Queer Cheer
The Nation,
July 21, 2003
33 Irving Place, New York, NY 10003
Email: letters@TheNation.com
http://www.thenation.com/doc.mhtml?i=20030721&s=kim
By Richard Kim
The Supreme Court’s sweeping June 26 ruling in Lawrence
v. Texas came almost seventeen years to the day after one of the
darkest moments in the history of the gay movement. The Court’s 5-to-4
decision, in 1986, on Bowers v. Hardwick
was so rife with homophobic invective—effectively naming sodomy as the
criminal act that defines a criminal class of people—that it galvanized a
generation of activists who saw reversing Bowers as the keystone of a
gay rights agenda.
So it was with a righteous sense of historical justice that gay people took
to the streets in pride parades to celebrate the Court’s repudiation of Bowers.
This decision was as much a movement victory as a legal one. Rather than
making the narrow equal-protection argument that most expected, the Court
issued a striking affirmation of gay people’s citizenship, a wholesale
rejection of Bowers, a confirmation of privacy rights as enumerated by
reproductive rights law and, just as important, an elaboration of sexual
rights under the Constitution that could protect sexual dissidents of all
stripes. This far-reaching precedent was made possible by countless political
struggles—feminism, gay liberation, the AIDS movement, queer
activism—against discrimination and state encroachment on what Justice
Anthony Kennedy called the “spatial and more transcendent dimensions” of
personal liberty.
Now, the morning after, gay activists are salivating over the prospect of
using Lawrence to overturn “don’t ask, don’t tell,” endorse gay
parental rights and sanction gay marriage. But if that’s what Lawrence
accomplishes, it will be an unnecessary abbreviation of its most radical
possibilities.
The Court’s decision in Lawrence did not just, as Paula Ettelbrick
of the International Gay and Lesbian Human Rights Commission declared to the New
York Times, “put gay people in the mainstream of society for the first
time,” endorsing them “almost as families, that [are] not seedy or
marginal but very much a part of society.” It went much further. It carved
out a zone of sexual freedom from states’ efforts to “define the meaning
of the [sexual] relationship or to set its boundaries absent injury.”
Indeed, while the Court expressed reservation about recognizing gay marriage,
it forcefully rejected morality as a basis for state regulation of sexuality.
Citing Planned Parenthood of Southeastern Pa. v. Casey, Kennedy argued
that despite the majority’s “profound and deep convictions accepted as
ethical and moral principles,” the law’s obligation is to “define the
liberty of all, not to mandate its own moral code.” As such, Lawrence
ought to be read as protecting all consensual, private sexual relations, not
just those that resemble heterosexual, procreative marriage but those that are
“seedy or marginal.”
Two aspects of Kennedy’s opinion should embolden such an inclusive
interpretation. First is his extensive citation of gay and lesbian scholarship
that advances an anti-identitarian view of sexuality. Such writings hold that
sexual identity is a relatively recent historical phenomenon of the past 100
years or so and places laws that target gays and lesbians, like the Texas
“homosexual conduct” law, within a much longer history of attempts to
regulate sex acts in general. Many of these laws—like those that prohibit
masturbation, public lewdness, adultery and fornication—are still on the
books and make no distinction between gay and straight offenders. It’s
against these laws that the precedent in Lawrence can be applied, which
is what provoked Justice Antonin Scalia’s hysterical dissent. Second,
Kennedy invoked international sexual rights law, used by other countries and
international courts to protect those most vulnerable to sexual regulation and
coercion—most notably, sex workers and HIV-positive people whose private,
consensual sexual relations are under widespread assault.
Of course, none of these sexual rights are guaranteed by Lawrence
itself. Their realization will require diligent and visionary legal activism
and political organizing. Scalia’s dissent was right in one respect: There
is indeed a “culture war” brewing over “social perceptions of sexual and
other morality.” And although some future skirmishes will undoubtedly be
fought in the courts—already law-enforcement officials in Texas and Idaho
have announced their intent to prosecute homosexual sex under a variety of
other laws—let’s not forget where this war’s ground zero is. It’s in
bedrooms and in streets, in bars and parking lots. It’s in these spaces,
both private and public, that we find people diversely engaged in the pursuit
of sexual liberation, something that Lawrence’s affirmation of sexual
liberty protects, but does not, in and of itself, enact.
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