Gay Rights versus Queer Theory WHAT IS LEFT OF SODOMY AFTER LAWRENCE V. TEXAS

TLDR: In the case of Bowers v. Hardwick, the question was not one of sodomy but of intimacy -of certain intimate sexual conduct which the Court did not even specify for the purposes of stating the constitutional issue as discussed by the authors.

Abstract: In 1986, the United States Supreme Court affirmed the constitutionality of a Georgia statute under which Michael Hardwick had been charged with committing sodomy in his home with another male. The majority opinion in Bowers v. Hardwick formulated its task in the following blunt terms: to determine whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy. The answer to that question could of course only be negative. Less than twenty years later, in Lawrence v. Texas the Court endorsed passionately homosexual intimacies and overruled Hardwick. What made this stunning judicial volte-face possible? It is a commonplace of legal advocacy that the framing of a question always already anticipates its answer. In Lawrence, the court effectively changed the question in its framing of the issue: The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. That is, the question was not one of sodomy but of intimacy - of certain intimate sexual conduct which the Court did not even specify for the purposes of stating the constitutional issue. This essay argues that Hardwick nevertheless got the constitutional question right (with some qualifications), even though the Court's answer to the question was obviously disastrously wrong. Admittedly, having been labeled as sodomites under the constitutional regime crowned by Hardwick, it is difficult to resist the Lawrence Court's interpellation of homosexuals as law-abiding subjects who are capable of intimacy and are entitled to respect for their private lives in the name of their dignity as free persons. But the respect and dignity offered by the Court will likely not come free. They will have to be earned, by leading respectable sex lives. The essay first examines the rhetorical and political conditions attached to Lawrence's offer of gay respectability and then turns to Bowers v. Hardwick and the possibility of redeeming its focus on sodomy. In a larger evaluation of the post-Hardwick landscape, it asks whether we have been liberated by the fall of anti-sodomy legislation. And if so, to what? From the perspective of queer theory, how should we view this victory for gay rights?