This paper acknowledges that "[i]t is now commonplace to disparage the Hardwick Justices' performance as historians, though it is less common to specify what was wrong with it''. In an effort to engage in such specification, this paper will first address mischaracterization of history in Bowers, which portrays the historic legal and ecclesiastical penalties of what the Court labels as "homosexual activities" as a continuous, unitary narrative extending from the halls of the Emperors Theodosius and Justinian to the legislative assembly rooms of Georgia and Texas. This illusory perspective portrays the criminalization of sodomy (and therefore the identity of homosexuality itself) as an impossible cultural continuum. The impossibility of this continuum lies not only in its implicit assumption that states and other lawmaking entities throughout history shared the same cultural, moral, religious, and legal principles, but also in its unqualified adoption of the secular state as the successor to religious authority and the seamless secular synthesizing of penitential prohibitions against sexual sin into secular prohibition against sexual crime. By summarizing the legal treatment of such allegedly homosexual behaviors from the Roman Republic to modem America, this paper will not only demonstrate that the Bowers conception of history as a continuum is in reality a series of discrete communal units, but will also show that the confines of this continuum emphasize only the horizontal progression of time, quashing significant differences in the authority of the entities who enact the laws and more importantly in the laws themselves. After summarizing and analyzing the scholarly criticism of historic Bowers blunders, this paper will elaborate upon other broader difficulties with the Bowers decision-difficulties that are characteristic of many homosexual historiographies. The first of these conundrums, the erroneous assumption that sodomy statutes of past centuries were a former species of antihomosexual legislation, arises from the historic implications of the Court's conflation of homosexual status with the act of sodomy. This conflation of homosexuality and sodomy is particularly ironic as Michael Hardwick engaged in oral sex, or fellatio (not the anal sex that is typically defined as sodomy) which was not criminalized in any state until 1879. The second and third of these topics, the collapse of morality into legality and the subsequent collapse of the legal into the social, also necessarily follow from the Court's collapse of status into act. Each of these three conflated concepts-the collapse of sodomy criminal statutes with antihomosexual legislation, morality with legality, and legal principles with social perspectives-will be addressed in the context of the prior historical discussion of legislation prohibiting same-sex activity from Republican Rome to modem America. The paper will then describe how Bowers faulty historiography was not merely a series of uninformed generalizations but a conscious strategy dictated by the Court's originalist platform that was developed to uphold the majority's interpretation of Georgia's anti-sodomy statute. Finally, the paper will conclude by explicating what impact the language of Lawrence v. Texas will have on future constructions of homosexuality and its histories.
Rebuilding the Closet: Bowers v. Hardwick, Lawrence v. Texas, and theMismeasure of Homosexual Historiography,
Rich. J.L. & Pub. Int.
Available at: https://scholarship.richmond.edu/jolpi/vol8/iss1/2