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[http://www.hhrjournal.org/archives-pdf/4065355.pdf.bannered.pdf Daniel Hurewitz: "Sexuality Scholarship as a Foundation for Change: Lawrence v. Texas and the Impact of the Historians' Brief", 2004]


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On  the  last  Thursday in  June  2003,  the  United 
States Supreme Court struck down a Texas state law criminalizing  homosexual  sex,  determining that  the  30-year-old 
law violated the U.S. Constitution. The decision, Lawrence 
v.  Texas, which  affirmed the  right  of  John Lawrence and 
Tyron Garner to  have  sex  at  home,  was  a watershed  moment. The next day, newspapers across the country shouted 
headlines  like  "Gay Rights  Affirmed in  Historic  Ruling" 
and "Decision  Represents an Enormous Turn in  the Law."1

 
Indeed, while  it  is  not  uncommon  for the  nation's highest 
court to strike down state laws and reverse the decisions  of 
lower courts, in this case the court also overturned its  own 
decision  from  17 years  earlier. In  so  doing,  the  court  declared all anti-sodomy laws unconstitutional  and, according 
to  some  observers, articulated one  of  the  most  significant 
human rights decisions in the country in nearly 50 years.2

 
Clearly, the  implications  of  such  a decision  are wide-spread and multi-faceted.  One set  of implications,  though, 
derives from  the  fact  that  the  arguments presented  to  the 
Supreme Court-and  reiterated by the justices in their decision-rested  heavily  on the scholarship of historians of sex- 
uality. The historians' interpretation of the past, and particularly of the changing meaning of sodomy and sodomy laws, 
proved crucial to convincing the justices to go against their 
own precedent. Justice Anthony Kennedy's majority opinion read like  a final paper from a course in  the history of sexuality. Within it,  he  not  only  offered the  accepted academic 
narrative of the history of sexual identities, but he also cited 
several  sexuality  scholars  directly.3


The  decision  demonstrated  the  powerful  way  that  scholars  can  aid  advocates 
working  at  the  frontlines  of  human  rights battles.  At  the 
same time,  though, the decision also raised questions about 
the  implications  of  putting  history  to  work  in  this  way. 
Because jurists draw on history  for different purposes than 
academics, the ramifications of their use of scholarship war- 
rant greater consideration. Toward that end, this  commentary attempts,  first, to lay out how  and why  the  history of 
sexuality  managed to  play  such  a key  role in  shaping the 
Court's decision, and secondly, to highlight  the larger, more 
problematic implications of using scholarship for advocacy.4

 
Importantly, these  questions  about applied scholarship 
have equal relevance for the health fields. Like these historians, many U.S. health professionals had long been opposed 
to  sodomy  laws.  In fact, in  Bowers v. Hardwick,  the 1986 
case  that  the  court  overturned,  both  the  American 
Psychological Association  and the American Public Health 
Association  had tried to bring their expertise to bear on the 
decision.  They  explained to  the  court the harmful effect of 
sodomy  laws,  detailing how  criminalizing  homosexual  ac- 
tivity created a social stigma that was detrimental to mental 
health  and  interfered  with  the  research  and  educational 
campaigns designed  to  combat AIDS.5


This  effort to  bring 
scholarly work to bear on policy decisions is familiar terrain 
to public-health workers. In 1986, however, those health arguments  were  not  enough  to  sway  the  Court.  Thus  for 
health professionals, the Lawrence decision not  only  transformed  how  homosexual  behavior  can  now  be  addressed 
from a health perspective, it also offered a demonstration of 
the  strengths  and weakness  of  applying academic work in 
the legal  arena. What follows  should  therefore be read as a 
case-study  investigation  into  the  broader repercussions  of 
applying sexuality  scholarship in advocacy situations.


In part, the excitement  of Lawrence lay in the fact that 
it overturned the Supreme Court's own precedent in Bowers 
v.  Hardwick,  marking both  the  success  of  gay-rights ac- 
tivism  and  the  possibility  for future  victories.  That  1986 
precedent  was  established  after  a  Georgia man,  Michael 
Hardwick, challenged  the  state  law  that  criminalized  oral 
and anal sex. At  that time,  the  Supreme Court declared it- 
self  "quite  unwilling"  to  "announce.  .  .  a fundamental  right 
to engage in homosexual  sodomy."6 


In Bowers, the justices framed their decision in the lan- 
guage of tradition and history, arguing that history revealed 
a  long-standing  condemnation  and  criminalization  of 
homosexual  activity.  On  behalf  of  the  majority,  Justice 
Byron  White  cited  earlier  cases  indicating  that  the 
Constitution  protects only those rights that are "implicit in 
the  concept  of  ordered liberty"  and  "deeply rooted in  the 
Nation's  history  and tradition."7


Using  either  of  these  formulas,  White  wrote,  any  claim  that  homosexual  sodomy 
should  be  protected  "is,  at  best,  facetious."  Instead,  he 
traced the presence of sodomy laws back to the original U.S. 
colonies  and asserted that "[p]roscriptions against such acts 
have  ancient  roots." In a supporting opinion,  Chief  Justice 
Warren Burger traced them even further, to Roman law and 
"Judeo-Christian moral and ethical  standards."8

 
Using  history  as  their  tool,  then,  the  justices  insisted 
that homosexual  sex had, essentially,  always been  a crime 
and thus could, justifiably, always be treated as one if a state 
so wished. The Bowers decision, while  infuriating to many, 
was thus a stark reminder of the power that historical arguments  could hold in shaping legal arguments in  the U.S. In 
this  country, because judicial rulings rely heavily  on prior 
legal interpretations and because of the Court's emphasis on 
rights that are "deeply rooted in the nation's history and tradition, " a battle over historical interpretation can constitute 
a key argument at the heart of a case. 


Much  changed in  the  17 years  between  the  Supreme 
Court's considerations of Bowers and Lawrence, including 
several  of  the  justices  on  the  Court. The most  significant 
change was  the  dramatic increase  in  the  visibility  of  gay 
men  and women  in American public life,  fueled in part by 
overdue attention to the AIDS epidemic. In the same period, 
sexuality  studies  and gay  scholarship increased greatly as 
well.  The amount and quality of research into the questions 
the  Justices considered in Bowers-particularly  how  much 
and what kind of opprobrium homosexuality received in the 
past-had  multiplied  exponentially.  Indeed,  by  2003 
scholars had produced a  fairly extensive  array of  research 
contextualizing  early sodomy laws and explaining their use 
in regulating many forms of non-procreative sex. If the  justices again wanted to rest an opinion on the "ancient roots" 
of sexuality laws,  there now  existed a bounty  of sources to 
clarify those roots. 


To be certain,  sexuality  scholarship was  already a dynamic  field when  Bowers was decided in  1986.9


In fact, in 
the  1980s historians  of Western sexuality  were  debating a 
host of questions  that were closely linked to Justices Burger 
and White's claims  about the  "ancient roots" of contemporary laws that targeted gay men. One key debate centered on 
whether people had always  viewed  sexual activities  as the 
defining basis of a personal identity, or whether  the notion 
of  possessing  a  "sexual  identity"  was  relatively  new.10

 
Michel  Foucault  and  others  insisted  that  the  idea  of  a 
homosexual  identity  only began to emerge in  the late  19th 
century. Prior to  that,  Foucault claimed,  same-sex  activity 
was viewed  as a sin,  but  the people who  engaged in  same- 
sex acts were not viewed  as essentially  different from their 
peers: sexual behavior was not understood to be the founda- 
tion for a personal identity.11


However, John Boswell argued 
that people who engaged in homosexual activities were seen 
as  having  a  separate identity  much  earlier, at  least  as  far 
back as the  twelfth  century.12


And when Burger and White 
essentially  charged that men convicted of sodomy under the 
most  ancient  laws  were  fundamentally  the  same  as  2Oth-century gay men,  they  were, in  a sense,  offering the  most 
extreme  argument: that  people  who  engaged in  same-sex 
activity  had  always  been  viewed  as  different  and  always 
treated with  scorn.  Therefore,  though  hardly  rigorous in 
their assertions, the  justices' claims  could be viewed  as fitting into  the wider scholarly debates of the  1980s.

 
That  intellectual  climate  had changed definitively  by 
2003. Not  only was  there much more sexuality  scholarship 
in  existence,  but  the  majority of  historians  had  come  to 
share Foucault's position  that sexual identities were socially 
constructed  and that  a  20th-century  homosexual  was  not 
comparable to an 18th-century person convicted of sodomy. 
When the Lawrence case came before the Court, a group of 
10 historians filed a brief in support of Lawrence and Garner 
in order to preclude the Court from again asserting that centuries of  tradition upheld laws  against homosexuals.  They 
set  out  to  make  explicit  that  the  targets of  early sodomy 
laws were not equivalent  to contemporary homosexuals. 
The historians' brief was drafted initially  by University 
of  Chicago  historian  George  Chauncey--in  consultation 
with  the  plaintiffs'  attorneys-and  then  circulated  among 
the other historians who edited it as they saw fit.13


The brief 
ultimately  made two  basic arguments. First, it maintained 
that sodomy laws in  their earlier form did not target homosexual  acts  exclusively.  `"Sodomy,"' the  historians  wrote, 
"was not the equivalent of 'homosexual conduct.''14


Rather, 
sodomy laws covered a variety of homosexual, heterosexual, 
and bestial  sex acts that did not lead to reproduction. Thus 
the  long-standing presence  of  sodomy  laws  did not  mean 
that there was a social  category called "homosexuals" that 
had also long been recognized as a particular class or group. 
The  laws  were  both  broader than  that,  in  criminalizing  a 
host  of sexual  activities,  and narrower than  that, in  recognizing  an identity  in none  of them.  The Texas law  against 
homosexuals,  therefore,  lacked  "a  significant  historical 
pedigree" because "the history of antigay discrimination is 
short, not millennial."15 


Secondly, the historians detailed that short history, contending that U.S.  sex laws  had only  recently been used by 
states  to  target homosexual  activity.  The  period from the 
1930s to  the  1960s,  they  explained, saw  an unprecedented 
wave  of  state  and non-state  discrimination.  Police  closed 
bars  where  homosexuals  gathered; Hollywood  producers 
censored homosexuality  out  of  films;  and the  federal government began driving homosexual men and women  out of 
the  civil  service.  "Discrimination  on  the  basis  of  homosexual  status,"  the  brief insisted,  "was a powerful but unprecedented development  of  the  twentieth  century.16


In 
fact,  the  Texas law  in  question  in Lawrence, written  onto 
the books in  1973, was  a product of that development.17 


The impact of the  historians' analysis was plainly  evi- 
dent when the lawyers presented their oral arguments to the 
Court in March 2003.18


Again and again, the  justices  chal- 
lenged  them  with  claims  about  history.  Early on,  Chief 
Justice  William  Rehnquist  interrupted  the  attorney  for 
Lawrence and Garner to assert, "certainly, the kind of conduct  we're  talking  about here has  been  banned for a long 
time."  Justice Antonin  Scalia insisted  that  "if you  have  a 
200-year tradition of a certain type of law ...  the presumption  is  that  the  State  can  within  the  bounds  of  the 
Constitution  .  .  .  pass  that  law."  When  the  attorney  for 
Texas  later  explained  that  homosexual  activity  was  only 
specifically  criminalized  in  that  state  in  1973,  Justice 
Stephen  Breyer suggested,  "the  issue  here  doesn't  have 
much  of  a  longstanding  tradition  specific  to  this  statute, 
does  it? "19


History  stood  clearly  at  the  center  of  the  debate. 
That  the  majority of  the  justices  embraced the  histo- 
rians' contentions  in  the Lawrence decision must  be recognized as a success  for the gay-rights movement  and for historians of sexuality, who demonstrated the profound impact 
that  their  scholarship  could  have. Without  question,  that 
success merits eager celebration and congratulation. But the 
case, and particularly its application of history, also raises at 
least  two broad questions  for scholars and advocates. 
The  first question  involves  the importance of scholar- 
ship used in judicial proceedings. Because scholars regularly 
frame and make arguments which  other scholars then chal- 
lenge,  the  scholarly  consensus  of  one  decade may be  sub- 
stantially  reshaped a decade or two  later. But what  are the 
implications  when  a historical  argument that has been embraced by  the  courts  to  codify laws  is  challenged by other 
historians' work  ten  or twenty  years later? Is the  Supreme 
Court's justification  for its  ruling also  then  open  for challenge? Or is  there a less  drastic way  for jurists, like  historians and health professionals, to acknowledge and incorporate new  ideas  and new  theories  into  their  reading of  the 
law? 


The argument the historians presented to  the Supreme 
Court is certainly the consensus of the present moment, but 
even now it is not without  its  detractors. Indeed, one  such 
detractor wrote  an opinion  piece  for the  New  York Times 
within  days of the decision, praising the ruling but insisting 
that it rested on a historical account which was a false "evasion" that "slighted the past," and that "laws that penalize 
homosexuality  are, indeed, deeply rooted in  our shared traditions."20


Because Kennedy relied so  heavily  on  the  argument articulated in the historians' brief, having that history 
challenged  on  the  editorial  page  of  the  Times  seems  extremely  troubling. More  than  academic  arguments  are at 
stake: history has provided a foundation for declaring sexual 
rights and freedoms.

 
Yet  there  are reasonable arguments and good  scholarship with  which  to critique the Court's historical reasoning 
in Lawrence. Certainly one could contend, as Justice Scalia 
did in his  dissent,  that while  homosexual  acts were among 
many non-reproductive sex acts included under a wider umbrella  of  sodomy,  same-sex  acts  were  still  quite  plainly 
criminalized.  Similarly, while  Justice Kennedy clearly understood  the  difference  between  the  era  of  early  sodomy 
laws and our own time, his emphasis on the letter of the law 
seemed  to  diminish  a  longer  history  of  homosexual  discrimination.  In stressing  that  "it was  not  until  the  1970's 
that  any  State  singled  out  same-sex  relations  for criminal 
prosecution," Kennedy seemed to lessen  the importance of 
the laws that harmed homosexuals much earlier in the century.21


But should a historian dare to quibble with  Kennedy 
or  the  brief-writing  historians  themselves?  The  political 
stakes are now quite high. 


Historical arguments are, by definition, interpretations, 
and eventually  any analytic  consensus  will  be replaced by 
another. Certainly, with  the  facts of this  case before them, 
conservative ideologues and scholars will  have every reason 
to  try to  hasten  that  replacement, developing a new  interpretation  of  the  historical  record in  order to  justify  a  different judicial decision in the future. Advocates of gay rights 
must  now  hope,  therefore, that  such  a new  interpretation 
somehow  does not  arise, or that when it  does,  other historians find a way  to  defend the  crucial historical  arguments 
that  new  cases  will  require. In  such  a  context,  historical 
work-and  to  a  degree,  contemporary  work-on  homosexual activity, identity, and discrimination takes on an enhanced  political  significance.  To  engage these  issues  as  a 
scholar is now explicitly  to comment  on the foundations of 
law  and public policy: the  future of gay rights and the protection  of sexual health may well  continue  to be bound up 
with  shifting  scholarly debates and interpretations. Such a 
prospect, while  intimidating  to some scholars and inspiring 
to others, demands a heightened level  of self-consciousness 
while mapping the research agendas of scholars of sexuality. 
The  second question that the Lawrence decision  raises 
is  how  gay-rights advocates  should  use  history  when  the 
U.S.  courts rely on history in competing ways.  One goal of 
gay-rights advocates has been  to  obtain a special protected 
status  within  the  court system,  marking gays and lesbians 
as a group likely  to be subject to discrimination  and there- 
fore in need of heightened protection by the courts.22 


In general, U.S.  courts  try to  respect  the  reasoning of legislators 
and not  tamper with  the laws  they write.  If laws  focus  on 
certain protected groups, however, namely racial groups and 
women,  the  courts pay much  closer  attention  and require 
legislators to justify the laws much more cogently. Granting 
gays and lesbians a similar protected status would be a boon 
to  gay-rights advocates in  challenging state  codes  that prohibit  gay adoptions, for instance,  or gay marriages. But one 
requirement for obtaining that kind of protection is  "a history  of  discrimination."23


Herein lies  the  complication:  in 
the context  of protected-status discussions,  a long-standing 
history of discrimination can provide the foundation for judicial  intervention;  at  other  times,  as Bowers made  clear, 
that same history can be viewed as a tradition that warrants 
no judicial interference. A history of mistreatment  could be 
used both ways. 


In Lawrence, the  plaintiffs convinced  the  justices  that 
there  was  not  a  long-standing  history  of  discrimination 
against homosexuals as a specific group of people in order to 
provide the  grounds for overturning Bowers. But doubtless 
attorneys in other cases will want to press the argument that 
homosexuals  have  long  been  discriminated  against  as  a 
group. Will they be constrained by the historical narrative relied  on in  Lawrence? Certainly they  could  find historians, 
like the New York Times writer, who would push the case for 
long-standing discrimination. But what will  it mean for different advocates to be offering varying historical narratives? 
Likely, attorneys and judges will  embrace the historical 
argument that best serves their purposes. To a degree, that is 
what Justice Sandra Day O'Connor did in the Lawrence  case 
when she joined the vote of the majority, but on grounds dif- 
ferent from Kennedy. She rejected the  challenge to Bowers' 
history, affirming that sodomy laws did fall within  the tradi- 
tional  purview  of  states  regulating sexuality.  But  she  also 
embraced a reading of the Texas code, she said, as "directed 
toward gay persons as a class," and therefore evidence of the 
kind of discrimination that  "runs contrary to  the values  of 
the  Constitution  and  the  Equal Protection  Clause. "24


In 
essence,  O'Connor chose  among  the  historical  material, 
using the interpretations that best fit her argument. 


That  she  used  the  historians'  analysis  selectively,  but 
nevertheless  supported the challenge  to  the Texas law, was 
the  best  possible  outcome.  But  it  seems  equally  possible 
that hostile  attorneys could use  the historians' work calculatingly  to  challenge  gay rights  efforts. The  narrative of  a 
"short, not  millennial"  history  of  discrimination,  for instance,  may  well  be  used  to  undercut  a  suspect-class 
claim.25


Thus while  last year's legal-historical argument allowed  for a victory in  the  U.S.  Supreme Court, in  another 
courtroom or in the hands of another attorney that same argument might  set  the  stage for tomorrow's defeat. There is 
little  controlling how historical arguments will be used. But 
putting  even  well-intentioned,  competing  historical  arguments  to work in the legal arena may pave the way for con- 
flicting  judicial opinions. 


How  should  these  concerns  be  viewed  by  scholars 
whose  research about sexuality, or other topics, might have 
advocacy implications? Certainly these  cautions are not intended  to  discourage  historians  or  other  scholars  from 
bringing their  work  into  the  advocacy  arena. In  fact,  the 
courts may well  be the most  exciting  place for scholarship 
to  be used.  It is  clear that Lawrence  has  marked an enomous  shift in sexual rights and sexual health in the U.S. 
But the implications  for doing this  work are quite dramatic,  both for scholars and advocates. While academic de- 
bates  continue  unresolved for years,  Supreme Court cases 
result in decisions  that control American lives  for a genera- 
tion  or two.  They  are powerful; and as academic work becomes  increasingly  intertwined  with  those  outcomes,  it 
will  be  hard to  de-politicize  the  scholarship. At  the  same 
time,  as advocates increasingly bring scholarship into  their 
work,  it  will  be  difficult  to  prevent  the  disagreements 
among scholars from translating into potentially  competing 
advocacy agendas. 


Fundamentally, the  experience of the historians in  the 
Lawrence  case  exemplifies  more  broadly how  scholarship 
and advocacy can affect each other. As  the  scholarship becomes  freighted with  political  meaning, the advocacy arguments  become  tied  to  scholarly  debates.  In  a  sense,  the 
fights within  the  two  seemingly  distinct  arenas merge into 
one. For public health workers, particularly those who  have 
worked on HIV/AIDS, this  overlap of politics  and scholar- 
ship is not new. Indeed, it is a demonstration of the familiar 
complications  involved  in  work  at  the  borders  of  the 
academy and public policy. 


These,  though, are simply  the complications:  the  chal- 
lenge  is  to  do work  that  acknowledges  the  risks  and still 
aims for the greatest impact. 


Acknowledgments 

This  commentary  began  as  a  paper at  the  Columbia 
University  conference, "Sexual Rights: What Can We Show 
and Tell?" in June 2003. The author wishes  to acknowledge 
the  support  of  a  fellowship  with  Columbia  University's 
Program for  the  Study  of  Sexuality,  Gender, Health,  and 
Human  Rights,  funded by  the  Rockefeller  Foundation,  as 
well  as the helpful insights  and comments  of Carole Vance, 
Alice  Miller, Michael  Ravitch,  Phalen Hurewitz,  and  two 
anonymous readers. 


References 

1. C. Lochhead, "Gay Rights Affirmed in Historic Ruling," San Francisco 
Chronicle,  6/27/03; J. Biskupic, "Decision Represents an Enormous Turn 
in the Law," USA  Today,  6/27/03. 

2. R. Perlstein, "What Gay Studies Taught the Court," Washington  Post, 
7/13/03. 

3. One of the cited sexuality historians, John D'Emilio, later wrote that 
"it was  a dizzying, heady moment  for me when  I saw  the  citation  and 
quote from Intimate  Matters  ....  'Oh my god,' 1 thought, 'History really 
does  matter."' J. D'Emilio,  "The Day  the  Supreme Court Quoted My 
Book," History  News  Network,  7/14/03.  Available  at: http://hnn.us/ 
articles/l 563.html. 
214  Vol.  7 No.  2 

4. The implications of historians' participation in U.S. courtroom battles 
has  received interesting  discussion  after historical  work  on  the  cases 
Webster  v.  Reproductive  Health  and Equal  Employment  Opportunity 
Commission  v. Sears,  Roebuck  Company.  See the various "Roundtable" 
essays  in  Public  Historian  12/3  (1990);  A.  Kessler-Harris,  "Equal 
Employment  Opportunity  Commission  v.  Sears,  Roebuck  Company:  A 
Personal Account,"  Radical  History  Review  35  (1986): pp.  57-79;  R. 
Milkman, "Women's History and the Sears Case," Feminist  Studies  12/2 
(1986). 

5. See W. Eskridge, "Hardwick  and Historiography," University  of Illinois 
Law Review  (1999): pp. 631,  680; D.  Ogden  and M. Ewing,  "Brief of Amici 
Curiae American Psychological Association and American Public Health 
Association,"  Bowers  v.  Hardwick,  1985 U.S.  Briefs 140. Both groups 
made similar arguments in briefs for the Lawrence  case. See "Brief of the 
American Public Health Association, et al." and "Brief of Amici  Curiae 
American Psychological Association, et al." 2002 U.S. Briefs 102. 

6. Bowers  v. Hardwick,  478 U.S.  186 (1986), p.  191. The Georgia law in 
fact prohibited oral and anal sex, whether homosexual  or heterosexual, 
and a heterosexual couple had initially  joined Hardwick's challenge. The 
Supreme Court determined, however, that the only issue they would con- 
sider was that of homosexual activity. See W. Eskridge (see note 6) and N. 
Hunter, "Life After Hardwick,"  Harvard  Civil  Rights-Civil  Liberties  Law 
Review  27 (1992): pp. 531-554. 

7.  Bowers  v.  Hardwick  (see  note  6),  pp.  191-192,  citing  Palko  v. 
Connecticut,  302 U.S. 325  (1937), and Moore  v. East  Cleveland,  431 U.S. 
503 (1977). 

8. Bowers  v. Hardwick  (see note 6), pp. 192-193, 196. 

9. Among the key works, see J.N. Katz, Gay American  History:  Lesbians 
and  Gay  Men  in  the  U.SA.,  A  Documentary  (International Publisher: 
New York, 1976); J. Weeks, Coming  Out: Homosexual  Politics  in  Britain 
from  the  l9th  Century  to  the  Present  (New  York: Quartet,  1977); M. 
Foucault, History  of  Sexuality  (New  York: Knopf,  1978); J. Boswell, 
Christianity,  Social  Tolerance,  and  Homosexuality  (Chicago: University 
of Chicago, 1980); J. D'Emilio, Sexual  Politics,  Sexual  Communities:  The 
Making  of  a  Homosexual  Minority  in  the  United  States  1940-1970 
(Chicago: University of Chicago, 1983). 

10.  See E. Stein (ed.), Forms  of Desire:  Sexual  Orientation  and  the  Social 
Constructionist  Con troversy  (New York: Routledge, 1992). 

11. This historical distinction between behavior and identity is similar to 
the  difference health  researchers and educators see between  contempo- 
rary gay men and MSMs (or "men who have sex with men"). While the 
latter do not necessarily view their sexual activities as defining who they 
are as people, gay men  explicitly  see their sex lives  as a core element  of 
their personal identity. Foucault's argument, in a sense, was that prior to 
the  19th century a Western man who had sex with  another man would 
not have had any special identity: he would have simply been a man who 
had  sinned.  M.  Foucault  (see  note  9),  p.  43.  See  also  J.  D'Emilio, 
"Capitalism and Gay Identity," Making  Trouble: Essays  on  Gay  History, 
Politics,  and  the  University  (New York: Routledge, 1992), pp. 3-16. 

12.  J. N.  Katz  (see  note  9) and  J. Boswell  (See note  9). 

13.  Interestingly,  Chauncey's  own  book,  Gay  New  York, made  a powerful 
argument  similar  to  that  of  the  brief,  namely  that  the  social  opprobrium 
attached  to  homosexual  behavior  in  the  second  half  of  the  20th  century 
was  hardly  so  rampant  in  the  first  half.  G.  Chauncey,  Gay  New  York: 
Gender,  Urban  Culture,  and  the  Making  of  the  Gay  Male  World,  1890- 
1940  (New  York: Basic  Books,  1994). 

14. G. Chauncey,  N.  Cott,  J. D'Emilio,  et al., "Brief of Professors of History," 
Lawrence  v. Texas, 2002  U.S. Briefs  102, p. 2. 

15.  Chauncey  et  al.  (see  note  14), pp.  7,  10, 29. 

16.  Chauncey  et  al.  (see  note  14), pp.  13-20,  20. 

17.  Chauncey  et  al.  (see  note  14), p. 29. 

18.  Importantly,  significant  historical  arguments  were  also  present  in  the 
amicus  briefs  of  the  American  Civil  Liberties  Union  and  the  Cato 
Institute. 

19.  Oral  Argument,  Lawrence  v. Texas,  02-102,  pp. 2-3,  37,  39-40.  Scalia, 
who  has  publicly  mocked  the  Court's  decision,  did  so  specifically  on  its 
reading  of  history.  The  ruling,  he  said  to  a group  of  some  800  conserva- 
tive  activists,  "held  to  be a constitutional  right  what  had  been  a criminal 
offense  at  the  time  of  the  founding  and  for  nearly  200  years  thereafter." 
A.  Gearan,  "Scalia  Ridicules  Court's  Gay  Sex  Ruling,"  Associated  Press 
Online,  10/23/03. 

20.  A.  Goodheart,  "The  Ghosts  of  Jamestown,"  New  York Times,  7/3/03. 

21.  Lawrence  v. Texas,  123  S. Ct.  2472  (2003),  p. 2479. 

22.  Advocates  came  closest  to  achieving  this  in  Romer  v. Evans  517  U.S. 
620  (1996)  when  the  Supreme  Court  struck  down  a Colorado  state  con- 
stitutional  amendment  banning  any  legal  protection  based  on  sexual  ori- 
entation.  In that  case,  however,  the  Court  ruled  the  law  discriminatory  at 
the  most  basic  level  and  did not  deem  gays  and lesbians  as meriting  spe- 
cial  judicial  protection.  See E. Gerstman,  The Constitutional  Underclass: 
Gays,  Lesbians,  and  the  Failure  of  Class-Based  Equal  Protection 
(Chicago:  University  of Chicago  Press,  1999) and W. Eskridge  (see note  5). 

23. This  language  is from  the  Ninth  Circuit  Court  of Appeals  in High  Tech 
Gays  v.  Defense  Industrial  Security  Clearance  Office,  895  F.2d 563,  573 
(9th Cir.  1990),  as cited  in  E. Gerstman  (see note  22), p. 28. 

24.  Lawrence  v. Texas  (see  note  21),  pp.  2486-2488. 

25.  Chauncey  et  al.  (see  note  14), p.  29. 

216  Vol.  7 No.  2 

At the time this was first published in HEALTH AND HUMAN  RIGHTS Daniel  Hurewitz,  PhD, was Assistant  Professor  of  History  at  Tulane University.  

Copyright  2004  by  the  President  and Fellows  of Harvard College  and Daniel  Hurewitz. 


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