by David A. J. Richards. Lawrence: University Press of Kansas, 2009. 232pp. Cloth $35.00. ISBN: 9780700616367. Paper. $16.95. ISBN: 9780700616374.
Reviewed by Miriam Smith, Law & Society Program, Department of Social Science, York University. Email: mcsmith [at] yorku.ca.
This fascinating study of two landmark cases on the constitutionality of state sodomy laws will be required reading for those interested in the right to privacy, lesbian and gay rights, and women’s rights. David Richards, a law professor at New York University, provides a detailed account of the jurisprudence and legal strategizing in these cases. As such, the volume provides vital background for current controversies over lesbian and gay rights in the US, including the current direction of litigation on same-sex marriage in the states as well as the important pending challenges to the federal Defense of Marriage Act (DOMA).
In tracing the history of the jurisprudence around privacy beginning with the GRISWOLD case, Richards links the story of lesbian and gay rights claims with broader social changes such as shifting gender relations, the rise of the women’s movement (both in its residual first wave as symbolized by Planned Parenthood in GRISWOLD and its second wave as represented by the feminist advocates of ROE) and the rise and legacy of the civil rights movement. While most literature on lesbian and gay litigation makes passing reference to other movements, Richards integrates these discussions throughout the volume. At the same time, he also emphasizes the importance of slavery’s legacy in jurisprudential and political debates over the role of the states in abridging the right to intimate life. Thus, one of the strengths of this analysis is its implicitly intersectional approach to exploring the politics and jurisprudence of these landmark cases on state sodomy laws.
After providing this background, Richards moves on to the meat of the volume, the discussion of the BOWERS and LAWRENCE cases, as well as an overview of other key gay rights cases (e.g. ROMER) that occurred between the Court’s refusal to strike down Georgia’s sodomy law in BOWERS in 1986 and its decision in LAWRENCE in 2003 that the sodomy statute of Texas was unconstitutional. For each case, Richards provides a detailed account of the origins and facts, the briefs, the arguments of amici and the oral arguments.
The accounts of the behind-the-scenes politics of the Supreme Court in the BOWERS case are also important. While Justice Powell’s change of heart on BOWERS is well known – Powell initially planned to vote in favour of Hardwick, but then changed his mind, a decision he later famously described as a mistake – the machinations among Powell’s clerks were not known to this reader. Tellingly, Justice Powell had one law clerk who was a Mormon and another who was a closeted gay man. This juxtaposition symbolizes the sociology of lesbian and gay rights in the [*487] US. In fact, lesbian and gay people are everywhere – even in Justice Powell’s office. On the other hand, the strong role of religion in American life also shapes the gay rights debate.
Richards also provides a thoughtful discussion of the implications of LAWRENCE for same-sex marriage. In LAWRENCE, Justice Kennedy, writing for the majority, went to great lengths to state that the judgment would not lead to same-sex marriage. Justice Scalia vehemently disagreed in a typically caustic dissent. Here, Richards’ book comes full circle to the constitutional rights of married couples. Based on the Court’s reasoning in LAWRENCE, he feels that Scalia may well be right in his dissent and sketches out two possible routes by which the Supreme Court could decide that denying the right of same-sex couples to marry (or the recognition of that right in federal law) would be unconstitutional. Given the LAWRENCE decision, it will be difficult for the Court to find the jurisprudential ground to deny the right of same-sex marriage, especially if, as is the case with at least one of the pending challenges to the Defense of Marriage Act, the case is tailored narrowly to the question of federal recognition of same-sex marriages that are already lawful in the states (see GLAD 2009). Richards ends by arguing that “[i]f past is prologue, the long-term consequences of the long overdue decriminalization of gay/lesbian sex in the United States will lead, as European experience shows, to advances in both the areas of antidiscrimination and same-sex marriage” (p.176). I could not agree more.
Richards does not provide a detailed account of the changes to sodomy laws in the states over the period, although he does allude to the importance of the fact that sodomy laws were gradually changed, sometimes through legislative action, even before the BOWERS case. Political scientists might want to consider the broader pathways to policy change over the longer term and the role of other political institutions beyond courts in shifting public policy in this area (see, for example, Smith 2008). Those interested in social movements will want to consult the work of political sociologists such as Malinda Kane (2003; 2007) and Mary Bernstein (2003) who have written extensively on the impact of the lesbian and gay movement in challenging state sodomy laws. Like other books in this series, this text contains a bibliographic essay that roughly follows the themes of the chapters. I find this inconvenient as there is no author list or even page range given for specific sources, even when authors are mentioned in the text.
For political scientists who are interested in the general topic of judicial decision-making, this book also provides an interesting case study. Richards describes LAWRENCE as a BROWN-like decision for lesbian and gay Americans, and, indeed, it also has its PLESSY in the BOWERS decision. Very few high courts reverse themselves as cleanly as did the US Supreme Court in LAWRENCE. More remarkably, this PLESSEY-to-BROWN reversal was achieved with only a 17-year gap between the two decisions. In addition, it is rare for a Supreme Court justice to state that his opinion was a mistake. Yet, this is what Justice Powell said after his decision in BOWERS. This swift [*488] turnabout by the Supreme Court raises questions about how the Court reacts to social change and to shifts in public opinion. There is no doubt that the period from 1986 to 2003 saw a fundamental shift in the role of lesbians and gay men in American society and the open emergence of families headed by same-sex couples with children. From this perspective, the BOWERS-to-LAWRENCE switch might be read as reflecting social change and public opinion, even though the Court itself became more conservative over this period. Because sodomy laws had already been changed in most of the states prior to LAWRENCE, the switch might also be read as an example of Robert Dahl’s 1957 argument in which he argued that the Supreme Court tends to follow the law-making majority (although Dahl excluded state lawmakers from consideration in his article). For those of us who ponder these general questions as well as for those specifically interested in the regulation of sexuality and intimate life, this book is a welcome addition to the literature.
Bernstein, Mary. 2003. “Nothing Ventured, Nothing Gained? Conceptualizing Social Movement ‘Success’ in the Lesbian and Gay Movement.” SOCIOLOGICAL PERSPECTIVES 46 (3): 353-379.
Dahl, Robert A. 1957. “Decision Making in a Democracy: The Supreme Court as a National Policy Maker." JOURNAL OF PUBLIC LAW 6: 279-295.
Gay and Lesbian Advocates and Defenders (GLAD). 2009. “DOMA Means Federal Discrimination Against Same-Sex Couples.” http://www.glad.org/doma/lawsuit/
Kane, Malinda. 2003. “Social Movement Policy Success: Decriminalizing State Sodomy Laws.” MOBILIZATION 8 (3): 313-34.
Kane, Malinda. 2007. “Timing Matters: Shifts in the Causal Determinants of Sodomy Law Decriminalization, 1961–1998.” SOCIAL PROBLEMS 54 (2): 211–239.
Smith, Miriam. 2008. POLITICAL INSTITUTIONS AND LESBIAN AND GAY RIGHTS IN THE UNITED STATES AND CANADA. New York: Routledge.
BOWERS v. HARDWICK, 478 US 186 (1986).
BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).
GRISWOLD v. CONNECTICUT, 381 US 479 (1965).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
PLESSY v. FERGUSON, 163 US 537 (1896).
ROE v. WADE, 410 US 113 (1973).
ROMER v. EVANS, 517 US 620 (1996).
© Copyright 2009 by the author, Miriam Smith.