That’s right, today is the five-year anniversary of the landmark Lawrence v. Texas decision, which declared sodomy laws in the United States unconstitutional. I remember when the decision came down – I was eighteen at the time, and several of my gay male friends had AIM away messages up that said “CELEBRATING.”
Now that I’m a crusty old law student, I’ve studied the case, and I have two major thoughts about it. One, as usual, America is too damned slow on the uptake – before this case, if you plotted the countries with sodomy laws still existing on a map, you’d see countries Africa, the Middle East, the Caribbean, Asia… and us. Now I’m certainly not suggesting that developing nations should be behind the US, or that we’re somehow morally superior – quite the opposite. Those who think that we’re Nation Numero Uno, ready to depart on a civilising mission to “fix” the rest of the world – uh. Uh. Uhhhhh… No. We criticise the human rights records of developing nations while at the same time being by far the worst nation in the “Western world” on human rights and international law. If you aren’t familiar with this stuff, take a look at the major international human rights treaties and see how many the US has signed. You’d be surprised. So no, I don’t think it’s at all strange that it took us this long to strike down sodomy laws, more than twenty years after the European Court of Human Rights said that sodomy laws violate an individual’s right to privacy.
My second thought, however, is optimistic. Justice Kennedy clearly made quite an effort to avoid talking about level of scrutiny or fundamental rights or suspect class or really anything that would give lower courts a clear cue. But what did he do? Well, he cited international authority with approval for the first time in a majority opinion, for one. He also, despite the dicta that this wasn’t to affect laws on marriage, opened up a can of worms. Maybe LGBT folks don’t explicitly form a suspect class yet. Maybe they don’t fall explicitly within the fundamental right to marriage that straight people most certainly enjoy. But there’s an opportunity. We can say that the Court did take a step in that direction, and if LGBT people have the same rights to conduct their intimate affairs in their bedroom that straight people do, then it’s not much of a leap to say that they also have the same intimate sorts of relationships that straight people do, which often culminate (for them) in marriage. By being rather vague in terms of legal principles but at the same time making it clear that he was considering both practices and identity of LGBT people in that case, I think Kennedy did something revolutionary, something even (gasp!) rather European – he acknowledged, in some small way, a positive right to autonomy, the right to live one’s life and conduct one’s intimate affairs as the individual sees fit. By putting these two aspects together he acknowledged that queer people should be protected both in terms of what they do and who they are – that the two are inextricably linked. He could have simply focused on practices, on sodomy itself, but he didn’t. He made it bigger than that. It’s about the real people, in real relationships, who were being hurt by an arcane, stigmatising law. So good job, JK. I don’t always agree with you, but I think you took a leap of courage this time.