1073385

Reasoning about Sodomy: Act and Identity in and after Bowers v. Hardwick Author(s): Janet E.
Halley Source: Virginia Law Review, Vol. 79, No. 7, Symposium on Sexual Orientation and the Law (Oct., 1993), pp. 1721-1780 Published by: Virginia Law Review Stable URL: http://www.jstor.org/stable/1073385 . Accessed: 24/10/2013 12:08
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REASONING ABOUT SODOMY: ACT AND IDENTITY IN AND AFTER BOWERS v HARDWICK Janet E. Halley*
Heterosexuals don't practice sodomy....
-SenatorStrom Thurmond' DanielC. Richman2
THIS IS NOT A CASE ABOUT ONLY HOMOSEXUALS.... ALL SOR TS OF PEOPLE DO THIS KIND OF THING.
HE criminalization of sodomyis crucialto the generation and ofsexual-orientation ordering identities. statutes Sodomy generate at leastpartofthepersonhood ofanyone in whowishes to engage debates aboutwhether suchmeasures should be adopted, modified or repealed.By contributing to theterms on whichsexual-orientation identities maybe adoptedand maintained, sodomy statutes interfere in the conventions indirectly and practices of reasoning abouttheir ownpropriety. Theyfunction to maintain themselves.
* Associate Professor ofLaw, Stanford Law School. J.D.,Yale Law School,1988;Ph.D., UCLA, 1980;B.A., Princeton University, 1974. This Article includes revised passages from myessay, Bowers v. Hardwick in the Renaissance, in Queering theRenaissance (Jonathan Goldberg ed.,forthcoming 1993). I wantto thank colleagues Paul Brest, Jonathan Goldberg, RobertW. Gordon, ThomasC. Grey,Andrew Parker, Margaret JaneRadin,DeborahL. Rhode,William H. Simon, and Robert Weisberg for comments on these projects. I also want to thank symposium participants MaryAnneCase, AnneB. Goldstein, Morris Kaplan,and KendallThomas, notonly for their comments on this project butfor their work.In addition, I am pleasedto thankLaura Dickinsonfor her relentlessly rigorous contributions at the inception ofthis research; andKathleen Ansari, Andy Eisenberg, Lisa Hayden, Martha Kegel, Nicolai Ramsey, MelindaSarafa,and Iris Wildman forbibliographical assistance.Special thanks to Ruth Harlowof the ACLU's Lesbianand Gay RightsProject, and to Paul J. Denenfeld of theMichigan ACLU, forhelpin locating unpublished courtpapersand other documents. Research was funded bya bequest from theDorothy Redwine Estate. 1 Senators LoudlyDebateGay Ban,N.Y. Times, May 8, 1993,at A9. 2 Memorandum fromDaniel C. Richmanto Justice Thurgood Marshallon Bowersv. Hardwick, 478 U.S. 186(1986),quoted in NeilA. Lewis, RareGlimpses ofJudicial Chessand N.Y. Times, Poker, May 25, 1993, at Al, A8 (capitalization in original). Richman wrote this memorandum whileserving as Justice Marshall's law clerk.Id.
INTRODUCTION
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Sodomy statutes placecertain peopleat riskofsurveillance, arrest, indictment, conviction and incarceration, whiletheysimultaneously provide for Whatis certain other peoplespacesofrelative immunity. interesting and complicated is thatthe first about sodomystatutes groupis notexclusively thegroupof "homosexuals," and thesecond group is notexclusively thegroup Thisis because of"heterosexuals." sodomy, in theUnitedStates, is notonly as it has beencriminalized aboutidentities: ofthisis to resist it is also aboutacts. To think the obvious:we all tendto imagine is abouthomosexuals, thatsodomy butifwe think for a moment we recallthatmany resolute homosexuals never do anyactsthatcouldbe calledsodomy, whilemany resoluteheterosexuals are, wheresodomy avid recidivists. is concerned, The recollection is a gestalt switch: we have stopped about thinking as an indicator sodomy and regulator ofidentities, and haverecalled itsreference to acts. statutes in partbytheir Sodomy maintain themselves refequivocal erence to identities and/or acts. The duality ofthesodomy statutes sometimes an indexofidentity, sometimes an indexofacts-is a rhetoricalmechanism in the subordination of homosexual identity and the superordination of heterosexual identity. Designating homosexual identity as thepersonal manifestation ofsodomy confirms itssubordination. At thesametime, thewaysin which homosexual identity is notsodomy are subject to an organized forgetting. And heterosexual identity becomes superordinate not because it is absolutely immune, but becauseit is intermittently and provisionally immune from regulation under thesodomy statutes. This instability can be a source ofrhetorical and political power.For thedesignation "heterosexual,"theinstability of sodomy alongtheparallelregisters of act and identity generates a form ofself-interestedness thatis also a fragile and fearfully-to-be-maintained identity. in thisform Resisting power provides gaymen,lesbians, bisexuals, and their allieswitha political opportunity. We can form newalliancesalongtheregister ofacts. Fromthatvantage point theinstabilityofheterosexual identity can be exploited, and indeed, undermined from within. To be sure,adopting thisapproach requires thatlesbians,gaymen,and bisexuals placetheir identities as suchin abeyance at leastfrom timeto time.Thisis dangerous, butit maybe theonly waythatlesbians, gaymen, and bisexuals can gainsomekindofrhe-
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toricalleveragein a rhetorical system whose instability normally placesus in a doublebind. Beforelaunching on this argument, I offer two methodological points anda roadmap.First, to arguethat sodomy prohibitions shape heterosexual and homosexual identities, as I do, is to imply thatthose identities do not emergeunproblematically fromnatureor stably describe thepersons whobearthem.I wantto embrace thatimplicationexplicitly. In thisArticle I use theterms "homosexuality" and "homosexual"-andmoretendentiously, theterms "heterosexuality" and "heterosexual"-without any implication that theyaccurately describe anypersons living or dead. As I try to use them these here, terms describe rhetorical categories thathave real,material importancenotwithstanding their failure to provide adequatedescriptions ofanyone ofus. Sexual-orientation identities are,then, that facilities we use whenwe attempt to explain ourselves to ourselves, whenwe seekto situate in relation in relation ourselves to others to or others ourselves, and thuswhenwe seekto gainand wieldpower, including thepowerofpersuasion.3 Second,thisArticle does not pursuethe well-established inquiry into the relationship betweengenderand sexual orientation, and focuses instead on thedynamics peculiar to sexual-orientation identities. The former line of investigation has produced powerful social and political4 as well as legal5analyses arguing thatthe social and
3 This claimenters thedebatedescribed by Daniel R. Ortizon theside of constructivist accounts of homosexual and heterosexual identity. Daniel R. Ortiz,Creating Controversy: Essentialism/Constructivism and thePolitics ofGay Identity, 79 Va. L. Rev. 1833(1993). Of iftheidentities course, "homosexual" and "heterosexual" areto anyimportant extent socially constructed, theidentities "gay,""lesbian," "bisexual," and "queer"are too. The bestsourcebook fortheessentialism/constructivism debateis FormsofDesire:Sexual Orientation and theSocialConstructionist Controversy (EdwardSteined., 1990). 4 Perhaps theinaugural essayin thislineis Adrienne Rich,Compulsory Heterosexuality and Lesbian Existence, 5 Signs 631(1980). Fora thoughtful recent contribution from political theory, see SusanMoller Okin, SexualOrientation and theSocio-legal Construction ofGender (manuscript on file withtheVirginia Law ReviewAssociation). 5 See,e.g.,Sylvia A. Law,Homosexuality and theSocialMeaning ofGender, 1988Wis.L. Rev. 187,187(arguing that thelegalandcultural "disapprobation ofhomosexual behavior is a reaction to theviolation ofgender norms, rather thansimply scorn fortheviolation ofnorms ofsexualbehavior"). Occasionally, feminist analysis oflegalsanctions against homosexuality exhibits a disturbing male-homophobic drift. See, e.g.,SandraJ.Grove, Constitutionality of Minnesota's Sodomy Law, 2 Law & Inequality J.521,530-33 (1984) (drawing on thework of AndreaDworkin and Catherine MacKinnon to conclude that"[c]onsensual sexualcontact between male peersis, in a sense,an expression of thestatusquo of male power," so that
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legal interdiction of homosexuality producesgenderhierarchy by enforcing a rigiddistinction between the genders, and by requiring women to associate intimately with menand thusto be dependent on them. Kendall Thomas' accompanying commentary pursues a psychohistorical analysis alongthese lines, concluding thatthethreat to heterosexuality posedbyhomosexual sodomy is thethreat to masculinity posedby receptive anality (read:thefeminine).6 I do notdisagree withthisapproach, butI think it is onlypartof thepicture.Heterosexuality exceeds and thusdiffers from masculinity, just as homosexuality exceeds and differs from theso-called passive role in anal sex. Thoughtheyintersect, gender and sexuality exceedand differ from one another.As Andrew Parkernotesin a deft of therecent summary articulation ofsexuality or queerstudies as a bodyof workdistinct from thatdeveloped in women's, gender, and feminist studies, "a growing number ofcritics, 'male'and 'female' alike,no longer find gender theinevitable or evenappropriate optic through whichto explore'issuesof sexuality in general.' "' In an inaugurating essayforthe studyof sexuality, Gayle Rubininvoked MichelFoucault's conception ofsexuality as a system ofsocialpracticesand knowledge "concerned withthesensations ofthebody, the ofpleasures, quality and thenature ofimpressions,"8 and argued that
prosecutorial failure to enforce sodomy statute against consensual sex actsbetween menis a "legalsanction ofmalesexualprerogative"). Thereis no needto indulge in suchexcesses, however, to find justifications for an argument that sodomy statutes violate theconstitutional baron sexdiscrimination. The groundbreaking contribution is thatofAndrew Koppelman, Note,The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 Yale L.J. 145 (1988);see also Marc A. Fajer,Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men,46 U. MiamiL. Rev.511,607-50 (1992) (discussing biasand anti-gay sexualorientation discrimination as analogous to gender Cass R. Sunstein, discrimination); Homosexuality and the Constitution, in Laws & Nature:Shaping Sex, Preference and the Family (David Estlund & Martha Nussbaum eds.,forthcoming) (manuscript on file with the Virginia Law Review Association) (arguing that discrimination basedon sexual orientation is a species ofsex discrimination). 6 Kendall Thomas, The Eclipse ofReason:A Rhetorical Reading ofBowers v.Hardwick, 79 Va. L. Rev. 1805(1993). 7 Andrew Parker, Sensitive NewAge Guys, Lesbian & Gay Studies Newsletter, Mar. 1993, at 31, 32 (reviewing Engendering Men:The Question of Male Feminist Criticism (Joseph A. Boone& MichaelCaddeneds., 1990)). 8 1 Michel Foucault, The History ofSexuality 106(Robert Hurley trans., Pantheon Books 1978)(1976).
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the studyof sexuality so described shouldnot be equatedwiththe study of gender: I want tochallenge theassumption that feminism is orshould be the privileged siteofa theory of sexuality. Feminism is thetheory of gender oppression. To automatically that this makes it the assume ofsexual theory oppression istofail todistinguish on between gender, theonehand, anderotic desire, on theother.... ... Gender theoperation affects ofthesexual andthesexsystem, ual system hashadgender-specific Butalthough sex manifestations. andgender arerelated, form they arenot the andthey the same thing, basisoftwodistinct arenas ofsocial practice.9 Indeed,any assumption thathetero/homosexual dynamics must originate in,or ultimately produce, gender idenhierarchy or gender titygivesanalytic priority to heterosexuality, withits definitional on ofmaleandfemale, dependence theconcept and femofmasculine inine, as matching opposites.Eve Kosofky Sedgwick speculates that [i]t may be ... that a damaging biastoward heterosocial orheterosexistassumptions inheres unavoidably in thevery concept ofgender. This biaswould bebuilt into any gender-based analytic perspective to theextent that gender definition arenecessarily andgender identity anygender-based analysis must fronnecessarily be tothediacritical tier between different genders. Thisgives heterosocial andheterosexual relations a conceptual privilege ofincalculable consequence.10 Thatis to say,heterosexuality in gendermaybe inscribed as a norm based approaches. The sheer plausibility ofgender as thesource ofandexplanation for eroticdifferences makesit especially necessary to look at sexuality independently (thoughnot instead)." Sidestepping the pervasive explanatory power ofthatnorm requires an analysis ofsexuality that
9 GayleRubin,Thinking Sex: Notesfora RadicalTheory of thePolitics of Sexuality, in Pleasure and Danger:Exploring FemaleSexuality 267, 307-08(CaroleS. Vanceed., photo. reprint 1985)(1984). 10 Eve K. Sedgwick, Epistemology oftheCloset31 (1990). 11ValerieTraub, Desire and the Differences It Makes, in The Matterof Difference: MaterialistFeminist Criticismof Shakespeare81, 84 (Valerie Wayne ed., 1991) (recommending thatcultural historians "placesexuality at thecentre" ofanalysis, and "only after that"explore howit intersects with gender, race,ethnicity, and class)(emphasis added); see also Sedgwick, supranote 10, at 27-35(arguing thatexploration of the linksbetween
relational between genders ....
[T]heultimate definitional appealin
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is distinctively queer, in thesensethatitseeksto describe thepeculiar operations of sexual-orientation insofar as theyare not taxonomies articulated through gender.The present is suchan effort. Article PartI of thisArticle asserts thatsodomy statutes haveimportant effects on practices ofcivicreasoning aboutsexualorientation and,in particular, on thegeneration ofpublicpersonae forpeopleidentified as homosexual and forpeopleidentified as heterosexual. PartII proceeds to the cultural and legal assignment of meaning to sodomy itself, and seeksto exposetheincommensurable articulations of act and identity thatare managed by meansofsodomy laws. Onceact and identity arearticulated as distinct ofsod"meanings" omy,Part III analyzestheirrelationship to each other. I examine Bowers v.Hardwick,'2 theSupreme Courtdecision holding thatconstitutional privacy and substantive due process arenotviolated rights whena statecriminalizes whattheCourtwas pleasedto call "homosexualsodomy.""3 Hardwick provides an exemplary basisforreasoning about sodomybecause it generates an immobile, fixed,and vulnerable position forthe homosexual plaintiff, and a mobileand fluidpositionin whichpeople identified as heterosexual can seek immunity from thestigma ofthesodomy statutes. Becausethemajorityopinion in Hardwick, and Chief Justice Warren E. Burger's concurrence, producetheserelationships in part through a history of sodomy thatrepresents sodomy as transhistorically stableand identical to homosexual identity, thelastSection ofthisArticle becomes a critique notonlyofthepresent usesofsodomy, butofsodomy's history. An understanding of sodomy adequateto its current deployas exemplified ments, inHardwick, requires an acknowledgement that the historiography of sodomy is permeated by theinstability of act and identity.
gender and sexuality should be deferred in order to permit ofthehypothesis thatthey testing are semi-autonomous). 12 478 U.S. 186(1986). 13 Id. at 190.
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I. REASONS AND REASONERS [Ildentity is not the goalbutrather .... the point ofdeparture -Teresa de Lauretis14 The closet no longer reigns in solitary splendor as themetaphor for the political situation of gay men,lesbians, and bisexuals.Its door nowopensdirectly ontotheareopagus, theforum, thesenate hearing room, thecourt oflaw-onto scenes ofrational debate, public deliberandcollective ation, decisionmaking conducted under theaegisofreasonable discourse.The muse of rhetoric, if not her sisterlogic, presides. No one following evenremotely thefortunes ofsexualorientation in contemporary legalculture can havemissed therecent proliferation ofdebates requiring reference to somenotion ofreasoning. President Bill Clinton's announcement thathe wouldlift theban on gaymen andlesbians in thearmed forces has framed thequestion for vigorous, indeedvertiginous debateswithin the executive branch, in hearing roomson CapitolHill and aboardship,and on radiotalkshows.15 Debatesaboutthesocialmeaning ofsexualorientation pervade state and local politics and private bargaining: one side proposes antidiscrimination statutes and ordinances"6 and seeks employment con14 Teresade Lauretis, Feminist Studies/Critical Studies: Issues,Terms, and Contexts, in Feminist Studies/Critical Studies1, 9 (Teresade Lauretis ed., 1986). 15 For reports on thepolitical process leading to theDepartment ofDefense see Directive, GwenIfill, White HouseBacks2-Step Plan to End Military's Gay Ban,N.Y. Times, Jan.27, 1993,at Al (reporting President Clinton's suspension of the old military policyrequiring investigation and discharge ofanyone evincing homosexual desire or acts);Excerpts from the News Conferences by Clintonand Nunn,N.Y. Times,Jan. 30, 1993,at A8 (discussing Clinton's charge to theSecretary ofDefense offormulating a newpolicy to military acceptable leaders); Eric Schmitt, President's Policyon Gay TroopsIs Backedin VoteofSenatePanel, N.Y. Times, July 24, 1993, at A7 (discussing proposal bySenate Armed ForcesCommittee to codify stricter versions ofnewDepartment ofDefense policy).For theactualpolicy, see Text of Pentagon's New PolicyGuidelines on Homosexuals in theMilitary, N.Y. Times, July 20, 1993, at A16. Thisis a taleofthree branches, nottwo. See Meinhold v. United States Dep't of Defense, 808 F. Supp. 1455,1458(C.D. Cal. 1993) (enjoining enforcement of old military policy); Complaint forDeclaratory Judgment and Permanent Injunction, Doe v. Aspin,No. 93-1549 (D.D.C. filed July 27, 1993)(seeking to enjoin enforcement ofnewmilitary policy). 16 At least six statesand the District of Columbiahave instituted statewide statutory prohibitions against discrimination on thebasisofsexualorientation in employment, housing, and/or public accommodations. See 1991Conn.Acts91-58(Reg.Sess.)(codified in scattered sections ofConn.Gen. Stat.? 46a); Haw. Rev. Stat.?? 368-1, 378-1to -2 (1992);Mass. Gen. Laws Ann.ch. 151B,? 4 (West 1993); 1991N.J.Laws 519 (codified in scattered sections of N.J.Rev.Stat.?? 10, 1lA); 1992Vt.Laws 135(codified inscattered sections ofVt.Stat.Ann. - .322(West1992);D.C. Code Ann.? 1tits.1,3, 8, 9, 10,15,21); Wis.Stat.Ann.?? 111.321
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setsout on a whiletheother partners,17 domestic tracts recognizing the presenting publicdebate, future designed to foreclose campaign of Colorado-and by the of Oregon, California, voters of Riverside, and no doubt,otherlocalities timethisvolumereachesits readers, Acadebate.18 to have a about whether states as well-witha debate ,19 Posner's Sex and Reason Richard demics havefollowed suit. Judge to determine utilitarianism forinstance, uses the logicof economic andjust against gaymenand lesbians, just howmuchdiscrimination conduct, is reasonable.This of same-sex how muchstateregulation a cottage has engendered to the new rationality bold contribution dispute. industry of academic about sexual on reasoning focuses attention increasingly Judicial discrimiIn significant caseschallenging equalprotection orientation.
2501(1992). For a review & BlakeM. ofthelocal-ordinance see CraigA. Bowman approach, Cornish, Note,A More Perfect of DomesticPartner Union:A Legal and Social Analysis 92 Colum.L. Rev. 1164(1992). Ordinances, 17 For an unusually thoughtful and thorough ofthepolicy considerations study underlying this program, seeSubcommittee on Domestic Comm. on Faculty Partners' Benefits, University & Staff Benefits, Stanford on DomesticPartners' University, Reportof the Subcommittee Benefits (June1992)(on file withtheVirginia Law ReviewAssociation); Benefits Eligibility Extended to Same-sex Partners, CampusRep. (Stanford Dec. 9, 1992,at 1. A University), number ofcorporations haveadopted similar programs. HBO Grants Benefits to Staff's SameSex Partners, N.Y. Times, number of large July 2, 1993,at D3 (reporting that"a growing
public companies .
.
Foreclosure of Pro-Gay Political Activity. 19Richard A. Posner, Sex and Reason291-323 (1992). 20 The following book reviews evaluateJudgePosner'sSex and Reason: RobertM. Anderson, EP SeeksEP: A ReviewofSex and Reasonby RichardA. Posner, 31 J. Econ. Literature 191 (1993); MarthaErtman, Denying theSecretof Joy:A Critique of Posner's 45 Stan. L. Rev. 1485 (1993); WilliamN. Eskridge, Theoryof Sexuality, Jr.,A Social Constructionist Critique of Posner's Sex and Reason:StepsTowarda Gaylegal Agenda,102 Yale L.J.333 (1992);Elizabeth Fox-Genovese, Beyond Transgression: Toward a FreeMarket in Morality, 5 Yale J.L.& Human. 243 (1993);Robert P. George, 93 Can Sex Be Reasonable? Colum.L. Rev.783 (1993);GillianK. Hadfield, Flirting with Richard Posner on the Science: Bioeconomics ofSexualMan, 106Harv.L. Rev.479 (1992);Chris Hutton, Sex andReason:A Reviewand Application of JudgePosner'sTheory,38 S.D. L. Rev. 1 (1993); Martha Nussbaum, "OnlyGrey Matter"? Richard Posner's Cost-Benefit Analysis ofSex,59 U. Chi.L. Rev. 1689(1992); CarolSanger, He's GottaHave It, 66 S. Cal. L. Rev. 1221(1993); Martha Nussbaum, Venusin Robes,The New Republic, Apr.20, 1992,at 36. Sex and Reasonwas also thesubject ofan exchange in theConnecticut Law Review.See Katharine T. Bartlett, 25 Conn.L. Rev.473 (1993);Martha Rumpelstiltskin, A. Fineman, The Hermeneutics of Reason:A Commentary on Sex and Reason,25 Conn.L. Rev. 503 (1993); A. Posner, Richard The RadicalFeminist Critique ofSex and Reason,25 Conn.L. Rev. 515 (1993);Gillian K. Hadfield, Notthe"Radical"Feminist Critique ofSex andReason, 25 Conn. L. Rev. 533 (1993).
18 See infra Appendix A:
. offer same-sexdomestic-partner benefits").
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nationagainstgay men and lesbians, courtshave begunto apply rational basisreview in a waythatrequires thegovernment to articulateitsreasons for anti-gay policies, and thatrequires judgesto decide whether thosereasons are reasonable. In DustyPruitt's to challenge herdischarge from theArmy, theNinthCircuit required thedefendant to statenontautological reasonsforits anti-gay In policies.21 KeithMeinhold's suitalleging unconstitutional discrimination bythe Navy,the courtheld that"[t]heDepartment of Defense's justifications for itspolicy banning gaysand lesbians from service are military based on cultural myths and falsestereotypes" and failrationality More is at stakein thesedebatesthanthe appropriate policyfor government to takeon matters ofsexualdifference. Morefundamentally,theyinvolvea struggle to define in the discursive processes whichthatand other policy choicesshallbe made,and thusthediscursive situations of the debate'sparticipants. These debatesabout sexualorientation require all the players in the conto participate struction oftheir ownsexual-orientation andto makethemidentities, selvesavailableforinterpretation along thisregister by others. In aboutsexualorientation, debating we do notjust reflect or deliberate upon it and how it shall be used to effect of social redistribution goods:we also constitute it and enroll ourselves in it. Thisparticular effect of public conflict over sexual-orientation issues cannotadequatelybe described if we assumethatthe cultural effects of legal practices are "merely" symbolic. The roleofthelaw in constituting persons byproviding a forum for their conflicts overwho they shallbe understood tobe is deeply material, eventhough itinvolves notphysical force butthemoresubtle ofrepresentation. dynamics To takebutone example before turning to theroleofsodomy laws in thisconstitutive process, consider themeasurable increase in violenceagainst gaymenand lesbians thatattends these debates.23 This
21 Pruitt v. Cheney, 963 F.2d 1160,1165-67 (9thCir.)(reversing dismissal ofPruitt's equal protection claimand remanding it forrational-basis review), cert.denied,113 S. Ct. 655 (1992). 22 Meinhold v. United States Dep't ofDefense, 808 F. Supp. 1455,1458(C.D. Cal. 1993). 23 Timothy Egan,Violent Backdrop forAnti-Gay N.Y. Times, Measure, Nov. 1, 1992,at A15 (claiming thatviolence against supporters oftheproposed Oregon roseeven amendment as theamendment headedfor defeat); MichaelBooth& Adriel in Bettelheim, GaysSee Surge Violence, Denv. Post, Mar. 12, 1993,at lB (noting thatthe campaign forthe Colorado amendment fueled violence against homosexuals). 22 review.
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ones. Gay men, violence registers bothmaterial effects and rhetorical for them are lesbians, bisexuals, their supporters, and peoplemistaken thatthemilitary's killed, beatenup, and burned out.24By arguing ban on openly anti-gay violence, gaytroops was necessary to prevent effect ofthis proponents ofthatban recently escalated therhetorical At thispoint, thereperviolence from theimplicit to theexplicit.25 and of torture toireof rational debatecame to includethetheatrics of thecorporeal. death, thegraphic and imaginative invocation has grave effects on who Thisrhetorical deployment ofthematerial are measuraplaysin theensuing phasesofthedebate.Theseeffects bycultural critible notbyempirical means, butbythetoolsoffered cism.26 Louis Althusser'sfamous description of interpellation captures a first stepin thedynamic: that it'recruits' subjects 'acts'or'functions' insuch a way [I]deology the individuals into subjects among the individuals ... or'transforms' or hailing, andwhich can be imagined thelines ofthemost along hailing: 'Hey, youthere!' commonplace everyday police (orother) in imagined takes place Assuming that the theoretical scene I have round. Bythis mere onethestreet, thehailed individual willturn hebecomes a subject. hundred-and-eighty-degree physical conversion, addressed Why? Because hehasrecognized that thehailwas'really' tohim, andthat himwho (andnot someone 'itwasreally washailed'
else).27 whichI havecalledinterpellation . . . by thatvery precise operation
24 KendallThomashas described thepeculiar of homophobic violence and its intensity "communicative thrust," materially altering thelives ofanyone whocan imagine becoming its target.KendallThomas,Beyondthe Privacy Principle, 92 Colum.L. Rev. 1431,1461-67 (1992). 25 Senate Armed Services Committee Hearing on theBan on Homosexuals in theMilitary, May 11, 1993 (ReuterTranscript Service)(testimony of MarineCorps ColonelFrederick Peck). Pecknoted that"mysonScott is a homosexual, and I don'tthink there's anyplacefor
him in the military.... [I]f we went into combat[,] ... he'd be in grave risk ....
very fearful thathis lifewouldbe injeopardy from his owntroops."Id. 26 For a description oftheapproach offered here, see GuyoraBinder & Robert Weisberg, Literary Criticisms of Law, ch. 5, CulturalCriticism of Law (Princeton Univ. Press, forthcoming 1994)(manuscript on filewiththeVirginia Law ReviewAssociation) (arguing that regarding lawas a series of"socialtexts" susceptible to literary criticism maybe themost promising means ofpreparing to critique the"interests" which law notonlymediates butalso creates). 27 Louis Althusser, Ideologyand IdeologicalState Apparatuses (Notes towardsan Investigation), in Leninand Philosophy and Other Essays123,162-63 (Ben Brewster trans., 1971)(footnote omitted).
I would be
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us in generating engages or hailing ofsubjects The legalinterpellation to others, but how we imagine ourselves not onlyhow we present because material and symbolic ourselves as persons.It is inextricably howpeopleimagine the pollsbyrearranging itmaterially reconfigures engagements. in political and present themselves policy of violenceto the statusof legitimate Promoting threats subjects generated at leastfour debates arguments in themilitary-ban to thiscall "subjected" those responding in Althusser's sense. First, or bisexualto a as gay,lesbian, who alreadyidentified themselves the underthreat.Opposing defined by the identity political profile ofcouraa series and invoked ban meant in identity politics, engaging the personhoodof those that reconstituted geous comings-out encouraged ofthreatened violence thelegitimation involved. Second, they act erotic desire, whether same-sex many soldiers whoentertain itencouraged on itor not,to identify Third, publicly as heterosexual. as hetto identify publicly energies werecross-sex troops whoseerotic And wouldpermit. as their senseofdecorum erosexual, as explicitly of thethreat foranyone within reachof thelast twoeffects, fourth, a form of hetthat became a senseofindignation violence legitimated panic"28 becamea stateof "homosexual erosexual self-consciousness: ofdebate thesubject all daylong. Evenwhen mind onecouldinhabit idensettled sexual-orientation participants with seemsto presuppose conThe resulting maybe undernegotiation. tities, thoseidentities in the law and legal cultureof testsare even more discernable sodomy. ofsexualto theordering ofsodomy is crucial The criminalization ofhomosexual orientation particularly to thesubordination identities, Sodomy identity. of heterosexual identity and the superordination reasons: under concrete, material statutes arematerially important for their important for peopleareinjail.29Theyarematerially authority, imporacquiresymbolic symbolic reasonsas well. Sodomystatutes
28 For a description ofthe"homosexual panic"defense, raised bydefendants charged with assaulting gaymenor lesbians andpredicated on a theory that their revulsion at a homosexual overture compelled their actions, see GaryD. Comstock, theHomosexual Panic Dismantling Defense, 2 Law & Sexuality 37 (1992);Robert in Manslaughter: B. Mison,Homophobia The Homosexual Advance as Insufficient Provocation, 80 Cal. L. Rev. 133(1992). 29 In 1986,56 peoplewereincarcerated in Virginia on convictions of sodomy obtained without anyfinding offorce or coercion.Letter from DuncanBrogan, Executive Assistant to theDirector ofVirginia Department ofCorrections, to ACLU Attorney Barbara Quackenbos (Aug. 28, 1986)(on file with theVirginia Law Review Association).
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tancein partbecausethey are,mostoften, neutral.Twentyfacially eight states and Washington D.C. haverepealed their provisions govOf the erning sodomy, either by statute or through adjudication.30 twenty-three statutes (including the Military Code of Justice) that retain prohibitions on consensual sodomy, same-sex onlyfive prohibit sodomyalone and leave cross-sex sodomyunregulated.31 Eighteen no statutes theMilitary (including Code ofJustice) prohibit sodomy matter whether it is engaged in by peopleofthesameor ofdifferent sexes.32 It is notclearhow manyprosecutions forconsensual, noncommercial sodomy between adultsare threatened or brought every yearin theU.S., butit is clearthatthese statutes are at leastsporadicallyenforced, more often against same-sex conduct, though with surprising frequency against cross-sex conduct as well. Though discriminatory enforcement of sodomystatutes against in same-sex parties erotic contacts maybe difficult to prove,33 selectiveprosecution is widely recognized,34 and has evenbeenheld,in the military context, to "bear[] a substantial relationship to an important governmental interest."'35 Commentators haveargued thatan invidious legislative intentto targetsame-sexconductoftenunderlies facially neutral statutes, rendering themindistinguishable underthe Equal Protection Clausefrom thevery fewstatutes thattarget samesex conduct.36 I agreethatit is mostoften entirely appropriate to considerthe main run of sodomystatutes "homosexual sodomy law."37But mostsodomy statutes are in factfacially neutral.This
See infra Appendix B: RepealofSodomy in theUnited Statutes States. See id. See id. 33 See,e.g.,Ray v. State, 389 S.E.2d 326 (Ga. 1990);Gordon v. State, 360 S.E.2d 253 (Ga. 1987) (finding thatselective enforcement challenges to Georgia'ssodomy statute failedfor wantofevidence). 34 See,e.g.,Developments in theLaw: SexualOrientation and theLaw, 102Harv.L. Rev. 1508,1520-21 (1989). 35 Hatheway v. Secretary oftheArmy, 641 F.2d 1376,1382(9thCir. 1980),cert. denied, 454 U.S. 864 (1981). 36 Koppelman, supranote5, at 152-53; Developments in theLaw, supranote34,at 1526, 1531-34. 37 Mostanalyses ofsodomy lawsand their effect on sexual-orientation focuson hierarchy enforcement againstsame-sex contacts.See Thomas,supra note 24, at 1469 (analyzing "homosexual sodomylaw" as a "politicalpower"thatoperates in tandemwithprivate violence against gaymen,lesbians and bisexuals); Koppelman, supranote5, at 147 ("[T]he sodomy laws... function ... to maintain thepolarities ofgender on which thesubordination of womendepends.");Law, supra note 5, at 189-91,196-97(notingthatdiscriminatory
30 31 32
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Article focuses on thecultural dynamics setin motion bythe possibil-that crossthatis morethanmerely theoretical38 ity-a possibility sex conduct willbe prosecuted. The facially neutral sodomy statutes makecomplex and unstable reference to erotic actsand to thepublicidentities ofpersons.Conversely, act and identity are incommensurable articulations of sodomy. The nextPartargues thatprying act and identity apartin this context exposes thepolitical character ofthatequivocation.
II.
RHETORICS OF ACT AND IDENTITY
a benign as skin isnot ... characteristic, such color or "Homosexuality whether you're Hispanic or Oriental ... It goestooneofthemost fundamental aspects behavior." ofhuman -GeneralColinL. Powell39 The Uniform CodeofMilitary Justice, okay, which it'snot homosexualbasically saysthat nobody-and it'sheterosexual and homosexual-will not specific, engage inanykind youknowof, Koppel: Sodomy. that Capt. Gary: -sodomy. Well, wehaveheterosexual soldiers all menhere, do that on a dailybasis. We're and we've all heard soldiers talk. Rivers: I don't Capt. believe that. I don't agree with that. I do not agreeCapt. Gary: Well, itwasvery openly discussed.
enforcement of sodomy law, and its implicit approval by theSupreme Courtin Hardwick, justifies other forms ofdiscrimination against gaymenand lesbians and thustends to confirm traditional gender roles).A similar focus emerges inan interesting analysis oftheenforcement ofpublic indecency statutes. See George W. Smith, An Inquiry Policing theGay Community: intoTextually-mediated SocialRelations, 16 Int'lJ.Soc. L. 163,165,176-80 (1988)(analyzing policesurveillance andraidofa gaybathhouseinToronto in thearrest resulting ofmore than 300 men,and concluding thatthisintervention of statepowerinto gay men'slives was "textually-mediated" by police reports whichdepended, in turn,on the criminal code provisions prohibiting maintenance of a bawdyhouse, so that "the centralmechanism thepolicing organizing ofgaysis theCriminal Code"). I do notdisagree this I with approach: simply do notthink it is exhaustive. 38 See infra Appendix C: Cross-Sex Sodomy. 39 John Lancaster, WhytheMilitary Supports theBan on Gays;Arguments Ranging from Privacy to AIDS Offered Against Clinton's Rights Pledge, Wash.Post,Jan.28, 1993,at A8 (quoting speech by General Powellto theU.S. Naval Academy).
Capt. Gary:
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Capt.Rivers: Koppel: Capt.Rivers: Koppel: Cmdr.Carde: Capt.Rivers: Koppel: Capt.Rivers:
telling me that All right, wait a second. You're you've a straight bragabout getting never heard malesoldier oralsexfrom someprostitute orfroma girlfriend or from somewoman? Sure,butI do notagreeWell, that's sodomy. in themili-it is a dailyoccurrence and it'srampant tary, which is thewaythatrampant, butAmong the-notnecessarily It happens. Sure,it happens. It happens all thetime. in occurrence But it'snotsomething thatis a normal themilitary.
-Interchange onTed Koppel's Nightline'
"Theway I feelaboutit[theban on gaysin themiliI don'tlikethewaythey do is,I don'tlikethem, tary] things .... . McLaren41 -Pvt. Keith
us to imagine thatsodTwo apparently disparate trends encourage in therelation of omyand homosexual identity are identical, or that, as burglary is to burmetonymy, sodomy is to homosexual identity unfriendly to gay men, glars. The first of thesetrends is explicitly lesbians, bisexuals, and queers;the secondhas been crucialto the of anti-homophobic and litigation strategy. development thinking In thepost-Hardwick Whitedescribed environment, whatJustice as "homosexual as sodomy.Sevsodomy" has becomehomosexuals eral federal courtshave held thatHardwickforecloses heightened of discrimination disadvantageous to gay equal protection scrutiny sodomy is the"behavmen, lesbians, andbisexuals on theground that
ior that defines the class" of homosexuals.42 Other courts have
40 Nightline, Jan.28, 1993(ABC television broadcast, available in LEXIS, Nexislibrary, Script file)(interchange of MichaelGary,Chairof the Service Academy Gay and Lesbian Alumni Association andformer Army Captain; HankCarde, retired NavyCommander; Larry Rivers, Executive Director ofVeterans ofForeign Warsandformer Marine Captain; andTed Koppel,program moderator). 41 Peter Applebome, Military PeopleSplitOverBan on Homosexuals: Army; RanksAre As in Society, Split, N.Y. Times, Jan.28, 1993,at A16 (quoting Private McLaren). 42 See Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987)(emphasis added);see also HighTech Gays v. Defense Indus.Sec. Clearance 895 F.2d 563,571 (9thCir. 1990) Office, (holding thathomosexuality did notmerit strict or heightened scrutiny levelreview because
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whocomesoutof refused to acknowledge thata gaypublicemployee protected speech,or the closet has engagedin First Amendment thatan acknowledgement of indeedanyspeechat all, on theground in a criminal-orat least gayidentity is an admission ofmembership has bannedpublic criminalizable-class.43 The Alabamalegislature
v. Marsh, 881F.2d Hardwick declared itwas nota fundamental right or liberty); Ben-Shalom v. United 454,464-65(7thCir. 1989)(same),cert. denied, 494 U.S. 1004(1990); Woodward States, 871 F.2d 1068,1076(Fed. Cir. 1989)(same),cert.denied, 494 U.S. 1003(1990). v. Muci,759 F. Supp.1543 Ofcourse, See Jantz these moves haveprovoked countermoves. in (D. Kan. 1991)(rejecting conclusion that Hardwick intheequalprotection controls context, rev'don other parton ground ofa distinction between sexualconduct andsexualorientation), grounds, 976 F.2d 623 (10thCir. 1992),cert.denied,113 S. Ct. 2445 (1993); Watkins v. United States cert. Army, 875F.2d 699,716-20 (9thCir. 1989)(Norris, J., concurring) (same), denied, 498 U.S. 957 (1990);HighTech Gaysv. Defense 668 F. Indus.Sec. Clearance Office, Supp.1361,1371-72 (N.D. Cal. 1987)(same),rev'd, 895F.2d 563;HighTechGaysv. Defense Indus. Sec. Clearance Office, 909 F.2d 375, 379-80(9th Cir. 1990) (Canby& Norris, JJ., dissenting fromdenial of rehearing en banc) (same); see also Cass R. Sunstein, Sexual Orientation andtheConstitution: A Noteon theRelationship andEqual Between Due Process Protection, 55 U. Chi. L. Rev. 1161, 1168 (1988) (attacking application of due process precedent in equal protection cases). It is not at all clear how the rhetorics willbe interrelated in the of act and of identity upcoming struggle and discharge under thenewpolicy providing forinvestigation ofmilitary will personnel found to haveengaged in "homosexual clearthat conduct," butitis pretty they notinvolve thecomplexities ofhomosexuality totheexclusion ofthecomplexities ofacts. One commits "homosexual conduct"sufficient to justify discharge underthe new policyby a "homosexual act," an act of same-sex marriage, or a speechact of coming out. The policy further that an act of same-sexhand-holding will be sufficient an specifies to trigger investigation intowhether theservicemember hasengaged in "homosexual conduct."See Text ofPentagon's New PolicyGuidelines in theMilitary, on Homosexuals supranote15,at A16. "Conduct" has undergone a remarkable, and probablyconstitutionally unacceptable, here. Cf.Complaint forDeclaratory expansion Judgment and Permanent Doe v. Injunction, Aspin, No. 93-1549 (D.D.C. filed July 27, 1993)(challenging conduct-based regulation as an infringement ofrights tofree speech, topetition Congress, andtoequalprotection ofthelaws). Hand-holding exemplifies theimbrication ofact with in thenewpolicy.Whendone identity by peopleof thesamesex,hand-holding is at leastbivalent, in thatit couldindicate sexual or a large affection, number ofother, notprimarily sexual, forms ofliking andhelping. Ifit is to be deemed"homosexual conduct," thatmustbe becausea homosexual does it. This willprobably complex cross-articulation ofact and identity characterize theactualinvitation to policetheother forms as welland suggests of"homosexual conduct" that issues ofidentity in thisarea. cannot be sealedoff from issuesofconduct 43 Cf.Ben-Shalom, 881F.2d at 458-62 (rejecting plaintiff's First Amendment claim);Pruitt v. Cheney, 963 F.2d 989, 1160,1163-64 (9thCir. 1991)(same),cert.denied, 113S. Ct. 655 (1992). MichaelJ. Bowers, the Attorney Generalof Georgiaand, not coincidentally, the inBowers v.Hardwick, defendant in Shaharv. Bowers, triumphant has basedhisdefense No. 1:91-CV-2397 (N.D. Ga. Mar. 9, 1992),on thisinference. Bowers fired RobinJ.Shahar from in his office herposition as staff attorney whenshe announced thatshe intended to marry another woman.CourtAllowsLesbianLawyer to Proceed with SuitOverWithdrawal ofJob Offer, DailyLab. Rep. (BNA) No. 49,at A-7(Mar. 12,1992). In court papers Bowers argued
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ofanystudent funding group"thatfosters or promotes a lifestyle or actionsprohibited by the [state's]sodomyand sexual misconduct laws,"" relying on thestateAttorney General's opinion that, under Hardwick, Alabama'ssodomy statute-a prohibition of oral/genital and genital/anal contacts between any unmarried personS45-constitutionally prohibits In these applications "homosexuality."46 of Hardwick, thecase is construed to authorize statedecisionmakers to demote gaymen, lesbians, andbisexuals socially, and to exclude them from certain publicdebates, on thegrounds thattheir identity alone givesriseto an irrebuttable presumption thattheyhave committed criminalizable sodomy, and thatthisinferred conduct the is, in turn, essential defining feature of their identity. The samethinking that justifies theextension ofHardwick in these instances madea remarkable appearance in Senate hearings convened to testpublicopinion aboutPresident Clinton's proposed termination of anti-gay discrimination in the military. Reminded thatgay men and lesbians served as congressional aides,Senator Strom Thurmond demanded, "Sodomyis againstthe law. Why shouldn'ttheybe arrested?"47 And outside official fora, this equation repeatedly in appears the"specialrights" attack on efforts to locatehomosexualityand homosexuals in publicdiscourse. The "specialright" sought by gayactivists, it seems, is sodomy.Whenformer New York City SchoolsChancellor A. Fernandez Joseph promulgated a "Children of
that"the Plaintiff's continued employment following her publicly announced homosexual 'marriage' wouldhaverequired theAttorney General to recognize, tacitly ifnotpublicly, her flaunting the very law he had recently defended."See Memorandum in Supportof Defendant's Motionto DismissPlaintiff's Complaint and Amended Complaint, Nov. 15, 1991,at 15,Shahar(No. 1:91-CV-2397). Again,these gestures havenotgoneunopposed. Probably themostexplicit recognition of theimportance of gayidentity to thepolitical process has beenprovided by courts striking downprovisions intended tobarfuture public consideration ofgay-rights initiatives, discussed infra Appendix A: Foreclosure ofPro-Gay Political Activity. See Evansv. Romer, 854 P.2d 1270(Colo. 1993)(upholding a preliminary injunction thatstayed enforcement ofColorado's Amendment 2); Citizens for Responsible v. Superior Behavior 2 Cal. Rptr. Court, 2d 648(Cal. Ct. App. 1991) (upholding citycouncil'srefusal to place an antihomosexual initiative on ballot). For a discussion ofthepolitical character ofsexualorientation identity, see Nan D. Hunter, LifeAfter Hardwick, 27 Harv.C.R.-C.L. L. Rev. 531 (1992). 44 Ala. Code ? 16-1-28 (Supp. 1992). 45 Ala. Code ?? 13A-6-65(a)(3), 13A-6-60(2) (1982 & Supp. 1992). 46 AlabamaAttorney GeneralOpinion"Collegesand Universities-State Funds-Sexual Misconduct" (Mar. 19, 1992)(on file with theVirginia Law ReviewAssociation). 47 Senators LoudlyDebateGay Ban,supranote1, at A9.
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the Rainbow" curriculum that would have requiredelementary of same-sex school teachers to alerttheirstudents to the existence to complyand parents, the Queens Boroughschoolboard refused "material aimedat stated as a reason for itsrefusal thattheproposed rhetoric that promoting acceptance ofsodomy."48 The specialrights in Oregon has buoyed proposed constitutional amendments, defeated but adopted in Colorado, actuallyrequiring state discrimination discernsthe againstgay men, lesbians,and bisexualsrepeatedly sought by unregulated practice of sodomy to be the "specialright" of the gay-rights by proponents movement.49 Buttonsdistributed OregonMeasure9 announced, "Sodomy Is Not A SpecialRight."50 in theseformulations characteristic of is suchan intrinsic Sodomy a rhetorical homosexuals, and so exclusive to us, thatit constitutes so farthis proxy for us. It is ourmetonym. In thecontexts identified thatpro-gay equation seemsso unfriendly thatit is hardto recognize A familiar advocates frequently makea formally identical argument. is thepractice that example ofouting, when justified on thegrounds the truesexual-orientation is identity of a personlivingas straight eroticcontacts.5" conclusively demonstrated by his or her same-sex
48 Joseph N.Y. Times, Nov. 17, Berger, Teaching aboutGay Lifeis Pressed byChancellor, 1992,at B12 (quoting letter ofMaryA. Cummins, President oftheQueensSchoolBoard,to Fernandez). 49 Colorado's Anti-Gay Measure SetBack,N.Y. Times, July 20, 1993, Will at A8 (quoting Perkins, a leading proponent ofColorado's 2 to state, has sexis Amendment "'How someone notan appropriate criterion forprotected class status' "); Don Baker,A Matter of Sin and Acceptance, L.A. Times, Oct. 15, 1992,at B7 (making a "love thesinner buthatethesin" in favor oftheOregon argument in partbystating: "The gaycommunity wants proposal my ofapproval on their stamp behavior.... I cannot givethat ... approval.").Fordescriptions of these initiatives, see Appendix A: Foreclosure ofPro-Gay Political Activity. 50 MarcCooper, QueerBaiting in theCulture War:Winor Lose,Oregon's Measure 9 May DefinePopulism in the '90s, VillageVoice,Oct. 13, 1992,at 29. For an earlylaw review article J.Magnuson, stating this logic, seeRoger CivilRights The Public andSexualDeviance: PolicyImplications of theGay Rights Movement, 9 HamlineJ. Pub. L. & Pol'y 217, 235 (1989) ("Gay rights on ... an analogy rely ofbehavior based[on]status to true status.That analogy equatesa deviant sexualact with color, placeofbirth, or sex;it cannot bearserious analysis."). 51 Most arguments providing an ethical justification foroutinglimitthemselves to the propriety ofexposing, or ofrefusing to be complicitous in,thehypocrisy ofpublic figures who (1) are gayor lesbian; and (2) either (a) actively cooperate to defeat pro-gay initiatives, or (b) tacitly perpetuate thefalseimpression thatheterosexuality is a humannormby passing as straight. See Richard D. Mohr, Gay Ideas:Outing andOther Controversies 11-48(1992)(ch. 1, The Outing Controversy); Michelangelo Signorile, Queerin America: Sex,theMedia,and the Closetsof Power(1993). Proponents of outing tendto treat thefirst or criterion-gay lesbianidentity-asnonproblematic. Signorile, forinstance, designates it as a "factthat
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in ofpeoplewhoengage theheterosexuality characterize Suchoutings is thatveneer underlying veneer; as a hypocritical contacts same-sex the reinforces Thispractice "true"homosexuality. theoutedperson's once ofouting, thattheobjects by insisting dichotomy homo/hetero are necessarilyand evicted from the class of heterosexuals, anyvalueto bisexualIt thusdenies homosexuals. unproblematically the depletes itseriously or project.In addition, ityas a socialposition "heterosextheidentity layered under rangeofmeanings remarkable becausetheydenythe ual."52 These are seriouspoliticalmistakes
everyone in Hollywood knows who'squeerand who'snot." Signorile, at 263 (emphasis supra, added). Mohrengages in theproblem morecarefully of sexual-orientation designation, but insists that a single actofsame-sex sodomy unequivocally indicates that a manis gay("I might also knowthata maleis gaybecause, say,he has wolfed downmycockwith gusto"), Mohr, in marriage is an supra,at 16, whilea man's having two children by vaginalintercourse uncertain indicator ofheterosexual Id. at 17 ("His sex actsmayhavebeenpossible identity. only because he wasfantasizing he may abouthaving sexwith a guy-although too,ofcourse, is univocal never actually havedonethat.").According same-sex to this formulation, sodomy in a way thatcross-sex vaginalintercourse of is not. This inference involves a number categorical errors: theassumption that all persons theinference from areeither gayor straight; acts of same-sex to rigididentity as gay; and the default that"real" sodomy assumption heterosexuals do notengagein sodomy in thedynamics of or haveanyinteresting wrinkles their sexualidentities. Comparethecareful maintenance of sailors'heterosexuality forin an early, strived and otherwise progressive, articledescribing the enforcement of criminalsanctions against homosexuals in Los AngelesCountyin the early 1960s. Project, The Consenting Adult Homosexual and theLaw: An Empirical in Los Studyof Enforcement and Administration 13 UCLA L. Rev. 643 (1966). The study's Angeles County, authors concluded thatsailors from LongBeachfound themselves arrested for homosexual offenses notas realhomosexuals, butas " 'situational' violators whosuccumb[ed] to advances madeby'cruising' homosexuals." Id. at 690 & n.29. Nothing in the studysupports the notionthatthe sailorsshouldbe as the hapless(truly construed heterosexual) victims of homosexual seduction-a logical deficit thatproponents ofouting wouldbe quickto note. But neither is there to anyreason conclude,as Mohr's logic would lead one to do, that the sailors were unequivocally homosexual. The samethree categorical errors detectable in Mohr'sanalysis reappear in the Los Angeles study, although thesecond one is inverted: whereas Mohrinfers rigid identity as gayfrom same-sex theProject sodomy, authors inferred rigid identity as heterosexual a from of heterosexual in theU.S. background history from activity (cunningly deduced enlistment Navy!). Actsdo nottranslate, one-for-one, intoidentities. Once thatequation is gone,it becomes difficult to maintain thecorollary assumptions thattheworld properly provides twoand only two sexual-orientation identities, and thatheterosexuality is pureof sodomitic practice and homoerotic impulse.A practice of outingthat avoids thesecategorical errors might be possible, ethically justifiable, and/or politically useful, but it wouldnotlook muchlikethe practice ofouting as we knowit. 52 On thepossibility thatself-ascription ofheterosexual identity maybe nonhypocritically maintained evenby menwho routinely engage in same-sex erotic contacts, see,e.g.,Tomas Almaguer, ChicanoMen:A Cartography ofHomosexual Identity and Behavior, 3 differences
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rest ofacts. And they alonga register ofalliances possibility political into actsdiscourse ofthistypemerges outing error: on a categorical of discourse, and makesinvisible the relative autonomy identities of sodomy. themeanings each. It oversimplifies acts and of sodomitical Michel Foucault'sfamousperiodization this to confirm has been widelymisconstrued homosexual persons meansof a useful it provides but,read carefully, equation, powerful Foucault ofSexuality, ofhisHistory volume decoupling it. In thefirst of saw "a newspecification century claimedthatthelate nineteenth individuals": wasa catesodomy codes, orcanonical ancient civil bythe As defined the than more was nothing offorbidden perpetrator acts;their gory homosexual The nineteenth-century juridicalsubjectof them. inaddianda childhood, a casehistory, a past, became a personage, an a with morphology, form, and a life tion to being a type oflife, Nothing physiology. mysterious a and possibly anatomy indiscreet byhissexuality. wasunaffected that went into histotal composition as a singular sinthan him, lessas a habitual nature[.].. [andwas]
in him .... present It was everywhere with It was consubstantial thanby a certain . . . less by a typeof sexualrelations constituted
a temporary hadbeen .... Thesodomite sensibility quality ofsexual wasnowa species.53 aberration; thehomosexual haplinesdo not explainwhatFoucaultthought These celebrated from shift actsto nineteenth-century thegreat after penedto sodomy with ofsodomy on theequation depending One reading, sexualities. of acts) was assumesthatsodomy(a regime identity, homosexual Wherever of identities). (a regime into homosexuality transformed tohavebeensubis thought sodomy-the-act operates, thisassumption stubnevertheless if sodomy sumedintohomosexuality-the-identity; of acts,themoveis to as a category its importance bornly reasserts of personage invented itintothenewly saveappearances byabsorbing thehomosexual. assumesless,and An alternative of Foucault'sparagraph reading leavesin place a morecomplexand moreadequateset of analytic
"Hispanics," 75 (1991); Ana Maria Alonso& Maria TheresaKoreck,Silences: AIDS and 1 differences J.Reiss,Jr., The Social Integration SexualPractices, 101,106-15 (1989);Albert on Deviance181(HowardS. Becker ofQueers and Peers, in The Other Side:Perspectives ed., 1964). 53 Foucault, supranote8, at 43.
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categories forunderstanding thereasoning ofsodomy.On thisreading, therhetoric ofactshas notbeenevaporated or transformed; ithas merely beendisplaced, setto one sideand madeslightly more difficult to discern bytherhetoric ofidentity.54 Thus sodomy-evensodomy between twopeopleofthesamesexor gender-isnotnecessarily the equivalent ofactsor ofidentities; itis nowunstably available for characterization as a species ofactand/or as an indicator ofsexual-orientation personality. As Sedgwickhas argued,the applicationof gender-neutral in a culture sodomy statutes thatsimultaneously punishesdisfavored identities creates a "threat of... juxtaposition [that] discourse of acts can represent nothing but an anachronistic vestige."55And as Jonathan Goldberg argues,this "juxtaposition" is threatening because sodomy, "that utterly confused category," as Foucault memorably putit,identifies neither persons nor actswith any orspecicoherence ficity. Thisis onereason why theterm canbe mobilized-precisely because it is incapable ofexact definition; butthisis also howthe oftheterm, bankruptcy andwhat hasbeen initsname, done canbe
uncovered.56
...
can only be exacerbatedby the insistence of gay theorythat the
The volatility of sodomy appearswhenlegislatures, courts, prosecutors, juries,voters, and publicopinionattempt to determine which bodilyacts come withinits scope; and again when theseplayers attempt to determine whichsexual-orientation identities it governs. But a morecomplex rangeof flexibility is offered by thepossibility thatvolatility ofthefirst type is interlinked with volatility ofthesecond. The Supreme Court'sdecision in theHardwick case itself providesa laboratory forexploring thesecomplex links.
54 Foucault's pronouncement does,however, insist that homosexual difference did notexist before theendofthenineteenth century. I am notat all surethatthisclaimhas beenshown. See Janet E. Halley, Bowers v. Hardwick in the Renaissance, in Queering theRenaissance, (Jonathan Goldberg ed., forthcoming 1993) (recommending "a certain skepticism [in] any project ofreading thehistory ofsodomy todecidewhen andwhere a homosexual, gay, lesbian, or queersubjectivity cameintoexistence"). 55 Sedgwick, supranote10,at 47. 56 Jonathan Goldberg, Sodomy in theNewWorld: Anthropologies Old and New,29 Social Text46, 46 (1991) (quoting Foucault, supranote8, at 101).
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About Sodomy Reasoning

"HOMOSEXUAL CONDUCT" IN BOWERS v. HARDWICK
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-Gayle Rubin57 in Hardwick and theconcurring opinion Justice White'smajority frames to be transparent Justice Burger purport opinion filed byChief to the contributions whichwe maybeholdnottheJustices' through but thoseprepared beforerhetoric of sexualacts and orientations, itself. civilization hand by the people of Georgiaand by Western it to resist it,to understand Suchtransparency is a rhetorical posture; as opaque. In this as rhetorical, one mustsee thetextofHardwick a "socialtext," ofa paras a cultural gesture, Part,I readHardwick to the majority kind. Ratherthanattribute ticularly authoritative thisPart haveproduced, better thantheone they Justices an analysis willexamine thecomplex ofact and they haveinfactdonewith what work their above-even at thecost of describing identity described incoherincoherent. The factthatsimilar product as systematically the elsewhere, before or since,does notrelieve encieshave emerged from theapexofthe salience ofan assertion severity and thecultural federal judiciary. to TheHardwick itspeculiar contribution setthestagefor decision would and for the posturethe Justices act/identity incoherence, As in theend,when itwouldanswer.58 itframed thequestion assume all thedissenters on the every academiccommentator and virtually soda gender neutral challenged case havenoted, MichaelHardwick sodomy to be "anysexual on itsface.59 Georgiadefined omystatute and themouth or anusof act involving ofone person thesex organs prohibition of thespecithusimposing a facially neutral another,"0 of the actors. Not fiedbodilycontacts notwithstanding the gender
Rubin, supranote9, at 309. See Robert A. Ferguson, The Judicial 2 Yale J.L.& Hum. Opinion as Literary Genre, 201,206-08 (1990)(arguing that"[t]herealcreativity in a judicialdecision liesin thequestion that judgesdecide to accept as thebasisoftheir deliberations" andthat this activity is a crucial mechanism of "U]udicial self-fashioning"). 59 Critical examination ofJustice White's refusal to consider thefacialchallenge raised by Hardwick and his focuson "homosexual sodomy"instead, JohnPaul beganwithJustice Stevens'dissenting opinion.Hardwick, 478 U.S. at 214 (Stevens, J., dissenting). For a sustained consideration of theimplications of thispointforlitigation strategy, see Hunter, supranote43. 60 Ga. Code Ann.? 16-6-2 (Michie1984)(emphasis added).
57
58
ispolitical. Likegender, sexuality
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onlyis it not limited to "homosexuals," it does not even mention them.And yettheCourtlimited itsreview to thequestion
whether theFederalConstitution confers a fundamental right upon homosexuals to engagein sodomy and henceinvalidates thelaws of themany States thatstillmakesuchconduct illegal and havedoneso fora very longtime.6"
The by-now classicresponse to thismoveis to exclaim at thetransparent fictionality oftheCourt's determination thatthecase involved homosexual sodomy.I have done thisa number of timesmyself.62 Butto stopthere is to oversimplify whatis going on in thecase. The majority Justices' deft manipulation ofact and identity responded to HardHardwick's ownefforts to managetheseelements by trapping wickunder therubric "homosexual sodomy" and permitting heterosexualsodomy-andidentity-to escapefrom view.
A. Plaintiff's Case couldsaveyou now. Only politics -William E. Connolly63
Justice White'sdesignation of Hardwick's case as a claim fora right to engage in "homosexual sodomy" captures a tension thatpermeatedHardwick's litigation papers,whichsoughtthroughout to present a facial challenge to a facially neutral statute, and to acknowledgethatHardwick, as a homosexual, claimed protection due to all ofidentities own persons.The discourse thuspermeated Hardwick's
61 Hardwick, 478 U.S. at 190 (emphasis added). In vigorous dissent, Justice HarryA. Blackmun deniedthatthemajority had accurately described theright at stake:Hardwick's challenge, Justice Blackmun wouldhaveruled, calledforadjudication of thescopeof " 'the right to be let alone,'" id. at 199 (Blackmun, J.,dissenting) v. United (quoting Olmstead 277U.S. 438,478 (1928)(Brandeis, States, J.,dissenting)); theright to "control[ of ] thenature [one's]intimate associations with others," id. at 206 (Blackmun, J.,dissenting); and "theright ... to conduct in theintimacy intimate relationships of [one's]ownhome. Id. at 208 (Blackmun, J.,dissenting). 62 Halley, supra note 54; JanetE. Halley, Misreading Sodomy:A Critiqueof the Classification of "Homosexuals" in Federal Equal Protection Law, in Bodyguards: The Cultural Politics ofGender Ambiguity 351,355 (Julia & Kristina Epstein Straub eds.,1991). 63 Identity\Difference: DemocraticNegotiations of Political Paradox 174 (1991). Describing thesituation of a womanforwhomfemale identity is "a relatively unimportant cultural artifact" and whoattempts to escapeitsidentification, Connolly observed thatsuch ingetting attempts may"only succeed as a deviant yourecognized ofthecategory member you resist, and thisdefinition eventually enters somehow or other intowhatyouactually become. couldsave younow." Id. Onlypolitics
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White to putit ofhisclaim;Justice was notthefirst litigation person there.Instead, case was structured plaintiff's by a tension between to captherhetoric ofactsand therhetoric ofidentity as they sought turethemeaning ofsodomy. Hardwick was charged withsodomy after a Georgiapoliceofficer his bedroom him engagedin mutualfellatio entered and observed with another man.' Thisact ofmale-male sodomy was theonlyone in therecord a thedistrict forlack ofstanding after courtdismissed married couple, John and MaryDoe, whoalleged thatthey to wished insodomy in theprivacy from engage oftheir homebutwere deterred ofprosecution.65 WhentheDoes appealedtheir disdoingso byfear missal, theEleventh Circuit affirmed it.66The Does' claimto standing reliedon an unsupported assertion thattheywerefacedwitha credible of prosecution, was threat and in any event, their presence nota prerequisite to Hardwick's facialchallenge to thesodomy statute. In lightof thesecircumstances, and unaware of thesurprising rearrangement ofactandidentity thatwouldbe madebythemajority the Does did not further when Justices, challenge theirdismissal GeorgiatookHardwick's claimto theSupreme Courton certiorari. Likeanyother person, Hardwick was entitled to challenge thestatute on adjudication facially, and to insist directed to criminalization of certain bodily acts. in light Framing thatfacialchallenge of theact/identity dynamic produced twonoticeably different strategies. A teamoflawyers with theACLU ofGeorgia, headedby Kathleen L. Wilde, litigated Hardwick'scase before thedistrict court and theEleventh Circuit and filed theplaintiff's briefs before theSupreme Courtarguing thatGeorgia's forcertiorari petition shouldbe denied.67 After theSupreme Court
64 For detailsof the circumstances leadingto Hardwick's arrest, see PeterIrons,The Courageof their Convictions 392-403(1988); Thomas, supranote24, at 1436-43; Rahel E. Kent, Case Comment, Constitutional Law-An Imposition of the Justices' Own Moral Choices:Bowersv. Hardwick, 478 U.S. 186 (1986), 9 Whittier L. Rev. 115, 130-32n.l01 (1987);ArtHarris, The Unintended Battle ofMichaelHardwick, Wash.Post,Aug.21, 1986, at Cl. 65 Hardwick, 478 U.S. at 188n.2. 66 Hardwick v. Bowers, 760 F.2d 1202, 1206-07(11thCir. 1985),rev'd,478 U.S. 186 (1986). 67 Briefof Respondents in Opposition to Petition for Writof Certiorari, Bowersv. Hardwick, 478 U.S. 186 (1986) (No. 85-140). For a discussion of the litigation history of Hardwick, see Patricia A. Cain,Litigating forLesbianand Gay Rights: A Legal History, 79 Va. L. Rev. 1551,1612-17 (1993).
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convened a Sullivan Laurence Tribeand Kathleen granted certiorari, to handlethe case.68 Thoughboth teams new groupof attorneys diverged. their approaches facialchallenge, insisted on Hardwick's thebriefs on thepetition forcertiorari, HardUp to and including a question of his case as raising framed wick'sattorneys consistently and identity his sexual-orientation rights, emphasizing homosexual In hiscomplaint, he was arrested. theactsforwhich deemphasizing and homosexual,"69 as a "practicing himself Hardwick characterized that stated for a writ ofcertiorari Georgia's petition hisbrief opposing in private acts,and will homosexual "as Hardwick regularly engages in Georgia, is in homosexuals do so in thefuture, he, likeall other imprisonand potential imminent dangerof arrest,prosecution, acts" equatesall "homosexual implicitly ment."70 This formulation ofhomosexbothunder therubric and subsumes them withsodomy conduct from homosodomitical It subtly distinguishes ual identity. the latterto the courtas its real sexual personhood and presents to call on thecourt concern.Hardwick's first was therefore strategy bymaking their to protect intimate invasion ofpersons from a group an accidental) charterms, adventitious (in Aristotelian actsa merely to arrest.Thoughthe early themvulnerable acteristic thatrenders to "homosexcontinuing commitment Hardwick's briefs emphasized thata to hold at bay the conclusion ual acts," theywerewritten is a sodomite. "practicing homosexual" a different strategy, pursuing secondteamofattorneys, Hardwick's was After certiorari altogether. worked to excludethatconclusion thathischalconsistently emphasized attorneys granted, Hardwick's claim theyrecastHardwick's lengewas a facialone. Accordingly withpainstaking careas a bid forprotection notof alongtheregister of private lifein intimacies identities but of acts-"the associational the sanctuary of the home."'71 Hardwick'sSupremeCourt brief onlyonce,and thenit argued "homosexual sodomy" acknowledged onlyhomoselectively, targeting thatGeorgia's decision to prosecute above and explanation" sexual sodomy,required"particularized
Brief forRespondent, Hardwick (No. 85-140). ? 4, Joint Complaint Appendix at 3, Hardwick (No. 85-140). 70 Brief of Respondents in Opposition to Petition fora Writof Certiorari at 1,Hardwick (No. 85-140). 71 Brief for Respondent at 7, Hardwick (No. 85-140); see also id. at 2 n.2(insisting that the sodomy statute is notlimited to homosexual sodomy).
68 69
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of homosexualof moralcondemnation beyondthe mererecitation as from hisidentity theplaintiff to distance The brief attempted ity.72 rather it as partofthestate'sanalysis by designating "homosexual" of a posture appearsherein the defensive Identity thanplaintiff's. statneutral ofa facially enforcement fordiscriminatory justification ute challenged on itsface. anxiety-amply inthis wayreflects The decision identity to alienate Hardwick's between in retrospect-about the relationship justified and his act ofsodomy.Hardas a homosexual intoreasoning entry in theshadowofthepossiweredrafted Courtbriefs wick'sSupreme acts"and can offorbidden a "category can remain bility thatsodomy is if ofgayidentity only all mention form theobject ofa facialattack seemto thebriefs wereto materialize, excluded.If thatpossibility and simultaneas "a homosexual" wouldemerge Hardwick suggest, a of"a personage, province as thepeculiar ouslywouldclaimsodomy of in a type to being addition and a childhood, past,a case history, White's And as Justice ...."7 and a morphology life, a lifeform, MichaelHardwhenidentity captures decisionwas soon to reveal, himtoo. wick'sact of sodomy, it captures a indicate in thesebriefs reflected struggles The almostSisyphean homosexof vulnerability borneby the "reasoning form particular sign thehuman becoming risks thisposition occupying ual." Anyone Keepareone and thesame. rhetoric thatactsrhetoric and identities thepeculiar apartmaybe theonlywayto resist ing theserhetorics White's as it did in Justice form thatpowertakeswhenit appears, reasoning. as heterosexual opinion, majority B. Opinions and Concurring TheMajority
I holdea mouses a leek herte nat worth to. fortosterte Thathathbutoonhole
ofBath74 TheWife
fixity at thecrux was subject to a terrible WhileMichaelHardwick BurJustice Whiteand Chief of theact/identity Justice intersection,
See Brief forRespondent at 13,25-29, Hardwick (No. 85-140). Foucault, supranote8, at 43; see supranote53 and accompanying text. 74 Geoffrey The Wifeof Bath'sPrologue Chaucer, and Tale, in The Worksof Geoffrey Chaucer81 (F.N. Robinson ed., 2d ed. 1957).
72 73
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gerdisaggregated these discourses.75 By thismeansthemajority Jusofacts,the ticesframed therhetoric an unstable relationship between rhetoric of identity, and Michael Hardwick's act of sodomy. Repointing thepassagein whichtheCourtpresented indiits question cateshowthevolatility ofact and identity in thiscontext. operate As Justice Whiteinformed us,
The issuepresented is whether theFederal Constitution confers a fundamental right uponhomosexuals to engagein sodomy and hence invalidates thelaws ofthemanyStatesthatstillmakesuchconduct illegaland havedoneso fora very longtime.76
Whatdoesthe"such"of"suchconduct" refer to? To sodomy generally? Or doesit refer to sodomy who as inflected bythehomosexuals do it?77 WhenJustice White invoked tojustify a historical argument rejecting thefundamental rights claimframed in thisway,he found that "[piroscriptions againstthatconducthave ancientroots"78-a in conclusion thatmaintains ofitsobject, a binocular vision hanging delicate between act and identity. equipoise Are"homosexuals" definitive of"suchconduct" or not? Theseformulations (and others appearing throughout Justice White's opinion forthemajority and Chief Justice Burger's concurring opinion) keep
75 It might be claimed that Hardwick doesnotsupport theclose,rhetorical it reading given in thisPart becausethe majority Justices considered the Georgiastatute "as applied"to Hardwick's act of sodomy, whichwas concededly "homosexual." This approach to Justice White's and ChiefJustice Burger's opinions is simpler thanmine, to be sure,butit cannot accountfortwo important of theiropinions.First, features it cannotexplainthe Court's complete failure to notethat theactualconduct towhich thestatute hadbeenapplied-male/ malefellatio-was nottranshistorically "sodomy," and instead provides an excellent starting point for deconstruction of the Court'shistorical claims. Anne B. Goldstein, History, Homosexuality, and PoliticalValues:Searching forthe HiddenDeterminants of Bowers v. Hardwick, 97 Yale L.J. 1073(1988); see infra textaccompanying notes116-42. Second,it cannot explain the Justices' interest in homosexuality-an interest which becomesso exuberant that theyread Georgia'sfaciallyneutralstatuteto expressa popularmoral condemnation of "homosexuality." Hardwick, 478 U.S. at 196;see infra textaccompanying notes147-50. If the "as applied"theory cannotexplaintheJustices' treatment of acts or identities, it seemsappropriate to seeka lessparsimonious explanation. 76 Hardwick, 478 U.S. at 190(emphasis added). 77 A similar splitreference problem appearsat thebeginning of theCourt'sfundamental rights analysis, where Justice White proposed totest for "a fundamental right [of] homosexuals to engage inactsofconsensual sodomy." Hardwick, 478 U.S. at 192(emphasis added). When he then inquired intowhether theConstitution created a fundamental right to engage in "that conduct," id. at 192 (emphasis added),he brought judicialattention to bearon an unsettled agglomeration ofidentity and conduct.See id. at 192-96. 78 Hardwick, 478 U.S. at 192(emphasis added).
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theCourtin suspense: it remains ready to answer yesor no. Sodomy can receive itsdefinitive from the"homosexuals" characteristic who do it,or can standfree of persons and be merely a "bad act." The as a metomajority Justices haveenabled themselves to treat sodomy nym for homosexual personhood-or not, as they wish. The question Justice White butactually setsoutto answer is thusapparently single multiple: "such conduct" represents nota purely act-based categorical system butan unstable and conduct hybrid one,in which identity simultaneously diverge and implicate one another. A classicdeconstructive claimat thispointis to saythatdetecting the instability of the decision's figural structure it and undermines threatens to dissolve itsclaimsto authority. Such a claimis implicit in thevirtually ubiquitous conclusion that theHardwick majority vitiateditscredibility whenit framed thequestion ofthecase. Butsuch instability is notperse a source ofweakness; in themajority and concurring opinions it can be seeninstead as positively the constituting peculiarpowersand securities belonging to the styleof reasoning adoptedby themajority That reasoning Justices. style produces not ideasaboutsodomy, onlycertain butalso,through them, certain positionsfrom whichto reasonabout it, and especially a heterosexual position from which to reason aboutit. We can saytheJustices occupied thisheterosexual posture eventhough we knownothing about their personal erotic preferences. It is a public a publicidenposture, tity, and a pointof vantage in publicdiscourse.UnlikeHardwick's position-fixed, exposed,visiblein the klieglightstrained on the homosexual sodomite-theJustices' heterosexual positionis fluid, everretaining hidden, a rhetorical place to hide. A comparison of the Court'sfundamental rights holding withits application of rationalbasis reviewrevealsthe advantages of the majority Justices' labilestrategy by exposing thesystematic waysin which actsand identities In his generate incoherence and instability. fundamental rights analysis, Justice White(cheered on by Chief JusticeBurger) exploited therhetoric ofactsto makeplausible hisclaim thatsodomyhas been,transhistorically and without surcease, the objectofintense socialdisapprobation. In therational basisholding, on theother hand,Justice White movedintoa rhetoric ofidentities, holding thatGeorgia's sodomy statute rationally implements popular condemnation of homosexuality. Even withinthese distinct and opposedarguments, however, thetworhetorics are interlocked: that
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ofactsimplies and depends thatofidentiupon,evenas it excludes, ties-and viceversa. The fundamental cannot rights holding actually constitute a coherent based on acts alone,forthe history of sodomy acts thatconstitute Whiteachieves are too various: Justice sodomy the appearance of coherence hereonlythrough persistent, implicit ofhomosexual invocations as theunifying theme ofsodomy's identity prohibition. Conversely, hisrational basisclaim-thata facially neutralsodomy is reasonable statute becauseit makesa legitimate popular statement If condemning incoherent. homosexuality-is frontally therational basisholding and itsinvocation ofidentity makesenseat all, it is becausetheyconfer and immunity on a certain invisibility typeof act. Indeed,heterosexual acts of sodomy are so thoroughly detached from therhetoric ofidentity arenot thatthose whodo them evenacknowledged as a class ofpersons. The result of thesearrangements is a chiastic relationship shaped likethis:
Primary Rhetoric Fundamental Rights Holding
Basis Holding
Rhetoric Secondary .. Identities Acts
Acts
.
Rational
asi Honl
Identities
This diagram schematizes a doublebind. In everyday language, you are in a doublebindwhenyou cannotwinbecauseyourvictorious opponent is willing to be a hypocrite and to "damnyouifyoudo and damn you if you don't." More strictly a double bind examined, involves a systematic arrangement of symbolic systems withat least three characteristics. First, twoconceptual systems (or "discourses") are matched in their opposition to one another; one is consistently understood to be notonlydifferent from butthelogicalalternative of theother.Second,thepreferred discourse actually requires thesubone to makeit work. It is at thispointthata naivedeconmerged structive claim is oftenmade, that the secret inclusionof the nonpreferred discourse as a prerequisite forthesmooth operation of theexpress one reveals thewholesystem to be fatally unstable.But thatvery third, instability can be thesourceofsuppleness and resilience,becausethetwostacked discourses can be flipped: theone that was submerged and denied can become express, and it in turn can be
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covertly supported by the one thatwas preferred. The master of a doublebindalwayshas somewhere to go. Butwhois to be themaster? As Sedgwick in herexamiconcludes nationof a muchwiderrangeof pairedopposites, or "binarisms," thanI am studying here, rather than embrace an idealist faith in thenecessarily, immanently self-corrosive efficacy ofthecontradictions to these definiinherent tional I willsuggest binarisms, that fordiscursive instead contests power canbe specified as competitions for thematerial orrhetorical leverage required tosetthe insome terms of, andtoprofit way from, theoperations ofsuchan incoherence ofdefinition.7 The majority Justices inHardwick, having at their disposal quitea bit of"material [and]rhetorical leverage,"" wereable to exploit thesystematic instability oftheact/identity system bytreating itas a double bind. Hardwick, his attorneys although strove withsteady to insight tametheact/identity problem, was cinched bythedoublebindin the end. It doesnotalways haveto be thatway. The denied and submerged element in a doublebind provides a pointforresistance. Several authorsin this volumerecommend that pro-gay analysisdirectly addresstheproblem of acts-a focusthatsuggests a sensethatacts mustbe evaluated as a potential place from whichto articulate the claimsof gay men,lesbians, and bisexuals as oppositional.81To be sure,thedominant groupcan at any moment makesuch resistance futile byflipping thesystem. And where thedominant groupis willing,as werethe majority Justices in Hardwick, to keep the paired ofthedoublebindin actionsimultaneously, dynamics thedanger of such destabilization is perpetually present, and imposes on the less powerful playera rangeof strategic optionsin whichfluidity will alwaysbe at leastpotentially valuable.
79 Sedgwick, supranote10,at 11. 80 Id.

81 Cain,supranote67, at 1640-41; MaryAnn Case, Couplesand Coupling in thePublic A Comment Sphere: on The LegalHistory ofLitigating for Lesbian and GayRights, 79 Va. L. Rev. 1643(1993);Nan D. Hunter, Speech, Identity, and Equality, 79 Va. L. Rev. 1695(1993).
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Rights 1. Fundamental law!" wasa sodomy there I didn't even know I started this, "When
-Michael Hardwick82
myself:" I wasincriminating "I hadnoideathat -JamesMoseley83 in holding rights fundamental Court's oftheSupreme The linchpin that,bothJustice regulation of anti-sodomy Hardwickis a history claim,is univocaland continuous Burger Whiteand ChiefJustice could for the CourtthatHardwick wrote White overtime. Justice sodomy" rightto engagein homosexual assertno "fundamental rooted to is " 'deeply he aspired unlesshe couldshowthattheliberty '84 and tradition.' history in this Nation's Thoughthe Courtcould have heldforthestateof Georgiaon a thatthe showing to makea positive had failed thatHardwick finding set decision White's Justice rooted," was so "deeply he claimed liberty Hardwickclaimedhas been out to prove more: that the liberty "such conduct"as a stable, rejected.It represents transhistorically thestates history: foract(s) thathavea monolithic univocal signifier "stillmake such conductillegaland have done so fora verylong And he wenton to hold: time."85 be rights fundamental that [the requirement to us that It is obvious would [not] andtradition"] history in this Nation's rooted "deeply inactsofcontoengage right tohomosexuals extend a fundamental haveancient thatconduct against Proscriptions sensual sodomy. lawandwasforbidatcommon offense wasa criminal Sodomy roots. Billof the 13States they ratified when lawsofthe original denbythe all wasratified, Amendment In 1868, when theFourteenth Rights.
Hardwick). Irons, supranote64, at 402 (quoting in 24 States, Wash.Post,Apr. 11,1993, Survive Laws Against Sodomy Joyce Murdoch, with hiswife, seeinfra ofMoseley's conviction ofconsensual sodomy at A20. For a discussion Sodomy. Appendix C: Cross-Sex 84 Hardwick, 431 U.S. 494, Moorev. CityofEast Cleveland, 478 U.S. at 191,192(quoting asserted were also askedwhether theliberties added). Formally, White 503 (1977)) (emphasis " 'implicit if justice wouldexist 'neither liberty nor intheconcept ofordered liberty,' suchthat 302 (quoting Palko v. Connecticut, weresacrificed.'" Hardwick, 478 U.S. at 191-92 [they] in original).But Justice Whitedevotedno separate U.S. 319, 325-26(1937)) (alteration fundamental-rights as to Hardwick's entire to thistestand relied forhis conclusion analysis thestandard stated below.I joinhiminignoring ofsodomy analyzed claimonly on thehistory in Palko. 85 Hardwick, 478 U.S. at 190.
82 83
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but5 ofthe37 States in theUnion hadcriminal sodomy laws. In fact, until 1961, all 50 States outlawed 24 States sodomy, andtoday, andtheDistrict ofColumbia continue to provide criminal penalties forsodomy in private performed and between adults. consenting this insuch Against toclaim that a right toengage conbackground, duct is 'deeply inthis Nation's rooted andtradition' is,at history best, facetious.86 ChiefJustice Burger a similar reached conclusion: "there is no such as a fundamental thing right to commit homosexual because sodomy" to recognize sucha right "wouldbe to castasidemillennia ofmoral
teaching."87
It is now commonplace to disparage theHardwick Justices' performance as historians, though it is lesscommon to specify whatwas with it.88At first wrong blushtheproblem with theCourt's sweeping claimabouttheGeorgiasodomy statute's "ancient roots"is simply thatit rests on a single, unexamined secondary source, theUniversity ofMiamiSurvey.89 Justice White's clerk gaveonlythelightest copyto theSurvey's editing conclusion that"[c]urrent statelawsprohibiting homosexual intercourse are ancient in origin,"90 and the Court adoptsthisposture ofslavish dependency unwisely, as evena passing acquaintance withtherelevant literature indicates.91
86 Id. at 192-94 (citations & footnotes I havedeleted omitted). inwhich theCourt footnotes painfully lists every state sodomy statute ineffect in 1791(when theBillofRights wasratified) and in 1868 (whenthe Fourteenth Amendment was ratified). I also deletea misleading footnote on themodern repeal ofsodomy statutes: 26 states though hadrepealed their sodomy states by 1986,theCourtcitesonlyone. For a moreaccurate account of repeals, see infra Appendix B: RepealofSodomy Statutes in theUnited States. 87 Hardwick, 478 U.S. at 196-97 (Burger, C.J.,concurring). 88 As Judge Posner correctly notes, theavalanche oflaw review commentary on Hardwick provides vastly moredoctrinal thanhistorical analysis.Posner, supranote19,at 347. Anne B. Goldstein's article, withwhichI differ at some pointsin thisArticle, is a remarkable, pathbreaking exception-asJudge Posnerhas noted. See Goldstein, supranote75; Posner, supranote19,at 343 & n.49. 89 Yao Apasu-Gbotsu, Robert J.Arnold, Paul DiBella,KevinDorse,Elisa L. Fuller, Steven H. Naturman, Dung HongPham& James B. Putney, Survey on theConstitutional to Right Privacy in theContext ofHomosexual Activity, 40 U. MiamiL. Rev. 521 (1986) [hereinafter Survey]. 90 Id. at 525. 91 The Survey authors included in their unbroken history ofsodomy at leasttwoperiods in Western in whichsame-sex history conduct often classified as sodomitical was not merely tolerated incertain but, settings, socially approved: theancient andtheearly medieval periods. Id. at 525. ThustheSurvey purports to find whatPlato"believed" about"homosexuality" in hisLaws, id.; see Plato,The Laws of Plato,Book VII 835d-842a (ThomasL. Pangletrans.,
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embarrassto the Court'shistoriographical What givesstructure by its uncritical represented mentis not the sheerbad scholarship
to mention hisSymposium. See Plato,On Homosexuality: Lysis, Phaedrus, 1980)-and failed and Symposium ofthe (Benjamin Jowett oftheimportance trans., 1991). For considerations in the historyof erotic relationsbetweenmen, see K.J. Dover, Greek Symposium Homosexuality 11-13, 162-70 (1978);David M. Halperin, in One Whyis Diotimaa Woman?, Hundred Years of Homosexuality and OtherEssayson GreekLove 113 (1990); William N. Eskridge, Jr., A History ofSame-Sex Marriage, 79 Va. L. Rev. 1419,1441(1993); Morris B. Kaplan, Constructing Lesbianand Gay Rights and Liberation, 79 Va. L. Rev. 1877,1885 (1993). Thoughthe latterthreestudieswere published after1986,the first was readily availableto the Survey authorsand to the Court. Of course,theycould have read the Symposium anytime. The Survey authors asserted that"[t]hroughout was a capital theMiddleAges" sodomy crimeequivalent to heresy, JohnBoswell's Survey, supra note 89, at 525-even though Christianity, Social Tolerance, and Homosexuality, six yearsearlier, had made a published strong argument thatcapitalpunishment ofsodomy werelegal and itsassimilation to heresy innovations ofthetwelfth and thirteenth unions centuries, and that before thattime same-sex wereat leasttolerated ifnotactively approved. John Social Tolerance Boswell, Christianity, and Homosexuality: Gay Peoplein Western Era Europefrom theBeginning oftheChristian to theFourteenth 296-302 Century (1980) [hereinafter Boswell's book Boswell, Christianity]. was widely reviewed, eveninthepopular press.See Jean Strouse, Homosexuality SinceRome, Newsweek, Sept.29, 1980,at 79. Boswell's bookreceived a well-publicized American Book Award from theAssociation ofAmerican andwasnamed a "best book"of1980by Publishers, theNew YorkTimesBookReview.Paperbacks: New and Noteworthy, N.Y. Times, July 19, 1981,? 7, at 23; Editors'Choice 1980,N.Y. Times,Nov. 30, 1980,? 7, at 3. To be sure, Boswell's title and nomenclature aroused a great as to whether deal ofcontroversy same-sex relations inpre-modern history canbe described as "gay." ForBoswell's position, seeBoswell, Christianity, supra,at 44 (claiming a that"gay people,"defined as thosewho entertained conscious erotic inclination to persons oftheir owngender, in themiddle existed ages);John Boswell, Revolutions, Universals, and SocialCategories, in Hiddenfrom History: Reclaiming theGayandLesbian Past 17,35 (Martin Duberman, Martha & George Vicinus Chauncey, Jr., eds., 1989) [hereinafter Boswell, Revolutions] (modifying thedefinition of "gay persons" to includethosewhosesame-sex inclinations are not conscious).For an opposing view,see David M. Halperin, generally One Hundred YearsofHomosexuality, in One Hundred Years ofHomosexuality, supra, at 15. Muchlesssubstantial critical efforts were mounted todislodge Boswell'smorecentral claim,thatsame-sex relationships enjoyed wide latitude and even approval throughout Europein theearlymiddle ages. For one suchcritique, see J. Robert Wright, Boswell on Homosexuality: A Case Undemonstrated, 66 Anglican Theological Rev. 79 (1984). EveniftheSurvey authors or theJustices agreed with thereviewers of Boswell's studywho rejected the claim thatthe earlymedieval periodwas a periodof widespread ofhomosexuality, tolerance they should haveunderstood themselves to be under someduty of carerequiring scholarly an explanation ofwhy they tooka contested position. For a discussion on Boswell'slaterresearch on same-sex eroticism in the earlymiddleages in Europe,see Eskridge, at 1451-53. supra, Otherinaccuracies raisedoubts abouttheSurvey as an historical source.The problem of all same-sex equating conduct throughout history withgayidentity is addressed at length in thisPart;foran argument thatslippages ofact and identity should be understood to pervade thehistorical record, see Halley,supranote54. Here I willdetailonlysomeinaccuracies the Survey's affecting representation of the actual punishments leviedforsodomyin the
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of theact/identity butitshandling however, on theSurvey, reliance prohibit statutes sodomy To claimthatpresent in history. problem and as the colonial sodomyprohibitions as ancient the same thing foris to promote cited, so lovingly White which Justice proscriptions the As following discontinuity.92 historical over radical malsameness
at thestake bymedieval MiddleAges. The Survey reported that"homosexuals" wereburned institutional ecclesiastical courts, Survey, supranote89,at 525,ignoring thewelldocumented handed the relationships ofchurch andstate, inwhich ecclesiastical officials, having convicted, this tradition guilty party overto secular officials tobe punished. Pollock andMaitland derive from theFirstLateranCouncilsof 1179and 1215,whichconcluded that"[tiheimpenitent for due heretic when convicted bytheecclesiastical court is tobe handed overtothelaypower W. Maitland, ofEnglish Law punishment." 2 Sir Frederick Pollock& Frederic The History as a understood Before theTimeofEdwardI 545 (2d ed. 1898). The punishment ofsodomy, there was a speciesof heresy, "was a subject forecclesiastical cognizance, and apparently arm, they ought prevailing opinion that, ifthechurch relinquished theoffenders to thesecular as Pollockand in factsucha punishment was assigned, to be burnt."Id. at 556. Whether inEngland they Maitland note, is another question: "As a matter offact wedo notbelieve that werethusrelinquished." Id. Finally, though the Survey statedthatcapitalpunishment at the stakewas consistently supra, at applied, it was not;lesssevere sanctions weremorecommon.Pollock& Maitland, 556. The Survey Homosexuality and the depends forthispointon Derrick Sherwin Bailey, Western Christian Tradition 146-47(1955). See Survey, supranote89, at 525 n.17. But on Pollockand thisvery on thepassagefrom pointBaileyasserts precisely theopposite: relying in England who Maitland quotedabove,Baileyconcludes that"as a matter of factpersons for officials were guilty ofhomosexual actswere not... relinquished" bytheChurch to secular supra,at 556-57). capitalpunishment by burning. Id. at 147 (citing Pollock& Maitland, increased Morerecently, James A. Brundage has concluded thattheseverity ofpunishment during the thirteenth century, but thateven thenthe sanctions variedwidely.JamesA. Brundage, Law, Sex,and Christian Society in Medieval Europe472-73(1987). Ecclesiastical orders, and sanctions included fasting and other asceticdisciplines, expulsion from religious therequirement a bishop. thatpenance be madenotbefore an ordinary confessor butbefore in escalating Id. To be sure,the municipalities provided forothercorporal punishments, and hanging or severity as the middleages progressed: some alternatives werecastration concludes that, hanging by "'the virilemembers.'"Id. (citation omitted).But Brundage thelatemedieval they were rarely during period when these severe sanctions became available, horrendous invoked: young offenders had to payfines, and "[c]aserecords showthat themost rape[,] statutory punishments were reserved for particularly vicious cases,suchas homosexual and thatordinary offenders weremore likely to be whipped, fined and exiled." Id. at 534-35. For all theseverity sodomy oftheavailable sanctions, theactualsocialpractices ofpunishing werevarious. In sum, ofsodomy into theSurvey didno onea service byseeking tocramtheentire history a single mold. 92 The processwas described by Oliver WendellHolmes, Jr. as a "verycommon phenomenon": The customs, In the beliefs, or needsofa primitive time establish a ruleor a formula. course ofthecenturies thecustom, belief, or necessity disappears, buttheruleremains. The reasonwhichgave riseto therulehas beenforgotten, mindsset and ingenious themselves to inquire howit is to be accounted is thought for. Someground ofpolicy
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discussion ofsodomy's in Georgia various the definitions willindicate, history ofsodomy showsa startling variation in thekinds ofphysical actsdeemed to be sodomitical. Moreover, evenwhenthecondemned actand thedegree ofcondemnation arethesamein twoinstances, the identities which theact is supposed to demonstrate, and which bring theact under disapprobation, havediffered sharply: sodomy has been objected to notbecauseofthesexualbutthe political personality ofits of supposed performers;93 notfortheerotic butthereligious identity thosesaid to have done it.94And sodomy maynotbe inflected by
of,which seems toexplain itandtoreconcile itwith state ofthings; andthen thepresent theruleadaptsitself to thenewreasons on a which havebeenfound forit,and enters newcareer.The old form receives a newcontent, and in time eventheform modifies itself to fit themeaning which it has received. OliverW. Holmes, Jr., The Common Law 5 (photo.reprint, DoverPublications, Inc., 1991) (1881). 93 James A. Brundage, The Politics ofSodomy: Rex v. PonsHughde Ampurias (1311),in Sex in the Middle Ages 239, 243 (JoyceE. Salisbury that the ed., 1991) (concluding prosecution of CountPons HughbyJames II of Aragonoffers "another episode. .. in the political use ofsodomy as an instrument ofroyal as wellas ecclesiastical power");Brundage, supranote91,at 473 (finding that, in thirteenthand fourteenth-century the"charge Europe, ofsodomy became a more or lessroutine ofpolitical ingredient and socialinvective justwhen secular penalties for homosexual practices were becoming markedly more savage.... [I]fthese charges also had somefoundation in fact, thatwas a convenient Alan Bray, coincidence"); Homosexuality inRenaissance England 37 (2d ed. 1988)(arguing that early Stuart accusations of homosexual conduct actually targeted "theCourt-theextravagant, overblown, parasitic Renaissance Court");B.R. Burg, Ho Hum,Another Work oftheDevil:Buggery and Sodomy in EarlyStuartEngland, 6 J. Homosexuality 69, 77 (1980/81)(specialedition of Journal entitled Historical Perspectives on Homosexuality, J.Licata & Robert Salvatore P. Petersen eds.) (concluding from a survey ofseventeenth-century sodomy prosecutions in England that thedecisions to prosecute same-sex conduct and to impose severe for it wereusually penalties taken only"whenpublicfigures wereinvolved and political motives werepresent"). 94 Consider an argument totheLordsassembled inLondon in 1631to try Mervyn Touchet, Earl ofCastlehaven, for sodomy andother offenses. Anticipating Castlehaven's defense to the sodomy charge thattheessential element ofpenetration was unproven against him,theLord Steward asserted that: As to [thecharge ofsodomy] there is no other Question, butwhether it be Crimen Sodomiticum penetrations, whether he penetrated theBody,or not;to which I answer, theFifth ofElizabeth, setsitdowningeneral Terms, andubiLex nondistinguit, ibinon distinguendum [where thelaw does notdistinguish, let there be no distinction made]; and I know youwillbe cautious howyougivetheleastMittigation to suchabominable Sins;for when oncea Man indulges hisLust,and Prevaricates with hisReligion, as my Lord Audleyhas done,by beinga Protestant in the Morning, and a Papistin the Afternoon, no wonder if he commits themostabominable Impieties; forwhenMen forsake their God, 'tisno wonder he leavesthem to themselves. The Tryaland Condemnation ofMervin, Lord Audley Earl of Castle-Haven., At Westminster, Aprilthe5th1631.,For Abetting a Rape uponhisCountess, Committing Sodomy with his Servants, and Commanding and Countenancing theDebauching ofhis Daughter (1699),
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identities at all: it may be a speciesof bad act simpliciter, or be factors thatdo not involve deemedbad becauseof othercontextual all The Courtsubmerges identities.95 the articulation of contested
reprinted in SodomyTrials 12 (RandolphTrumbach ed., 1986). Sir EdwardCoke, in a roughly contemporaneous synthesis ofBritish law,stated that penetration (butnotnecessarily emission) was then an essential element offelony Partof sodomy.Edwardo Coke,The Third theInstitutes oftheLaws of England59 (London,E & R. Brooke, Bell-Yard1797)(stating that"there mustbe penetratio thatis, resin re"). Personhood thusfunctioned to redefine in Castlehaven's sodomy case,butit was religious, notsexual, personhood thatwas decisive. 95 A substantial proportion ofthehistorians ofsexuality thatsodomy hold,with Foucault, could not be about sexual personality before the late nineteenth because sexual century personalities did notexistbefore then. See, e.g.,Halperin, supranote91, at 15; Goldstein, supranote75,at 1086-89.Evenwithout theFoucauldian claim, however, substantial passages ofsodomy's history exhibit more concern for actsthan James whoagrees identities. Brundage, with Boswell, see supranote91,that homosexual persons wereimaginable to medieval minds, nevertheless concludes that most doctrinal worries aboutsodomy noton theobligation focused to procreate buton the"unnatural" use ofsex organs.Brundage, supranote91, at 212-13, 241, 286-87. This act-basedconception allowed "sodomy"to includeheterosexual or homosexual anal intercourse, fellatio, or cunnilingus; intercrural sex; sexualcontacts with andevenmasturbation animals; andtheuseofmechanical for sexual instruments pleasure. Id. Indeed, regulation ofsodomy imagined as themisuse ofthebodythusoccasionally included regulation of heterosexual, vaginal intercourse performed a tergo, withthemanbehind the woman. Id. at 161,367,473. If theprohibition of heterosexual, vaginal intercourse "more canino"is aboutidentity at all, id. at 286,it is aboutgenerating a distinction between human and animalidentity. See PeterBrown, The Body and Society: Men, Womenand Sexual Renunciation in EarlyChristianity 432 (1988). The treatment ofpotentially procreative intercourse as theequivalent ofsodomy in recurs Massachusetts' colonialrecords.RobertF. Oaks has gathered on a revealing materials sodomycase, tried in Massachusetts in 1641. Robert F. Oaks, Defining Sodomyin Seventeenth-Century Massachusetts, 6 J. Homosexuality 79 (1980/81)(specialeditionof Journal entitled Historical Perspectives on Homosexuality, Salvatore J. Licata & Robert P. Petersen eds.). The defendants wereadultmen,charged withrepeatedly in vaginal engaging intercourse withtwo youngsisters, one of themonly sevenyearsold. Id. Because the defendants refused to admit penetration, however, they couldbe tried on an accusation only of inmasturbatory having engaged contacts with thegirls ("contactus etfricatio usquead seminis effusionem sine penetratione or "contact and friction the emission of producing corporis" semenwithout penetration of the body"). Id. at 80. Massachusetts thenhad a capital prohibition of sodomy thattracked, wordforword, thedefinition given in Leviticus: "'If a man lyethwith mankinde, as he lyethwith a woman,both of themhave committed " See id. at 79 (quoting abomination[.]' Leviticus 20:13). The legalquestion was whether the defendants couldbe capitally punished thisprovision. under The defendants wereseverely punished butnotputto death, as they wouldhavebeenifthe judgeshad beenconfident thatthesodomy ban applied.Oaks,supra, at 81; 2 Records ofthe Governor and Company of the Massachusetts Bay in New England12-13(Nathaniel B. Shurtleff ed., Boston,WilliamWhite1853). The problem thatvexedthejudges,and the ministers from other states whom they consulted, seems to havebeenthelackofpenetration. See 2 John Winthrop, The History ofNewEngland from 1630to 1649, at 55-58(James Savage ed.,Boston, Brown & Co. 1853)(reporting Little, that most oftheministers consulted advised
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itsfundamental rights these discontinuities, proposing, as thebasisfor throughout Western history. holding, a uniform history ofsodomy notas a history of sodomy That history, by default, is necessarily White variousacts,but as an act. But becauseof the way Justice are always implicitly availframed thequestion before him, identities able as a rhetorical resource: "such conduct"can alwaysescape its acts and recapture itsreferprovisional meaning as a setof physical said to be its characteristic perenceto the"homosexuals" who are formers.96 Indeed, if it does not-if sodomy remainsan act on a disattributable to any and all persons-theCourt'sreliance courseof acts endorses of the veryheterosexual the condemnation so hardto exclude from thequesconduct which theJustices worked tionon review. In a pioneering Anne B. Goldstein exposed article on Hardwick, in thustrapped themselves the way in whichthe majority Justices depends pervasively on their own logic.97My reading ofHardwick but diverges not onlythecontent, Goldstein's, from it by critiquing butthemethod ThoughGoldstein very deftly oftheCourt'shistory. in their recognition catchestheJustices own doublebindby forcing thatthe Court'srationale heterosexual sodomy, cannotdifferentiate she does so by invoking objectively ascertained history a positivistic, of sodomy.98 To insiston such an accountof sodomy'shistory
thatthesodomy ban did notapply, apparently because"there mustbe suchan act as must make theparties oneflesh")(emphasis added); William Bradford, Of Plymouth Plantation 1620-1647, Appendix X (SamuelE. Morison ed., 1967)(printing letters from three ministers concluding thatthe sodomy statute did applybecausepenetration was not crucial). Oaks somehow concludes from theserecords that"manyof theresponding ministers clearly and understandably equated with 'sodomy' male-male sexualactivity andfound itdifficult toapply theterm to [this] case" becauseit involved heterosexual contacts. at 80-81;see Oaks,supra, also Jonathan 24041 (1992)(concluding Goldberg, Sodometries was that therapeofthegirls notsodomy becauseit was notfound to be between maleand maleor maleand animal).As Nan Hunterconcludes her own review after of thiscase, Oaks and Goldberg seemto be mistaken. See Hunter, supranote43, at 533-34. The moreprobable inference from the records, andtheonedrawn byHunter, is that sodomy wouldhavebeeninterpreted to include what we would now call heterosexual child molestation and/orstatutory rape if legally sufficient proof ofvaginal penetration had beenavailable. 96 Compare Justice White's cagey declaration that"Proscriptions against that conduct have ancient 478 U.S. at 192,with roots," Hardwick, Chief Justice Burger's blunt more statement that"Decisionsof individuals relating to homosexual conduct have been subjectto state intervention throughout the history of Western civilization."Id. at 196 (Burger, C.J., concurring). 97 Goldstein, supranote75, at 1102-03.
98 Id. at 1081-89.
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characteristics: mostsalient thecrime's from consideration excludes A meta-hisitsvolatility. itsplasticity, itsshiftingness, itsmutability, itspastis reveals thewaysin which better to sodomy torical approach and its present, for, resource of,and a rhetorical alwaysa reflection can exposethe mirroring thatrhetorical thewaysin whichprecisely identity. heterosexual located in, and protecting, hiddenartificer of even morethanexposure Concealment of heterosexual identity, of Hardwick'shistoriography: is the product identity, homosexual the can we detect method thejudicialhistorian's onlyby examining identity.99 sodomy and heterosexual between relationship flickering sodcadences, us in celebratory Burger reminds As ChiefJustice to of whichis a disgrace omyis "a heinousact 'the verymention ""00 Andas Samuel tobe named.' notfit nature,' and 'a crime human in thegoverning eliteof ensconced know-it-all Pepys,a busy-bodied "blessedbe God, I to his diary, London,wrote seventeenth-century is ofthissin,norwhich do notto thisdayknowwhatis themeaning is,not whatsodomy Notknowing theagent norwhich thepatient."101 its notacknowledging it accurately, namingit at all, notdescribing is Obscurity profile. ofitshistorical parts are all important presence, itssocialeffects. it attains is, a meansbywhich partofwhatsodomy more Hardwick posture.After and outdated Pepys'is nota quaint to a sodomy ofone'sownvulnerability ignorance thanbefore, acutely "102 Hardofunknowing. a "privilege is a socialprivilege, prosecution less capamarkedly identity ofhomosexual wickrenders inhabitants
99 I borrow ofthe theterm "flickering" from DeniseRiley'srelentlessly subtle discussion "Am I ThatName?"Feminism theidentity "woman." DeniseRiley, instabilities thataffect in History 96 (1988). and theCategory of "Women" 100 Hardwick, 4 WilliamBlackstone, (quoting J.,concurring) 478 U.S. at 197 (Burger, Commentaries *215). 101Randolph ofGender and theEmergence The Birth of theQueen:Sodomy Trumbach, from History, supranote91, at 129,131 1660-1750, in Hidden Equality in ModemCulture, 4 SamuelPepys,The Diary of SamuelPepys209-10(RobertLatham& William (quoting manuals which on twelfth-century penitential reports Matthews eds.,1971)(1663)). Brundage in questioning aboutthesematters. penitents adviseconfessors "to be exceptionally careful in confession was to alludeto unnatural notedthathisownpractice Robert ofFlamborough ideasthat had to avoidgiving penitents terms, inorder sexonly in themost vagueandgeneral omitted). to them."Brundage, supranote91, at 399 (footnote notalready occurred 102 See Sedgwick, v. United 364 is Stewart States, example supranote10,at 4-5. Another enforcement sought to makea discriminatory A.2d 1205(D.C. 1976),in which thedefendant in statute resulted D.C.'s facially neutral sodomy claimbyadducing that Washington evidence Id. at 1207. The claim thanheterosexuals. a higher of homosexuals incidence of arrests from "thelackof disparities to result found enforcement nevertheless failed becausethecourt
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it more peculiarly on and confers ble of retaining this privilege, has identity. Butas longas actsdiscourse inhabitants ofheterosexual sexesis sodbetween persons ofthedifferent legitimacy, and sodomy immutheir blithe identity can find omy,inhabitants ofheterosexual that the of act and identity nitystripped away. The instability and majority Justices deployedin Hardwickthus both protects aboutsodomy Heterosexual reasoning exposes heterosexual identity. thatinstability. is, ultimately, aboutmanaging holdrights to base itsfundamental The Supreme Court'sdecision historiograofsodomy madesodomy's ingin Hardwick on a history a point that is management, phy a crucial means of instability ofsodomy misrepresentation ofthehistory exemplified bytheCourt's Burger's opinions in Georgiaitself. White's and Chief Justice Justice law at common thatsodomy was a crime concluded with composure in 1784,Georgiaadopted thecommon law ofEngland.103Yet when, seeking to fix exactly resists arguments Georgian sodomy persistently whatit was,and when. is uncertain. As ofGeorgia's prohibition Eventheoriginal moment statutory ban Goldstein points out,Georgiadid notadoptan explicit on sodomy until1816or 1817;1?all Georgia didin 1784was to adopt "'the common laws as and of such of thestatute laws of England, "105 Severe in force.' wereusually difficulties wouldhaveconfronted their claimthat madeanyeffort to substantiate theJustices had they itcannot be conthisprovision sodomy.First, encoded a law against in crime England: was a common law clusively shownthatsodomy
knowledge by the police concerning heterosexual sodomitic acts." Id. at 1208 (emphasis added). 103 Hardwick, 478 U.S. at 192n.5; id. at 197 (Burger, C.J.,concurring). 104 Georgia's first statutory prohibition of sodomy in 1817. appearsto havebeenenacted Act of Dec. 20, 1817,3 Ga. Sess. Laws 61 ? 35, 62 ? 36, reprinted in OliverH. Prince, A DigestoftheLaws oftheStateof Georgia350 (Milledgeville, Grantland & Orme1822). It prohibited "sodomy and bestiality" without defining them.Id. An almostidentical statute apparently was adoptedin 1816,but according to theGeorgiaCourtof Appealsin a 1949 decision, thatstatute never v. State, went intoeffect. See Barton 53 S.E.2d 707,709 (Ga. Ct. App. 1949);Oliver H. Prince, A DigestoftheLaws oftheStateofGeorgia 619 n.* (Athens, 1837). Justice White and Chief Justice Burger missed thisnuance, 478 U.S. at 192 Hardwick, n.5 (White, J.);id. at 197(Burger, C.J., concurring); Goldstein didnot. Goldstein, supranote 75, at 1084n.65. 105 Goldstein, supranote75, at 1084n.65 (quoting An Act forReviving and Enforcing CertainLaws Therein Mentioned, 1784,reprinted in R. Watkins, Digestof the Laws of Georgia289 (Philadelphia, 1800)).
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hornbooks exclusively are almost ofthisposition in favor thesources of statecourts and decisions law,106 Englishcommon summarizing as a to the "commonlaw crime"of sodomyor buggery referring statthescopeofa statesodomy fordetermining sourceofauthority statute of a sodomy thepresence Moreover, ute underchallenge.107 civil nonecclesiastical, the timeof HenryV111108-originating from seemto arguethatthecrime oversexualoffenses-would jurisdiction law" ofsodin nature, and thatthe"common statutory was entirely of but a tradition sourceof authority not to a separate omyrefers interpretation. statutory it cannotbe existed, law crimeof sodomy a common Assuming underin thesky:itnecessarily omnipresence as a brooding imagined to preferred whichgenerally in the colonies, wenttransformations law common nonstatutory Anyautonomous, by statute.109 proceed theprocess. neednothavesurvived prohibition ofsodomy's tradition JusWhite and Chief byJustice offered The conclusion so confidently citedbytheCourtor its ofanyevidence lacksthesupport ticeBurger of sodomy to show thata commonlaw prohibition commentators Nor does it seem thistransformation. survived it existed) (assuming was statute sodomy thattheEnglish confidence to claimwith possible of proponents that in 1784.110 Evidence in Georgia in force" "usually Ned Katz Jonathan in support is notdecisive: offer theclaimmight
does reporta sodomy convictionin Georgia in 1734,"1 but it is not
was "usually proscription a sodomy clearhowthatbearson whether in later. in force" 1784,fifty years conthisrecordas "unclear"and tentatively Goldstein describes was in buggery against cludesthat"it appearsthatno proscription
106 Goldstein on thecommon treatises andeighteenth-century a listofseventeenthprovides n.62. supranote75, at 1082-83 law crime.Goldstein, as a common to sodomy law referring 107 See, e.g., Statev. Morrison, 96 A.2d 723, 724-25(N.J. Super.Ct. Law Div. 1953) thanthatgivento it "at interpretation statute a broader to givethestatesodomy (refusing limits placed on v. State,46 S.E. 876, 881 (Ga. 1904) (rejecting common law"); Herring 91,92 Eng.Rep. 91 Fortes Butsee,e.g.,R. v. Wiseman, law writers"). by"common sodomy law wasa common bystatute as prohibited that"buggery" denies explicitly 774 (1716),which to the ofartappropriated is nota term madeuseof[inthestatute], crime: "The word buggery at 93, 92 Eng. Rep. at 775. law." 91 Fortes common 108 25 Hen. 8, ch. 6 (1533) (Eng.),reinstated by 5 Eliz.,ch. 17 (1562) (Eng.). 109See Lawrence 90-93(2d ed. 1985). Law 34-36, ofAmerican A History M. Friedman, 110 See Goldstein, White's to that assertion Justice supranote75,at 1084n.65(challenging effect). I11 Jonathan A New Documentary 133,680 n.67(1983). N. Katz, Gay/Lesbian Almanac:
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force'[in Georgia]at the timethe Bill of Rightswas adopted."'12 await further shouldprobably conclusion Even such a provisional incorpothe 1784statute however.Decidingwhether investigation, law common ofEnglish itsadoption through rateda ban on sodomy Friedlaw. Lawrence of Englishcommon some definition requires in emerged it existed, law, where manarguesthatcolonialcommon and "normsand pracfolk-law" "remembered waysfrom inchoate were-theideoadoptedbecauseofwhothey ticesthatthecolonists logical element."'13Such sources could well have introduced aboutsexualconductthatcame to be underlegal norms incipient for law. And whatare thestandards stoodand appliedas common be prosein force?"Mustthere is "usually thata statute determining To be sure,whenin 1826 evenbe violations? cutions?Must there in Georgia then in force statutes theEnglish compiled Schley William ofsodomy.-14Goldto the 1784Act,he madeno mention pursuant thatsodomy suggesting as evidence compilation steincitesSchley's butit is conceivable in the 1784Act,115 included was not implicitly legislathepositive becausehe thought sodomy thatSchleyomitted to displace in theyears1816to 1817was sufficient tionpromulgated by the 1784Act. statute sodomy of theEnglish anyadoption seeka court Christians, among named fit to be Whenan act is not to have difficulty. be expected might prohibition its first ing to find ofsodmanagement Court's in theSupreme lifting Buttherealheavy In involvesthe scope of sodomy'sprohibition. omy's instability termed whatit steadfastly to specify Hardwick, the Courtrefused to coma right whether it setoutto determine "sodomy."Although in the moments significant at constitutionally was denied mitsodomy is. Throughout Justo ask itself whatan act ofsodomy past,it failed in and evenmoresweepingly ofsodomy, ticeWhite's history footnote and only is always sodomy opinion, Chief concurring Burger's Justice and no as itsequivalent, is treated sodomy" "homosexual "sodomy"; is offered. contacts ofbodily specification problem By thismeanstheCourtcan hide-but just barely!-the thatfellatio,theact forwhich careby Goldstein: withgreat exposed
Goldstein, supranote75, at 1084& n.65. Friedman, supranote109,at 35. 114 William Schley, A DigestoftheEnglish Statutes in Forcein theStateofGeorgia, at vii J.Maxwell1826). (Philadelphia, 115 Goldstein, supranote75, at 1084n.65.
112 113
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Hardwick was in factarrested,116 cannot be shown to havebeensodomyin 1791 or 1868.117Insteadthe Courtinforms us that"Hardwick... was charged with violating theGeorgia statute criminalizing sodomy bycommitting that act with another adultmale..."118 As theCourtproposes to use it,theterm "sodomy" is nota general analytic category thatincludes morespecific bodily acts;it is nota legal fiction devised to describe a setofphysical it is the practices; rather, act: "sodomy" is whatMichaelHardwick did. But Goldstein argues in many that, ofthestates Justice White citedfor hisclaimofhistorical continuity, fellatio was notsodomy at thetimetheBill ofRights and the Fourteenth Amendment were adopted.119 a Considering series ofcases,theearliest dated 1897,holding thatoral-genital contactwas notsodomy then, Goldstein infers thatfellatio had notbeen sodomybefore the cases weredecidedeither.120 The forceof her argument is to break the continuity of sodomyupon whichthe Supreme Court'sreasoning depends foritsconstitutional justification oftheGeorgiastatute "as applied"to Hardwick's act of fellatio. I think thelegalhistorical record is too equivocal to support Goldstein'sclaim at fullstrength, as a positive statement of whathappened. It is notjust thatI hesitate to conclude from cases decided after a certain datethat themeaning they attribute to a statute constitutes a retroactive construction ofitsmeaning before thatdate. More to thepoint, it appears thatthevolatility ofsodomy wheels with particularrapidity aroundthe question whether sodomyincludes oral sex. Once confronted withthe question in the late nineteenth and
Irons, supranote64, at 395. Goldstein was notable to find a single oral sex case decided before 1897and myown research confirms thatthismaybe theterminus a quo. See Goldstein, supranote75,at 1085 n.71,1086n.74. 118 Hardwick, 478 U.S. at 187-88 (emphasis added)(footnote omitted). 119 Goldstein, supranote75, at 1084-85 ("Courtsin at leastsevenofthethirty-two states Justice White found to have 'criminal sodomy statutes in effect in 1868,'explicitly heldthat thesestatutes did notapplyto oral-genital contact.") (footnote omitted) (quoting Hardwick, 478 U.S. at 193n.6). 120 Id. at 1085n.71,1086n.74. Goldstein also argues thatmoststatecourt decisions that did recognize oralsextobe sodomy, didso only after that acknowledging couldnotdo so they without the "commonlaw meaning rejecting of sodomy." Id. at 1086 n.74. Given the uncertainties affecting thestatus ofcommon law sodomy, see supratext notes accompanying 106-11, it maybe thattheseacknowledgements limit theretroactive inferences to be drawn from thecasesin which they appear. One suchcase,Georgia's v. State, Herring 46 S.E. 876 (Ga. 1904),is strikingly equivocal on thispoint, as I attempt to demonstrate below. See infra notes128-30 and accompanying text.
116 117
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though withsharply, statecourts diverged centuries, early twentieth to define in their felwillingness patterns, outgenerating anystriking sodomy refused to interpret courts In somestates, latioas sodomy.121 In manyotherstates, or fellatio.122 statutes to includecunnilingus their statutes were to takethisstep-eventhough courts werewilling withadmirable in scope.123Georgiacourts, different notdiscernably did both. inconsistency, evenwhenthelegislature Georgian sodomy pervaded Uncertainty and connection did define it, in 1833, as "the carnal knowledge in sameunnatuman, or the by man with ofnature against theorder 124 It is onlyin themodemera thatstates withwoman." ral manner futile, voidbutmostoften asserted, havedecidedto putrelentlessly as byadopting, to rest to sodomy statutes125 challenges for-vagueness exact body the languagespecifying Georgiadid in 1968,statutory Wheresuchamendments partsthatmustnottouchone another.126 describgeneral language and highly havenotbeenadopted, obscure alive. The unnameability ofsodomy's keepsthetradition ingsodomy and thespecific ofa definition, language thegeneral gradient between ofmula semantic it,establishes actsdeemed to fallwithin referential term has a thegeneral thatspinson itspost, tivocality: likea roadsign
121 For twonotentirely J. see Robert satisfactory efforts to taxonomize these developments, R. Spence, Evans,Note,The Crimes against Nature, 16 J.Pub. L. 159,162-71 (1967);James The Law ofCrime thehistory ofthe Against Nature, 32 N.C. L. Rev. 312 (1954) (reviewing NorthCarolinastatute).One courtsought between states' but failedto find correlations willingness to include different oralsexwithin forms thescopeoftheir lawsand their sodomy ofstatutory Ct. Law Div. 1953). (The language.Statev. Morrison, 96 A.2d 723 (N.J.Super. courtin Morrison construed thecriminal statute narrowly to limittheproscription against 'crimesagainst nature" and "sodomy" in light of strict to anal penetration of theprinciple construction ofcriminal statutes. Id. at 727-28.) 122 See Morrison, 96 A.2d at 725-26(reviewing thepractices in various states). 123 See id. at 726-27. 124 PenalCode,4thDiv., 1833 Ga. Laws.83 ? 36,reprinted in Oliver H. Prince, A Digest of theLaws oftheStateofGeorgia619 (Athens, 1837). 125 Some courts have held "crime against nature" statutes voidforvagueness. See, e.g., v. State,257 So.2d 21 (Fla. 1971); Harrisv. State,457 P.2d 638 (Alaska 1969) Franklin (upholding sodomy conviction butnotconviction for"crime against nature").The Supreme Court hasheld, however, that suchstatutes arenotvoidfor vagueness. See Rosev. Locke,423 U.S. 48 (1975); Wainright v. Stone, 414 U.S. 21 (1973). 126 See,e.g., 1968amendment: Georgia's "A person commits theoffense ofsodomy when he or submits performs to anysexualactinvolving thesexorgans ofoneperson andthemouth or anusofanother."1968Ga. Laws ? 26-2002 (codified at Ga. Code Ann.? 16-6-2(a) (Michie 1992)).
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of nonce leavingopen the possibility rangeof possiblemeanings, selections amongthem. it in casesarising developed bothas statecourts Georgian sodomy, Courtrepresented it in its and as theSupreme under the 1833statute "bodyparts"statute,127 amended review of Georgia'smorerecently structure mostclearly in the exhibits theinstability ofthismultivocal fellatio-precisely and oralsex,particularly relation between sodomy v.State,128 the theact at issueinHardwick.In its 1904caseHerring thestate's1833Act GeorgiaSupreme Courthad to decidewhether involved theconduct The court, coyly describing included fellatio.129 . .. notperanum, butin evena as an "infamous act . .. committed 130 held that it was criminal sodomy. This more disgusting way," in Georgia,and the courtwas such holding appearsto be the first years concerned Courtwouldbe eighty-two clearly (as theHardwick It worried thatvariofimprovisation. later)to avoidtheappearance the fellatio from ous authorities on theEnglish common law excluded butproceeded to holdthatthelackofa positive definition ofsodomy, becausepresent was of no importance historical basisforitsholding to pastcourts: viewscouldbe imputed ofthe After much ifthebaser form wearesatisfied that, reflection, crimeagainstnature-i.e.,by the abominable and disgusting in thedaysof theearly common law,the mouth-had prevailed was form oftheoffense couldwell have heldthat courts ofEngland ofsodomy.... We in thecurrent definition ofthecrime included in this Hertherefore casewhether think that it made no difference ... hadinmind ofthe crime [when he the oneorthe other form ring made hisperjury convicwhich thefalse accusation ofsodomy upon tion wasbased].131 thespecific language in and ignoring Reading "through" thispassage, whichit is couched, it as a commonwouldpermit one to construe to thespecific "principle" of sodomy place application of a general facts But thatwouldbe fellatio. presented by a novelcase involving of chronological to ignorethe droll, and suggestive, disruption us with passages. The courtpresents sequencein the highlighted
Id. 46 S.E. 876 (Ga. 1904). 129 Penal Code ? 36. 130 Herring, 46 S.E. at 881. 131 Id. at 881-82 (emphasis added).
127 128
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it ofthepaston thebasisofthepresent: to a prediction whatamounts centulaw courts convened common English thatputative determines in Georgia's included oralsexwasthen couldhaveheldthat riesbefore 1833 statute!132 as the ofthepastis treated ofa figure construction Where a present without court can innovate angst.It is buta step past,a traditionalist refuses to invalidate White Justice where to Hardwick, Herring from illegaland stillmakesuchconduct States that "thelawsofthemany 133 The open longtime." havedoneso for a very therefore?] [then? of allowsthisinvestment multivocality by sodomy's created texture firm definitional by unimpeded the present intothepast to proceed but also of a meansnotonlyof maintaining, and thusoffers limits, itsvolatility. hiding, sodomy proA close look at the subsequent of Georgian history present doorbetween in whichtherevolving instances videsfurther the GeorgiaCourt of Herring, and past spins on its axis. After spestatute's v.State134 thatthe1833sodomy Appealsheldin Comer ... in the ... by man and connection knowledge terms-"carnal cific cunnilingus withwoman"-also prohibited same unnatural manner v. by a man on a woman.135 And yet,in Thompson performed Courtheld thatthesame statute the GeorgiaSupreme Aldredge,136 by two women.137This committed did not encompass cunnilingus weresubject thata manand a woman anomaly created theintolerable an act two womencould fordoingtogether to lifeimprisonment was removed, in withimpunity. Decades laterthisanomaly indulge 138 reversed Comer whenthestatesupreme courtin Rileyv. Garrett in Georgia.139 was notsodomy and heldthat cunnilingus heterosexual
132 I am reminded setout that oneofhisstudents would ofmydissertation advisor's anxiety to writeabout Wordsworth's influence on Milton. Wordsworth's epic The Preludewas published in 1850, Romantic Writers within months ofhisdeath. English posthumously 169, 212 (David Perkins ed., 1967). Milton hisfirst published epic,Paradise Lost,in 1674. John Milton, Paradise Lost:A Norton Critical Edition (Scott Ellegeed.,2d ed. 1993). Onceonehas readthem both, itis hardtoprevent as an Wordsworth's nineteenth-century poemfrom acting influence on Milton's one. seventeenth-century 133 Hardwick, 478 U.S. at 190(emphasis added). 134 94 S.E. 314 (Ga. Ct. App. 1917). 135 Id. (quoting the 1833statute). 136 200 S.E. 799 (Ga. 1939). 137 Id. at 800. 138 133S.E.2d 367 (Ga. 1963). 139 Id. at 370.
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None of thesedecisions resolves the problem of whether Georgian sodomy included oral-genital in 1868,whentheFourteenth contacts Amendment was adopted. What happenednext points more directly to the inextricable of thepresent involvement in sodomy's five past. Within yearsafter Rileythe Georgialegislature amended the 1833 statute, the issuing presentprohibition on all oral-genital and genital-anal contacts notwithstanding thegender oftheparticipants.1" Thisstatute clearly has the effect of reversing Rileyand Aldredge.But whatdoes this changetellus aboutthemeaning of the 1833 Act? Does it tendto provethatfellatio and cunnilingus werealwaysalreadysodomyin or thatthelegislature Georgia, hasjustnowaddedthem to theroster of sodomitical acts? The legislative history notonlyfailsto answer these questions butalso reproduces theHerring court's relaequivocal tionsbetween present and past. The legislature's stated rationale forthe 1968amendment squints, looking to bothcontinuity and innovation for justification:
Although appearing widely dissimilar to present Georgiaprovisions, the proposalon sodomy in modern substantially restates, language, the prevailing law withrespect to sodomy. Added to thecoverage of theproposal are Lesbianacts of sexual gratification. Theomission ofthese situations has beencommented on adversely bypastjudicialdecisions where thecourt has felt itself obligatedto follow thereading of [the1833statute].14'
Does the new statute substantially restate the old one, or add new actions to itscoverage; and ifthelatter, werethoseactsomitted from theold statute becauseofitsnarrow readscopeor becauseofnarrow ings conferred on it by grudging courts? The legislative history answers noneof thereally interesting questions aboutthe 1968Act, and thusnoneofthecrucialonesaboutthe 1833Act.142
140 1968Ga. Laws ? 26-2002 (codified at Ga. Code Ann. ? 16-6-2(a) (Michie 1992) ("A personcommits the offense of sodomywhenhe performs or submits to any sexual act involving thesex organs ofone person and themouth or anusofanother.")). 141 Ga. Code Ann.Ch. 26-20(1968) (Committee Notes). 142 The most relevant canonsof statutory interpretation cutbothwaysas well. First, the canonists tell us, "any material changein the language of the original act is presumed to indicate a changein legalrights," so that"it is presumed thattheprovisions addedby the amendment were not includedin the original act." IA NormanJ. Singer, Sutherland Statutory Construction ? 22.30 (4th ed. 1985) [hereinafter Sutherland]. Theyalso tell us, however, that no purpose to change thelaw "is indicated bythemere fact ofan amendment of
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shifting judicialinterpretathe subsequent The Herring decision, created inferences by and thecontradictory tionsofthe 1833statute, thatthe 1833 any assumption all undermine the 1968 amendment at any it was adopted, when determinate meaning statute had a single of its fool's entire progress one time thereafter, or over the ofsodomy in thehistory Thatis,these moments (non)reformulation. in Georgiathreaten has a history. theidea thatsodomy itbygiving Goldstein tames ofsodomy is a problem. The volatility willsupthantherecord historical transformation sodomy a clearer sodextreme. It exploits Courtgoesto theother port. The Supreme dis- and reby eliding the acts intowhichsodomy omy'svolatility differences are internal The centrifugal forces ofsodomy's aggregates. theCourt there within thefield oftheCourt'sdecision, eventhough the does notexplicitly theonlycoherence mention them.Ultimately, buton interactsdiscourse, depends noton itsexpress Courtcan offer of of persons as bearers onlyimplicit, invocation mittent, and often sexualidentity. sodomy, Court's coherence to theHardwick Whatgives definitional and makespossible its legally crucialequationof past withpresent as soddefined (fortheclassesofconduct prohibitions, is notconduct but thepersonof the homosexual.The Court's omy are mutable) on a less obviousfocuson apparent focuson acts,thatis, depends covertlysupplies a persons. Its strictact-basedtraditionalism White homosexual personwho has always(Justice transhistorical andwhoalonecan beentherealtarget oflegalcondemnation implies)
an ambiguous provision," id., a principle of interpretation thatmight applyif the explicit naming of bodypartsis seenas an effort to makeless ambiguous the 1833 terms "carnal knowledge and connection against theorder ofnature."PenalCode ? 36; see supranote124. Moreover, the canons of statutory interpretation continue, "the timeand circumstances surrounding theenactment of theamendment mayindicate thatthechangewrought by the amendment was formal only-thatthelegislature intended merely to interpret theoriginal act." Sutherland, supra,? 22.30. Such "timeand circumstances" maybe supplied by the Georgialegislature's relatively swift actionafterthe Riley decisioncame down: "If the amendment was enacted soonafter controversies aroseas to theinterpretation oftheoriginal act,it is logicalto regard theamendment as a legislative interpretation oftheoriginal act-a formal change-rebutting thepresumption ofsubstantial change." Id. ? 22.31. Of course,reciprocal cancellation is a feature of statutory interpretation under the recognized interpretive canons. See Karl Llewellyn's celebrated send-up of thecanons:Karl N. Llewellyn, Remarks on theTheory ofAppellate Decisionand theRulesor CanonsAbout How Statutes AreTo Be Construed, 3 Vand.L. Rev. 395,401-06(1950). My argument here concerns theparticular effect ofthis indeterminacy in thecontext ofsodomy statutes andtheir historiography.
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of thevastarray graspoflogicalcoherence thetentative unite within sorts ofconduct whichthe and ofdifferent statutes different sodomy Courttreats as thesame. ofactsdisplays discourse express holding's The fundamental-rights opposed in equally crucialbut diametrically identity heterosexual acknowlfleetingly only theJustices noticeably, andmost ways. First, is the identity But second,heterosexual identity. edge heterosexual to. appearing decidethecase without theJustices which from location oflogicalconas a failure criticizes thatGoldstein dynamic The very can also history ownpositivist in their theJustices sistency thattraps of rhetorical resilient and suppleform as a peculiarly be described theJustices' makespossible identity in whichheterosexual activity, that By insisting ofjudicialrestraint. as theexemplars self-fashioning ofact and thatas suchit is identical buta species is nothing sodomy playsno thathis decision Whitepretends Justice to itself overtime, to merely defers he that of sodomy, role in the history intervening actsand bodily as a case aboutmere aboutit. Framed pastdecisions purHardwick identities, political relentlessly contested, not messy, as it is aboutacts outofpolitics.Inasmuch to taketheJustices ports to majority of deference is a gesture ruling their and not identities, even that they so far ofneutrality posture their Theycarry sentiment. of"sodprohibitions criminal whether from deciding claimto refrain 143 arewiseor desirable." homosexuals in particular, omy.. . between say,evenhandedly are,they they animus, Far from acting on anti-gay theyclaimbe equally identities; to all sexual-orientation indifferent consenting between sodomy a view"on whether lawsagainst without Whilethefundamental . .. arewiseor desirable."1" in general adults of acts,ultion a discourse reliance withits express holding, rights and definiglaring and homosexuality on homosexuals confers mately view, from disappear and heterosexuality tiveidentities, heterosexuals and taketheJustices withthem.
143 144
Hardwick, 478 U.S. at 190. Id.
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2. RationalBasis Review I didn't orninth "From upuntil the time I wasinthe eighth grade, really like girls, wasn't interested inthem.... If I had[had]a counwas have convinced selor who predisposed in that way, hecould easily me:'You're oneofus. Welike guys.'" -Will Perkins'45 "QUALIFIED, COMMITTED, AND ... MORE LIKE YOU!" candidate for -Advertisement for Wayne Jacobs, MaineHouseofRepresentatives, Fall,1990.146 In itsfundamental rights holding, theHardwick Courtpursues an act-based approachthatbothdistinguishes itself from and depends uponan identity-based approach.The identity thatdoes theworkis thatofthehomosexual, he or she definitionally limited to thesodomy does. In theHardwick a symmetridecision's basisholding, rational cal but opposite pattern appears:here,the explicit justification for refusing MichaelHardwick's claimis therhetoric ofidentity; a rhetoric of acts actually underlies thatlogic;and theimplied actoris the heterosexual sodomite of thewhole whoseinvisibility is thelinchpin argumentative structure. The rationalbasis holdingin Hardwickis nothingless than astonishing: Even ifthe conduct atissue here isnot a fundamental right, respondent asserts that there must be a rational basisfor thelawandthat is none there inthis caseother than the presumed belief ofa majority oftheelectorate inGeorgia that homosexual sodomy is immoral and unacceptable. Thisis saidto be an inadequate rationale to support thelaw. Thelaw,however, is constantly based on notions ofmoralandifall lawsrepresenting ity, essentially moral choices areto be
145 Dirk Johnson, "I Don't Hate Homosexuals," N.Y. Times,Feb. 14, 1993,at AlO (quotingWill Perkins, head of Colorado for FamilyValues and leadingproponent of Colorado'sAmendment 2). 146 CampaignLiterature (on filewiththe Virginia Law ReviewAssociation).Jacobs' in Maine'sDistrict opponent 91, Representative SusanFarnsworth, was publicly known to be a lesbianand was a leadingproponent of a bill seeking to includesexualorientation as a prohibited ground ofdiscrimination in Maine'sHumanRights Act. Telephone Interview with Maine Representative Susan Farnsworth (Sept. 13, 1993). Jacobsurgently deniedthatthe sticker bumper to Farnsworth's referred sexualorientation, to Farnsworth's but,according staff members, thatis nothowmany voters construed it. Id. Farnsworth went on to winthe contested seat with60% of the voteand is now in herthird term in the Maine House of Representatives. Id.
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invalidated underthe Due ProcessClause, the courtswill be very busyindeed.Even respondent makesno suchclaim,butinsists that shouldbe majority sentiments aboutthe morality of homosexuality thatthe and are unpersuaded declared inadequate.We do notagree, be invalidated sodomy on thisbasis. lawsofsome25 States should 147
This is the core of the decision's of reasoning representation about sodomy, as it probesforthe popularpurpose-thepublicchoice thatthesodomy statute reflects. That publicchoiceis a moralone: the "moralchoice[]" to regard "homosexual sodomy[as] immoral and unacceptable."''48 the Indeed,thismoraldecisionrunsbeyond discourse of acts right intotheheartof identity: Georgia'ssodomy statute is said to arisefrom and be rationally justified by "majority .99149 sentiments aboutthemorality ... An attempt ofhomosexuality tojustify a facially neutral sodomy statute byinvoking theimmorality of homosexuality be said to lack theminimum might indiciaof reatheinterlocked soning.Tracing ofthisconstruction ofacts meanings forhomosexual and heterosexual identity, however, can make this passagemakesenseofa grim kind. Justice White in partas an act of crafted therational basisholding in which ventriloquism, Hardwick (designated "respondent") is given thelinesoftheAttorney General ofGeorgia.It was MichaelBowers, not MichaelHardwick, who claimedthatGeorgia'sfacially neutral sodomy statute reflected a rational public disapprobation ofhomosexuality.'50 Voicingthisargument through MichaelHardwick allows the Courtto temper its attribution of truth-value to theclaim:it is a "presumed merely belief."The voiceof official heterosexuality is protected in thiswaynotonlyfrom being exposed as theproponent of a risible claim,butalso from beingrepresented as believing it. Thisprotection ofheterosexual identity allowstheCourt'srational basisanalysis to makesense. The viewthatsodomy is a category of acts undifferentiated by identity, whenviewedin lightof Georgia's statute all suchacts,creates criminalizing unacceptable consequences forinhabitants ofheterosexual identity as theCourtconstructs them. Heterosexual actsare prohibited bytheGeorgiasodomy statute and, notably, byvirtually identical statutes in force whentheJustices renHardwick, 478 U.S. at 196. Id. 149 Id. (emphasis added). 150 Brief ofPetitioner at 34-35, v. Hardwick, Bowers 478 U.S. 186(1986) (No. 85-140).
147 148
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in Washington their dered decision notonly D.C., butalso inVirginia Justices of themajority and in Maryland, where presumably several thatthe Georgia spenttheirmostintimate hours.'5' By reasoning theJustices statute plausibly supports an anti-homosexual morality, even inmasking sodomites engage their ownstatus as potential if they is here immunever stray from theclassofheterosexuals. Invisibility is to interpelnity; and an important partoftherationality ofsodomy late a reasoning heterosexual who responds to thiscall-this "Hey, statehim or her as havinga legitimate, you there!"-designating in seeking ofthiskind. sanctioned interest and maintaining immunity
IV. CONCLUSION
As a conceptual matter, criticism ofHardwick isolates itself byposingthequestions whether theCourt's analysis is morefundamentally from refuted act-based or identity-based, and whether itcan be better an act- or identity-based position. It is the unstablerelationship between act and identity-not the preference of one to the otherthatallowstheJustices is in to exploit confusion aboutwhatsodomy ofhomophobic waysthatcreate opportunities fortheexercise power, from and thatcreatein particular the heterosexual subjectposition whichtheopinionss reasoning issues. Heterosexual identity as it is impliedby the HardwickCourt's rational basisholding is (1) immune from thestigma andvulnerability of sodomyunderstood as a speciesof identities regulation; and (2) of sodomy understood as a subjectto the stigma and vulnerability speciesof acts regulation. It is therefore (3) unstable, provisional, internally volatile-bothsodomitical and not-sodomitical; and (4) able to maintain ofimmuitsappearance ofcoherence and itsstatus nity byremaining invisible. The conceptual complexity ofheterosexual superordination thus producedshouldbe reflected in pro-gay strategic analysis. to exploit Anyattempt therhetorical possibilities created as Hardwickbecomespartof our legal and extra-legal culture and should embrace the multiplicity of strategies adoptedby the Court. Antihomophobic strategy should lookboth to identities and toactsas con'5' D.C. Code Ann.? 22-3502 (1981)(repealed byD.C. Act 10-23 (D.C. Code Supp.1994)) (copyofEnrolled Original on file with theVirginia Law Review Association); Md. Ann.Code art.27, ?? 553-54(1982); Va. Code Ann.? 18.2-361 (Michie1982).
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ceptual locations itis time to recogfor opposition. Morespecifically, nize that further destabilizing the identity is an "heterosexual" important goal thatcan be partly on accomplished by an emphasis acts. The subordinating dynamics that for generate socialprivilege its members willrequire thatwe deal directly withacts rhetoric. To do so, however, thoseofus whoinhabit gayand lesbian identity mustloosenour gripon theseidentities, and admitintothefield of ourself-identification a cross-cutting on acts. setofidentities founded Thisis a grave and dangerous movefora hatedminority rhetorically in a doublebind. Gay men,lesbians, involved and bisexuals must organizeinsistently in aroundtheirstigmatized order identities to remain players inthesocialprocess ofgiving those identities meaning, and in orderto consolidate in a recognizably movement "minority" pluralistic politics.Moreover, as AnneB. Goldstein and MaryAnn Case quitecorrectly in thisvolume, ifgay pointoutin commentaries men,lesbians,and bisexualsdeveloppoliticaland legal strategies emphasizing acts,they openthemselves to attacks insisting on identitieswithrenewed an antisodomy vigor: campaign thatdepended on an allianceof sodomites, bothheterosexual and homosexual, might wellmerely setthestage an anti-gay for thequiesstrategy purchasing cenceof heterosexuals by isolating homosexual sodomy fordistinc152 tively unfavorable treatment. This is simply to say thatno doublebindcan everbe safeforthe player withless power. It is notat all clearas a theoretical matter in a particular whether, situation, thesubordinated party to a double bind shouldcontest the superordinated party's preferred discourse (here, ofactsor ofidentities) byattempting to capture itor byrepairingto theopposed discourse. Butthese provisos do not justify staying whenyour rigid opponent is fluid, or ignoring thewaysin which acts, likeidentities, can be described and deployed in waysthatundermine (evenas they undergird) homophobic rhetoric. In this connection itis important to recallthatthelast two sodomy statutes invalidated by
152 See Anne B. Goldstein, Reasoning A Commentary AboutHomosexuality: on Janet Halley's"Reasoning AboutSodomy: Act and Identity In and After v.Hardwick," Bowers 79 Va. L. Rev. 1781,1804(1993); Case, supranote81, at 1689-93.
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facially repeal were, at the time they were rejected, legislative 153 neutral. and on acts,one material an emphasis from emerge Two benefits heterosexuals, one symbolic.First,it can engageanti-homophobic and queermovebisexual, in gay,lesbian, a placeforthem providing capableofdiversifying ofalliances a range possible and making ments to sodrelationships its multiple by displaying identity heterosexual heterosexual and same-sex.Second,it forces omy-both cross-sex toHardthanks light thatshines, to sharesomeoftheglaring identity bed,and exposing homosexual on theprofane holding, privacy wick's its rationale. gives heterosexuality which invisibly the immunity purshould advocates thatpro-gay enough Thesegoalsareimportant also happens, as it a rigid-and, of expense at the even them sue to identities. unsafe-loyalty
153 The Washington, D.C. statute repealed thisyearwas facially see infra note164 neutral, and accompanying text; theNevadastatute had beenamended to be facially neutral by the samelegislature thatthenrepealed it. See infra notes165-66 and accompanying text.
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APPENDIX
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Foreclosure Political ofPro-Gay Activity

Anti-gay conservatives have advanceda number of proposalsranging from bans on stateor local antidiscrimination and forgay men,lesbians, bisexualsto positiverequirements of state or municipal discrimination against them. Colorado'sAmendment 2, now encodedas part of Colorado'sBill of Rights, provides thatthestateshallnotacknowledge "homosexual, lesbian or bisexual . .. [as] thebasis orientation, conduct, practices or relationships of ... anyminority status, quota preferences, protected status or claimof discrimination."'54 This provision of existing wouldinvalidate a number local ordinances banning discrimination on thebasis of sexualorientation, and wouldrender extinct meaningful publicdebate, at themunicipal or the state level, aboutthepropriety ofsimilar laws. Section 30bis currently subject to a preliminary injunction.'55 An evenmoredrastic initiative, Oregon's1992BallotMeasure9, would have required positive statediscrimination againstgay men,lesbians, and bisexuals. The initiative proposed to amend thestate constitution toprohibit staterecognition of"sexualorientation" in anyantidiscrimination program, to prohibit the use of statefacilities to "promote, encourage, or facilitate homosexuality," andto require all state agencies anddepartments to demonstrate to young peoplethathomosexuality is "abnormal, wrong, unnatural, "156 Although and perverse. Measure9 was defeated at the polls,similar ordinances more recently have passed in severalOregon countiesand towns.157Initiatives similar to Amendment 2 and Measure9 are a growth in anti-gay industry politics, and emphasize the importance of a self-consciously political pro-gay movement.
154
Colo. Const.art.2, ? 30b (1993).
1993). Timothy Egan,OregonMeasureAsks StateTo Repress N.Y. Times, Homosexuality, Aug. 16, 1992,at Al, A34 (reprinting text ofproposed amendment). 157 Timothy Egan,Voters inOregon BackLocal Anti-Gay Rules,N.Y. Times, July 1, 1993, at A10; see also Concord'sAnti-Gay MeasureVoided,S.F. Daily J.,Nov. 17, 1992,at 2 (reporting thatthe courtin Bay Area Network of Gay and LesbianEducators v. Cityof Concord(No. C9105455) invalidated a Concord,California, ordinance local prohibiting antidiscrimination legislation); Citizens forResponsible v. Superior Behavior Court,2 Cal. Rptr.2d 648,650-51, 661 (Cal. Ct. App. 1991)(upholding thedecision oftheCityCouncil of Riverside, California, a ballot that initiative an invalid similar toOregon's Measure 9 proposed exercise ofmunicipal power, and couldnotbe placedon thelocal ballot).
156
155 Evansv. Romer, 854 P.2d 1270(Colo.
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APPENDIX B
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RepealofSodomy Statutes in theUnited States

After a longperiod when judicialrepeal bystate courts seemed unachievable, litigators and courtsare makingheadwayagain. Judicialrepeals in the achieved in New Yorkand Pennsylvania in 1980havebeenfollowed 1990s bysimilar holdings in Kentucky, Texas,andMichigan.158It wouldbe easyto overstate thereachofjudicialrepealin Massachusetts. Massachusettshas two relevant "crime statutes, section34 of title272, prohibiting 159 and section35, prohibiting againstnature," "unnatural and lascivious act[s]."1" Constitutional litigation has generated whatmight be called a judicialrepealonlyofthelatter."16
158 See Commonwealth v. Wasson, that 842 S.W.2d487,488,491-92(Ky. 1992)(holding Ky. Rev. Stat. Ann. ? 510.100 (Michie/Bobbs-Merrill 1990), a homosexualsodomy prohibition, is invalid under state constitutional law); Statev. Morales, 826 S.W.2d201,202, 204-05(Tex. Ct. App. 1992) (invalidating Tex. Penal Code Ann. ? 21.06 (West 1989),a homosexualsodomyprohibition, under the state constitutional of privacy); guarantee Michigan Organization forHumanRights v. Kelley, No. 88-815820 CZ, slipop. at 12 (Mich. Cir. Ct. July 9, 1990)(invalidating Mich.Comp.Laws Ann.?? 750.158, 750.338, 750.338a, and 750.338b(West 1991) as an infringement of privacy rights guaranteed by the state constitution whenappliedto consensual in thehome);Peoplev. Onofre, 415 N.E.2d activity 936, 938-39(N.Y. 1980)(invalidating N.Y. Penal Law ?? 130.00(2)and 130.38(McKinney 1987),proscribing "consensual sodomy" defined to includeall penis-anus and oral-genital as an infringement contacts, offederal constitutional rights to privacy and equal protection; and vacating convictions forsame-sex and cross-sex sodomy), cert.denied,451 U.S. 987 (1981); Commonwealth v. Bonadio, 415 A.2d 47, 48-50(Pa. 1980)(invalidating 18 Pa. Cons. Stat.Ann. ?? 3101,3124 (1973),prohibiting "deviate sexualintercourse" defined to include nonmarital sexualintercourse "peros or peranus,"as beyond thescopeofthepolicepower and an infringement ofstateand federal equal protection guarantees). 159 Mass. Gen. Laws Ann.ch. 272, ? 34 (West1990). 160Id. ? 35. 161 In Commonwealth v. Balthazar, 318 N.E.2d 478 (Mass. 1974), and relatedcases, Massachusetts courts assumed that? 34 and ? 35 are mutually In Balthazar, exclusive. the Massachusetts Supreme Judicial Courtfacedtwo questions of first under? 35: impression whether or notthestatute applied to consensual acts,and whether or notitapplied to fellatio andanilingus. See id. at 479. Finding thestatute vague, thecourt helditto be inapplicable to any private, consensual, noncommercial adult activity. Id. at 481. The courtinvited the to enacta more legislature specific statute governing private conduct (an invitation which has not beentakenup), id. at 480 n.1,481, but it nevertheless affirmed defendant's conviction becausehe had failedto raise the issue of consent.Id. at 481. The Balthazarholding does notapplyto ? 34, prohibiting apparently the"crime against nature."See Balthazar v. Superior Court,573 F.2d 698,700-01(1st Cir. 1978)(distinguishing thetwostatutes), aff'g 428 F. Supp. 425 (D. Mass. 1977) (granting writ of habeas corpus to defendant in Commonwealth v.Balthazar, on theground thatbefore thatdecision was rendered, ? 35 was unconstitutionally vagueas appliedto Balthazar's oral-genital and oral-anal contacts).The Balthazar decisions all extend thereachofjudicialrepealonlyto statutory language as yet unlimited byjudicialdecision.573 F.2d at 702; 428 F. Supp. at 433; 318 N.E.2d at 480.
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Legislative repealproceeded at a healthy pace in the 1970s,underthe influence of the Model Penal Code.162I am unawareof any successful repeal effort during the1980s, when legislatures were busyadopting statutes criminalizing thetransmission ofHIV instead.As many commentators have concluded, someaspects oftheHIV/AIDS crisis madeit difficult to repeal sodomy statutes.163 Two recent successes suggest, however, thatlegislative repealmayonce againbe politically possible.Washington D.C.'s facially neutral statute has beenrepealed bytheDistrict's Council.l" And Nevada'ssame-sex sodomy statute165 was recently repealed-though notuntil it had beenamended to includepublic heterosexual fellatio and cunnilingus.166Note that both repeals involved a statute that, at thetime therepeal votewas taken, prohibitedcross-sex as wellas same-sex conduct. This repealhistory has left in placeonlyfive statutes targetting same-sex sodomyand not cross-sex sodomy,167 but eighteen facially neutralstat-
162 Model Penal Code ? 213.2 & commentary at 364, 366-67(Official Draft& Revised Comments 1980). 163 See,e.g.,Developments in theLaw,supranote34,at 1536-37.For a closeexamination oftranscripts recording debates in an unsuccessful legislative repealeffort undertaken before HIV becamepartof therhetoric of sodomy, see RandyVon Beitel, The Criminalization of Private Homosexual Acts:A Jurisprudential Case Study ofa Decision bytheTexasBar Penal Code Revision Committee, 6 Hum.Rts. 23 (1977). 164 D.C. Act 10-23(D.C. Code Supp. 1994) (copyof Enrolled Original on filewiththe Virginia Law ReviewAssociation). 165 Nev. Rev. Stat.Ann.? 201.190(Michie1992). 166 See NevadaRepeals Sodomy Law,Wash.Times, June 16,1993, at B5 (reporting that the NevadaAssembly had voted to repeal Nevada'ssodomy statute, a same-sex statute which the state senate had amended earlier in thelegislative session to include public cross-sex oralsex); Wash.Post,June Addenda, 18,1993, at A2 (reporting that NevadaGovernor Robert J.Miller had signed therepealintolaw). 167 Ark.Code Ann. ? 5-14-122 (Michie 1987);Kan. Stat.Ann. ?? 21-3501, 3505 (1988); Mo. Ann. Stat. ?? 566.010,090 (Vernon1979 & Supp. 1993); Mont.Code Ann. ?? 45-2101(20), 45-5-505 (1990);Tenn.Code Ann.? 39-13-510 (1991).
anilingus.
Subsequent decisions haveimplied that oralsexis an "unnatural act" within thescopeof? 35. v. LaBella, 306 N.E.2d 813, 815-16(Mass. 1974)(refusing Commonwealth to examine jury charge that characterized cunnilingus as an unnatural v. Deschamps, act);Commonwealth 294 N.E.2d 426, 428 (Mass. App. Ct. 1972)(refusing to challenge classification offellatio as an unnatural act). Thus thesecases have no effect on the scope and enforceability of the commonwealth's bar on any "crimeagainstnature," otherthanto offer forthe support negative inference that the crimedoes not includethe "unnatural" acts of fellatio and
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169 neutral statute, sodomy notonlya facially maintains utes.168Michigan and heterogaymale,lesbian, between distinguishing statutes butalso three may that a term indecency," "gross prohibit The statutes sexualencounters. include fellatio,and apply to acts betweenmen,170to acts between terms these a mananda woman.172Bytheir and to actsbetween women,171 statofthese conduct.Application as wellas public to private statutes apply ofstate a violation in thehomehas beendeclared activity utesto consensual decision.173 lower-court in an unpublished guarantees privacy
168 Ala. Code ?? 13A-6-65(a)(3), 13A-6-60 (1982 & Supp. 1993); Ariz. Rev. Stat.Ann. ?? 13-1411, 13-1412 (1989);Fla. Stat.Annch. 800.02(Harrison 1991);Ga. Code Ann.? 16-62 (Michie1992);Idaho Code ? 18-6605 (1987);La. Rev.Stat.Ann.? 14:89(West1986);Md. Ann.Code art.27,?? 553-54 (1992);Mass.Gen.Laws.Ann.ch. 272,? 34 (West1990);Mich. Comp. Laws Ann. ?? 750.158(West 1991);Minn.Stat.Ann ? 609.293(West 1987);Miss. Code Ann.? 97-29-59 (1972);N.C. Gen.Stat.? 14-177 (1992);Okla. Stat.Ann.tit.21, ? 886 (WestSupp. 1993);R.I. Gen. Laws ? 11-10-1 (1981); S.C. Code Ann.? 16-15-120 (Law. Coop. 1985); Utah Code Ann. ? 76-5-403(1990); Va. Code Ann. ? 18.2-361 (MichieSupp. 1993);Uniform Code ofMilitary 10 U.S.C. ? 925,art.125(1988). Justice, 169 Mich.Comp.Laws Ann.? 750.158 (West1991). 170 Id. ? 750.338. 171 Id. ? 750.338a. 172 Id. ? 750.338b. 173 Michigan Organization v. Kelley, forHumanRights No. 88-815820 CZ, slipop. at 12 (Mich. Cir. Ct. July9, 1990) (invalidating Mich. Comp. Laws Ann. ?? 750.158,750.338, and 750.338b). 750.338a,
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Cross-Sex Sodomy
Heterosexuals areprosecuted for courts havebeen sodomy.Onlymilitary willing to statefrankly thatsodomy heterosexstatutes applyto consensual ual conduct.174But prosecutions ofheterosexual occurwithsome sodomy frequency, and tendto takeone of two forms: thosein whichconsensual sodomy is charged in a case involving as a lesser included offense allegations of forced sexualcontact; and thosein whichconsensual is prosesodomy cutedalone. Frequently chargesof consensual sodomyare made as lesser-included in casesalleging offenses defendants areconsexualassaults; and frequently, victed onlyon theconsensual offense. For example, inSchochet v.State,175 the defendant was charged witha variety of sexualassaultsbut was ultimatelyconvicted only on a chargeof consensual fellatio withthe complaining witness.176 Of course, it is impossible to pierce theopacity ofcourt records andjudicial opinions to determine whether these casesactually voluninvolved fully tary conduct. Given the skepticismthat women encounterwhen ofsexualassault, But complaining somecounter-skepticism is appropriate. itshould be a matter ofdeepconcern to feminists dealing with that problem, thatconsensual sodomy charges and convictions becomeitssolution.And thereis reasonto think thatjuriesmayconvict on charges of defendants consensual sodomy after concluding thatallegations ofthecoercion are not
174 United v. Henderson, States 34 M.J.174(C.M.A. 1992);United v. Fagg,34 M.J. States 179(C.M.A.), cert.denied, 113 S. Ct. 92 (1992). 175 580 A.2d 176(Md. 1990). 176 Id. at 177-78.The state supreme court heldthatthestatute prohibiting "unnatural or perverted sexualpractices," Md. Ann. Code art. 27, ? 554 (1982 & Supp. 1992),did not include consensual, private, noncommercial heterosexual fellatio. Schochet, 580 A.2d at 184; see also Statev. Santos, 413 A.2d 58 (R.I. 1980)(affirming ofdefendant juryacquittal for rape and kidnapping charges butalso affirming conviction on charges oftransporting forimmoral purposes and sodomy); Dixon v. State,268 N.E.2d 84 (Ind. 1971) (affirming defendant's acquittal of charges of rapeand aggravated assaultbutalso affirming of sodomy conviction v. Poe,252S.E.2d 843(N.C. 1979)(affirming State charge); dismissal at closeof ofrapecharge government's case but also upholding jury conviction of defendant forsodomy, the sole remaining charge), appealdismissed, 259 S.E.2d 304 (N.C. 1979),appealdismissed, 445 U.S. 947 (1980); Statev. Elliott, 539 P.2d 207 (N.M. App. Ct. 1975)(invalidating conviction of male defendant on charges of burglary and sodomy; the single judge wishing to hold the statute unconstitutional underthefederal Equal Protection Clause inferred thejury's from failure to convict on a rapecharge "thatthejurors believed theactsdid takeplace,but... withthe consentof the prosecutrix"), rev'd,551 P.2d 1352 (N.M. 1976) (holdingthat application of thesodomy statute to consensual, heterosexual, unmarried conduct does not violate theEqual Protection Clause).
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v. Georgiacase,Moseley In a recent butare fabricated. only"notproven" done just that. thejurymayhave Esposito,177 wife's JamesMoseleyon his estranged In 1988, Georgia prosecuted were charges sodomy no consensual sodomy; chargeof rape and forcible of coercion, deniedanyelement adviceMoseley On his attorney's filed.178 in oral sex withhis wifeat her that he had participated and testified notice to theparand without sua sponte judge,acting The trial request.179 his sodomy.180Explaining on consensual ties,gavethejuryan instruction in oral thefactthat, notwithstanding charge decision to makethesodomy Attorney GenGeorgia's CourtinHardwick, theSupreme before argument wouldbe sodomy formarital statedthata prosecution eral had explicitly the trial judge privacyguarantees,181 barredby federalconstitutional I'm swornto upholdthelaws of the offense. "'It's a criminal explained, "182 in support filed in an affidavit Onejurorlaterstated, stateofGeorgia.' situain a divorce thathe "was the victim of Moseley'shabeas petition, 183 Another at all evidence was no physical jurorstatedthat"there tion." hiswife on hiswife.I thought that there usedbyMr.Moseley wasanyforce thattheyhad votedforconviction set himup."184 Thesejurorsexplained thelaw as itwas readto them.185Moseobliged to enforce felt becausethey in state habeas relief to fiveyears,but laterobtained ley was sentenced 186 proceedings. ofsodomy stand alone,theapplication charges sodomy consensual Where indisinpartners mayoffer statutes neutral that facially concerns lawsraises barmeansof garnering an unsavory heterosexual relationships tegrating
177 178 179 180
No. 89-6897-1 (Ga. Sup. Ct. Sept.6, 1989).

Slip op. at 2.
Id. at 1-2. Id. at 2; see Murdoch, supranote83,at A20; AlmaE. Hill,ACLU EyesTestCase of Man Convicted ofSodomy WithWife, Atlanta Const., July 25, 1989,at Al [hereinafter Hill, ACLU Eyes TestCase]; Alma E. Hill, SodomyDefenseTeam WarnsAgainstHypocrisy, Atlanta Const., Aug. 25, 1989,at Al. 181 Oral Argument in Bowers in Landmark Briefs and Arguments of the v. Hardwick, Supreme 636 (Philip CourtoftheUnited States: Law: 1985TermSupplement Constitutional B. Kurland & Gerhard Caspereds., 1987). 182 Hill, ACLU Eyes Test Case, supra note 180, at Al (quoting CourtJudge Superior William H. Ison). 183 Affidavit ofKarenHaynie, to Relyon Specified Pre-Trial Motionand NoticeofIntent v. Esposito, Affidavits, Moseley No. 89-6897-1 (Ga. Sup. Ct. Sept.6, 1989). 184 Affidavit of Margaret Ann Myers, Pre-Trial Motionand Noticeof Intent to Relyon v. Esposito, No. 89-6897-1 Specified Affidavits, Moseley (Ga. Sup. Ct. Sept.6, 1989). 185 Affidavit ofKarenHaynie, supra note183;Affidavit ofMargaret AnnMyers, note supra 184. 186 Moseley, slipop. at 4-5;see LindaP. Campbell, RulesSpousalSodomy Georgia Judge Legal,Wash.Times, has notbeenofficially Sept.7, 1989,at A6. Thisdecision reported.
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1779
fear case was his wife's of Moseley's element power. One reported gaining she wouldbe unableto her adultery, alleging fordivorce that,if he filed of wasconvicted case,thedefendant In onemilitary obtain childcustody.187 sodomyafterbeing accused (accordingto one consensualheterosexual to find It is notdifficult in sodomy."'88 "partner judge)bya "jilted"former sodomy onlyof consensual are convicted cases in whichmale defendants In one suchcase, relationship. heterosexual committed during an intimate consolidated Courtentertained theArizonaSupreme State v. Bateman,189 and the other marriage within of sodomy a conviction appeals,one from heterosexual couple, an unmarried between of sodomy from a conviction in bothcases notwithcharges could be established and heldthatsodomy a wife v. Henry,191 In Cotner witness' consent.190 complaining standing ofher no allegation making apparently withsodomy, herhusband charged to twoto fourandwassentenced pleadguilty The husband lackofconsent. circuit court.192 federal from habeas relief teen yearsbut laterobtained thenat leastto antiif not to feminist These cases shouldbe disturbing, analysis. homophobic thanitssame-sex has better legalprotection Of course, cross-sex sodomy are far less likelyto be enforced Facially neutralstatutes counterpart. privacylaw is than same-sexactivity.Constitutional againstcross-sex bedof marital in the "sacredprecincts performed too. Sodomy friendlier from rooms''l93is mostoften deemedto be protected though prosecution, grudging joined withincreasingly of thissortof sodomy, nonprosecution conclusion widely accepted ofthis judicialenunciation rules, makes standing 194 Arguments unmarried a rarity. Eisentadt v.Baird195to protect invoking have courts But several somesuccess.196 consensual havemetwith sodomy
187 188 189
191394 F.2d 873 (7thCir.),certdenied, 393 U.S. 847 (1968). Id. at 874-76. 193 Griswold v. Connecticut, 381 U.S. 479,485 (1965). 194 For cases that for havereached thisquestion a specialstatus and explicitly recognized marital sodomy, see,e.g.,Moseley, a right to "marital anddomestic slipop. at 4-5(recognizing privacy"); Buchanan v. Bachelor, a Texasstatute 308 F. Supp.729 (N.D. Tex. 1970)(finding 401 overbroad becauseit appliedto married vacated sub nom.Wade v. Buchanan, couples), U.S. 989 (1971);see also UtahCode Ann.? 76-5-407 married from (1990)(exempting couples a facially neutral sodomy law). 195 405 U.S. 438 (1972). 196 See, e.g., Lovisi v. Slayton,539 F.2d 349, 351 (4th Cir. 1976) (assuming that cert. 429 U.S. 977 (1976);Post constitutional to privacy marital right protects fellatio), denied, v. State, 715 P.2d 1105,1109(Ok. Crim.App.) (holding Oklahoma's neutral statute facially v. as applied 479U.S. 890(1986);State unconstitutional toheterosexual cert. conduct), denied,
192
190Id.
Hill,ACL U Eyes TestCase, supranote180,at Al. 113S. Ct. 92 (1992). United v. Fagg,34 M.J.179,180(C.M.A.), cert.denied, States 547 P.2d 6 (Ariz. 1976).
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refused to holdthat unmarried cross-sex sodomy is protected,197 and at least one court has held that sexual "misconduct" is subjectto regulation notwithstanding themarital status oftheparticipants.198
Pilcher, 242 N.W.2d348 (Iowa 1976)(holding thatfederally guaranteed fundamental rights, including privacyrights, bar prosecution of private, consensual, cross-sex conductof unmarried adults under Iowa'sfacially neutral sodomy statute); see alsoSchochet, 580A.2d at 184 (construing Maryland's faciallyneutralsodomystatuteprohibiting "unnatural and perverted practice[s]" to exclude consensual, private, noncommercial heterosexual fellatio in order to avoidquestion whether federal rights wereinfringed). 197 See, e.g.,Fryv. Patseavouras, No. 91-7240, 1991WL 212246(4thCir. Mar. 6, 1992) (denying habeasrelief to defendant convicted ofconsensual heterosexual sodomy under North Carolina's facially neutral statute); Statev. Santos, 413 A.2d 58, 66-69(R.I. 1980);Statev. Poe, 252 S.E.2d 843,845 (N.C. 1979);Statev. Elliott, 551 P.2d 1352,1353(N.M. 1976). 198 Bateman, 547 P.2d at 9-10.

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Reasoning about Sodomy: Act and Identity in and after Bowers v. Hardwick Author(s): Janet E.

-SenatorStrom Thurmond' DanielC. Richman2

Virginia Law Review

Reasoning About Sodomy

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Reasoning About Sodomy

relational between genders ....

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About Reasoning Sodomy

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. offer same-sexdomestic-partner benefits").

Reasoning About Sodomy

Law Review Virginia

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Reasoning About Sodomy

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Capt.Rivers: Koppel: Capt.Rivers: Koppel: Cmdr.Carde: Capt.Rivers: Koppel: Capt.Rivers:

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Reasoning About Sodomy

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can only be exacerbatedby the insistence of gay theorythat the

About Sodomy Reasoning

ispolitical. Likegender, sexuality

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About Reasoning Sodomy

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Rhetoric Secondary .. Identities Acts

Reasoning About Sodomy

79 Sedgwick, supranote10,at 11. 80 Id.

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Reasoning About Sodomy

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Reasoning About Sodomy

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About Sodomy Reasoning

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Reasoning About Sodomy

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Sodomy About Reasoning

Hardwick, 478 U.S. at 190. Id.

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