth of July holiday, celebrating independence and all that. A big hootenanny around the hundredth anniversary of the Statue of Liberty intensified the revels. It was “Liberty Weekend,” with whizzing fireworks vaulting the huddling Hudson and patriotic paeans to immigrants and tired and poor; Ronald Reagan — whose paralytic rictus hung above the whole era like a gargoyle grinning over a depleted Paris — intoned, unveiling the renovated statue, that “our work can never be truly done until every man, woman, and child shares in our gift, in our hope, and stands with us in the light of liberty.” (He promptly bestowed a Medal of Liberty on Henry Kissinger beneath the Lady’s torch, a reminder that those who don’t share our freedom can be freely bombed until dead.) I couldn’t stand the ironies. A gay friend and I spent the weekend getting massively drunk in a Cambridge apartment, throwing things at the TV screen whenever Reagan’s red-death mask appeared. (The president, mind you, had refused even to mention the AIDS epidemic until the year before.) I remember large brown blotches from spilled vodka-and-coke staining the white carpet; if I saw them now, I’d scream “Santorum“! It was a terrible time in a terrible year in a terrible decade, and how little one can forget.
Just under seventeen years later, the Supreme Court overruled itself. That evening I went down to Sheridan Square, the site of Stonewall, where queers had gathered in small numbers for the congratulatory festivities. The celebrations were more muted than the mourning had been a generation earlier. Perhaps too many had died. Or perhaps gays and lesbians had learned in the interim what so many have learned from necessity before: that it is possible, after all, to live without your country loving you. After such knowledge, what forgiveness?
Still, Lawrence v Texas, which struck down Bowers, deserves much more than such a sigh. It’s one of the court’s historic decisions, and “one of the great success stories of public interest law,” as David Cole calls it. It now has, fittingly, a history of its own: Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v Texas has gotten stellar reviews this year, from the New Yorker, the New York Review of Books, and the New York Times. That so many praises come from New York must confirm what all righteous Texans suppose: that the whole thing was a conspiracy by my perverse, miscegenating, Jew-infested metropolis, which envied Lone Star purity and was just waiting to pounce. Carpenter, I hasten to add, teaches in Minnesota.
I haven’t read Carpenter’s book yet. I will. I have read what is more or less a companion volume: William Eskridge’s Dishonorable Passions: Sodomy Laws in America, 1861-2003. It’s an estimable book. Here, though, is what strikes me: both Carpenter’s and Eskridge’s politics are well known. They’re both conservative libertarians. (Indeed, Eskridge’s volume grew partly from an amicus brief he drafted for the libertarian Cato Institute in Lawrence v Texas.) So the two arguably most influential US histories of sodomy laws have been written from the libertarian right. I have no interest in condemning them for their politics here; if I only read books by authors I wholeheartedly agree with, my shelves would be much less full. It is, however, interesting. What’s going on here?
There is, of course, a powerful purely libertarian case against sodomy laws. “There’s no place for the state in the bedrooms of the nation,” a young Pierre Trudeau famously said, in scrapping Canada’s comparable legislation. Such a sentence could be every libertarian’s screensaver — although they have long lists of other areas where the state should not snoop; just look at any of Ron Paul’s campaign literature. Three major national court decisions about sodomy laws have had wide influence in the last fifteen years: South Africa’s in 1998, Lawrence in 2003, and India’s in 2009. All three cited privacy, and its confluence with liberty, as a core principle contravened by the laws and rendering them odious. All three, though, drew upon other principles as well: equality and dignity are explicit grounds in the South African decision, and in different terms run through Justice Kennedy’s Lawrence language as well as Justice Shah’s in Delhi. These are values less easy to constrain within a libertarian mold. Equality notoriously demands active government intervention in a range of situations; dignity is tied to the state’s power to accord or withhold legal recognition and substantive rights. The exclusively libertarian account of why sodomy laws are wrong only gets at part of the normative case against them. Yet it seems to be bidding for hegemony here in the US.
Libertarianism, naturally, shares with most other terms in politics a tendency to mean different things in different private dictionaries. Libertarian rhetoric – broadly, exalting the value of personal autonomy against government interference — has a protean appeal, and is increasingly heard everywhere. It’s enjoyed a renaissance on the US left since 2001, against the security-inspired swelling of the surveillance state. It has revived on the right in the last four years, with growing conservative unease about the (first Bush, then Obama) bailouts, spending, and market interventions brought to bear against the financial crisis. Sales of sexy propagandist Ayn Rand, that Zhdanovite in a pageboy haircut, doubled from 2008-2010. “We are witnessing a conservative libertarian comeback,” one pundit informs us.
It’s an oppositional advance, a response to all manners of active-state liberalism … It’s a pervasive feeling of invasiveness. It’s an enduring conclusion among many voters–independent and conservative, working and middle class alike–that big government costs in taxes significantly more than it offers them personally.
Just the atmosphere for a libertarian approach to sex to flourish, you might think. But the pundit adds: “There is no wide-ranging call for government to withdraw from social issues however. A rebirth of traditional libertarianism this is not. It’s a more limited libertarianism that it is on the march.” Back in your closets, camp followers!
Eskridge’s book is, I think, in part an effort to push at the envelope of this “limited libertarianism” and get sexuality under its cover: to prod conservatives into taking the logic of their acquired passion for pure liberty seriously. In his version, this means, perhaps primarily, prodding gays themselves. He writes that “Lawrence should also be understood as a challenge for gay people. Recalling an old-fashioned conception of citizenship as entailing obligations as well as freedoms, Lawrence should stir LGBT people to commit themselves to families, communities, and institutions (including religious ones) from which they have been alienated.”
This is a grand non sequitur, on the face of it. Goodbye, frying pan, hello fire! There is no reason why lifting one form of repression should rouse you to reaffiliate yourself with institutions that have, been, for most LGBT people, the source of other forms. Changing those institutions might be a plausible program, but that doesn’t necessarily oblige you to join them. Sodomy laws weren’t brought down from inside the prison cell. Yet Eskridge’s reasoning is worth following. “Philosophical liberals, such as John Rawls and Richard Posner,” he says, “have tended to underestimate the importance of family and community values to the government’s role in structuring legal rights and responsibilities.” OK, so in unlibertarian fashion we grant the government such a role. But:
[A] new generation of gay or gay-friendly thinkers — such as the law professors Carlos Ball and Chai Feldblum, the philosophers Stephen Macedo and Michael Sandel, the anthropologist Kath Winton, and journalists like Bruce Bawer and Jonathan Rauch — maintain that gay people ought to understand themselves as family members and actors interacting with communities. This is strategically important. To the extent that gay people are perceived this way by mainstream Americans, they will be less vulnerable to the politics of disgust and contagion. But it also normatively important. … [K]ey liberal thinkers have argued that sexual freedom and gender equality require community … Theirs was a different kind of community from that envisioned by traditionalists (husband-wife marriages with children), and that is the challenge Lawrence and the same-sex marriage movement pose to LGBT Americans: What kind of community, what understanding of family, do you stand for? (pp. 382-83)
“Committed,” Eskridge makes clear, is his answer. Gays need communities and families that ground them, bind them through fixed relationships to a lasting definition of the self. And you can see not so much Eskridge’s logic at work here, as his political agenda. Conservatives can be reconciled to recognizing gays’ rights as long as there is some other structure in place, on hand, to regulate the luftmenschen‘s lives. These structures are themselves exempt from state regulation in much the same way that striking down sodomy laws leaves the bedroom walls impermeable. “The state also cannot invade traditionalists’ private associations and clubs to impose gay-friendly policies,” Eskridge writes, approving of the Supreme Court’s decision (in Boy Scouts v Dale, 2000) that such a group may not be compelled “to accept members it does not desire.” But conversely, once gays do get in, they will be subject to, and their identities informed by, the internal strictures of the group: the luftmensch ballasted and brought to earth at last!
Of course everyone has networks of affiliation and belonging, unless you happen to be Kaspar Hauser. What’s at stake is how much a person can choose and hence constitute these, or how much they are permitted to constitute her. Ultimately Eskridge suggests a vision that is far more fully conservative than libertarian. The state leaves the individual alone — that’s the main libertarian side of it. But the state does so in confidence that other forces can fill the gap. The state “structur[es] legal rights and responsibilities,” but only on the pattern adumbrated by those other forces. Indeed there is no gap, because a civil society where every space is taken up by closed groups, community structures, and families leaves little room to move; occupying the self like the air you breathe, it’s fully capable of shaping and restraining potential members so that they belong.
Clearly this is nothing new. It’s more or less the social policy that Reagan and Thatcher carried forward — and neither was exactly libertarian. Both understood that the capitalist market they unleashed with the right hand would corrode not just community values but all existing structures of belonging; everything solid would start melting into air. Hence it was vital, with the left hand, to strengthen family, community, and old-fashioned forms of social solidarity, not just in ideology but as as far as possible in law. They grasped rather better than Eskridge, though, that a hands-off policy by government — the libertarian ideal — wouldn’t be enough. Those values wouldn’t just maintain themselves. The closed groups would dissolve without state encouragement and support. Libertarian economics required authoritarian social enforcement.
In other words, Eskridge rather overestimates the libertarian, as opposed to traditionally conservative, implications of his argument. Still, his case has had its success. You can see the traces of Eskridge’s — and other gay conservatives’ — hopeful attempt at integration in the political causes that have been by far the most motivational among US gays.
Bruce Bawer, the gay journalist, is a dreadful fellow. Some years back he moved to Norway, and since then has devoted himself to high-strung, racist screeds against Muslims, Africans, and other inferior invaders of the Land of the Blond. (To his public embarrassment, mass-murderer Anders Brevik mentioned Bawer approvingly in one of his own private prologomena to morals.) Back when he was somewhat respectable, though, he published an anthology, “Beyond Queer: Challenging Gay Left Orthodoxy.” Its pages laid out a program for gay conservatives, and from a distance of sixteen years, the consistency is amazing. The unifying call is for gays to attach themselves to conservative institutions, and to do so in a way that inhibits rather than expands the state’s involvement. Both strategies will make them a better brand of minority, more reliable, less whiny, more deserving of public trust. Thus Andrew Sullivan on don’t-ask-don’t-tell:
[I]nstead of seeking access, as other minorities have done, gays in the military are simply demanding recognition. They start not from the premise of suppliance, but of success, of proven ability and prowess in battle, of exemplary conduct and ability. This is a new kind of minority politics. It is less a matter of complaint than pride; less about subversion than about the desire to contribute equally. (p. 81)
But the showroom issue for this inclination is, of course, marriage. “For taming males, marriage is unmatched,” Jonathan Rauch writes in the book (p. 307). Moreover, if — as Rauch contends — gays are not “an oppressed people seeking redemption through political action,” but “an ostracized people seeking redemption through personal action” (p. 126) marriage is a perfect way to prove oneself. It doesn’t need active government intervention, the kind that anti-discrimination laws mandate (most contributors seem deeply biased against those protections: they stand for the “victim model” that only bad minorities pursue). It merely requires the state to stand back and let it be. Again, recognition rather than action is what the good minorities demand.
Now, historically, marriage has done rather more than tame males: think shrews. And of course, for centuries domestic violence, marital rape, and other offenses in the home went unnoticed and unpunished, because the law stood back and let them be; it presumed the sanctity of marriage to exclude its ministrations. Lawyers tend to say that Griswold v Connecticut – the 1965 case where the Supreme Court held that married couples could use contraception — established a “right to privacy” in American law, emanating outward from the marriage bed. No. A right to marital privacy enshrouded domestic violence for centuries, just as it protected sex with an unconsenting wife. Where the state acted was to complicate people getting out (or getting pleasure outside) of marriage: by criminalizing adultery and prostitution, for instance, or by restricting divorce. It’s doubtful that many LGBT people would want to be integrated into the marriage complex if it were still that “libertarian” nexus of internal control: a Hunger Games arena where participants were tamed while the state stood by. There has certainly been some shift in how the state regulates marriage — some displacement of the arbitrary personal regulation the institution once stood for, by the rule of external law. US police only rarely enforce bans on adultery, for instance, while domestic violence and marital rape are now, at least formally, crimes. Still, the history of “privacy” within marriage reminds one that the legal protection or restriction of relationships is an intricate and deceptive field, not terribly susceptible to libertarian simplifications. A conservative history that tries to condemn sodomy laws while elevating marriage is likely to run into contradictions.
Which brings me back to the question I headlined: what would a leftist history of sodomy laws look like? The US advocacy to get rid of sodomy laws started, for the most part, on the left back in the 1950s and 1960s. If we reclaimed that history, how might it read?
I have some thoughts, but I leave the question open. Leftists and rightists are welcome to use the comments field below. (It’s underused here. I know you read this thing, from the site stats; now talk back.) The question’s an important one, because it has to do with who steers our collective narrative, and, on that basis, where it wends from here. So start thinking.