"What Gay Studies Taught the Court": The Historians' Amicus Brief in Lawrence v. Texas

Introduction

The historians' amicus brief reprinted here was submitted by a group of ten professors of history to the U.S. Supreme Court as it considered the constitutionality of Texas's "homosexual conduct law" in the case of Lawrence v. Texas. The Court cited the brief in the decision it issued on June 26, 2003, which overturned that law and the rest of the nation's sodomy laws. Although legal observers immediately began to debate the implications of the decision and the merits of its legal reasoning, there is no doubt that it constituted a major victory for the gay movement. Although the two plaintiffs in Texas were not the only ones to face such charges, few consenting adults had been prosecuted for sodomy even before the decision. But by criminalizing homosexual activity, the sodomy laws had effectively criminalized all lesbians and gay men, and opponents of gay rights had regularly used this imputation of criminality in public debates and court decisions to justify everything from the exclusion of gays from the military to the removal of children from the homes of their lesbian mothers. Sodomy laws were an ideological cornerstone in the legal edifice of antigay discrimination.

In declaring those laws unconstitutional, the Court repudiated its decision in Bowers v. Hardwick, then only seventeen years old, which had upheld Georgia's sodomy statute. The Court is generally reluctant to reverse itself so quickly and therefore needed to offer an extensive explanation of why it had done so. To the surprise of the brief's authors, many commentators credited it and two other historically oriented amicus briefs (filed by the American Civil Liberties Union and the Cato Institute) with giving the Lawrence majority the scholarly grounds it needed. The press took notice. "What Gay Studies Taught the Court," ran the headline over the Washington Post article that provided the best analysis of how the historical briefs had influenced the Court's decision. "When Six Justices Changed the Law of the Land, They Turned to Its History," declared the New York Times when it published excerpts from our brief under the subheading "Educating the Court."¹

I suspect that the press exaggerated the importance of our intervention; it is more likely that the Court simply used recent historical scholarship to help explain its decision to overturn Bowers, much as the Warren Court cited the work of social scientists in its 1954 Brown v. Board of Education ruling to explain its decision to overturn Plessy v. Ferguson's doctrine of separate but equal. Even this would be gratifying enough, though, and it was deeply rewarding for historians to see their collective scholarly enterprise contribute to such a momentous decision.

Ahistorical assumptions about the unchanging character both of homosexuality and of hostility to homosexuality had undergirded the Bowers decision. As many observers noted at the time, the majority in Bowers treated Georgia's sodomy law as if it applied only to homosexual conduct, when in fact it also prohibited oral or anal sex between men and women and between married as well as unmarried couples. This astonishing misreading of the statute under review was linked to the majority's misreading of the entire history of sodomy laws as distinctly antihomosexual measures, which Chief Justice Warren Burger, in a famous concurring opinion, claimed had the sanction of "millennia of moral teaching" against homosexual conduct.

His error was not unusual. In the common parlance of the 1980s (and of today), most people, not just the chief justice, assumed that sodomy laws referred only to homosexual conduct, even though most of them did not—and in fact could have been used to imprison millions of happily married heterosexuals.

Our brief sought to correct the historical errors used to bolster the majority's reasoning in Bowers by demonstrating the historical variability of sexual regulation and...