IN a stunning decision, the US Supreme Court struck down laws against homosexual practices. On 26 June 2003, it emphatically and unequivocally reversed an earlier decision by declaring that a Texas law forbidding homosexual sex was unconstitutional because homosexuals had a right to exist free of criminal penalties against their behavior.
The court's boldness was unmistakable. It radically overturned a decision that had upheld prosecution of men engaging in same-sex physical relations within the confines of their home, a decision handed down 17 years ago in a case called Bowers vs Hardwick. "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers vs Hardwick should be and now is overruled," wrote Justice Anthony Kennedy for the majority in the recent decision in the case of Lawrence vs Texas.
Coming on the heels of a political decision of Canadian Prime Minister Jean Chrétien to push for the legalization of "union between same-sex couples" in response to recent court decisions on the subject, the US Supreme Court judgment represents a major and controversial shift in the North American legal landscape. Most political conservatives see any acknowledgement of homosexual rights and tolerance for gay and lesbian relationships as a moral failing and an attack on the family. The American people have moved towards new values more rapidly than might have been thought possible a quarter of a century ago. Recently, a Gallup poll found 60 per cent of Americans supported legalizing sexual relations between adults of the same sex.
Four aspects of the judicial decision are of surpassing interest: the decision itself and its upholding of private homosexual conduct, the concept of personhood underlying the decision, the emergence of a new respect for international precedent, and the embrace of a new historicism as grounds for the judicial system's approach to cultural mores.
First, the decision itself. In technical terms, the court struck down a law making same-sex sodomy a crime. Importantly, the court's decision involved far more than technical considerations. "The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior., and in the most private of places, the home," Justice Kennedy wrote. "The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished by criminals." In other, less elegant terms, the justices decided that adult human beings have a right to enter into consensual intimate relationships, and held that because this is a right, they should not and cannot be punished for the choices they make.
Justice Kennedy took care to point out that the case before the court, which involved two adult men in the privacy of their home, did not involve minors, prostitution, injury to any person, or coercion either manifest or contextual. He used as precedent an important prior decision of the court which had held that safeguarding certain forms of privacy is necessary to freedom, for without privacy the state can invade and ultimately coerce every aspect of a human being's life. (This notion is contested by some conservatives, who rather gleefully point to the fact that the word "privacy" does not appear in the US Constitution.) Justice Kennedy's summation was eloquent: "The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause (of the US Constitution, which states unequivocally that 'no person shall be deprived of liberty without due process of law') gives them full right to engage in their conduct without intervention of the government."
Also of momentous import is the concept of "growth" upheld by the decision: No organism -- neither discrete, like an individual, nor social, like a state -- can remain static. The notion of social growth is a foundation of the Court's rejection of what is called strict constructionism, a conservative position which holds that America's written Constitution means only what it specifically states, and that judges cannot deviate from the strict intent of the authors of the document. On the contrary, Justice Stevens maintained, "Had those who drew and ratified the Due Process Clauses known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight." Many of those manifold possibilities, of course, are only visible when they become actual, precipitated out and coalesced from of the solution of possibility by the intervention of history. The court chose historicity, rather than eternal values, as its basis for deciding the case before it.
This historicity also had a significant personal dimension for the court. Within changing nations, individuals themselves change. To the extent their changes are not dictated by circumstance, all persons have the freedom to shape their existence. The freedom to choose and grow, and not only to speak or worship or assemble, was central to the court's finding. An earlier court decision, cited in Lawrence, had confirmed: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State." To this, the recent decision added, "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." The now-invalidated anti-sodomy statutes "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." The importance of individual autonomy in determining how the self grows and in what fashion its shapes its existence, was upheld by the court -- much to the consternation of those in America who believe that without punitive legal protections, the institution of marriage would wither away. The decision not only upheld personal growth but also affirmed personal dignity.
In what legal observers are calling a new departure for the Court, it recognized the importance of international findings and precedents. Quite contrary to the movement of President Bush, who embraces unilateralism except when he needs a convenient coalition to legitimate American militaristic adventures, the court decision is a landmark in its movement toward a multilateralist approach to jurisprudence. The court's new dependence on international precedent goes against what historians describe as "American exceptionalism", the long-seated national opinion that the USA is a unique society not governed by the same values as other societies.
Certainly one of the most surprising aspects of the Court's reasoning -- the decision itself had been expected, once the Court agreed last fall to hear the case, although neither its definitive clarity nor its arguments had been anticipated -- is its dependence on new modes of writing and conceptualizing history. For the most part, historians work in scholarly and academic environs, far removed from the partisan battles and political watersheds of onrushing societal life. But for more than two decades historians have been doing research on the development of conceptions of gender and the sexual practices of previous eras, and from that research have come some powerful conclusions.
Perhaps the central conclusion is that gender is constructed, socially and historically. What it is to be homosexual or heterosexual, how various sexualities are practiced, which aspects of sexual or gender behavior. are considered socially defining: investigating these and similar questions have reshaped fixed notions that gender and sexuality are immutable and universally valid.
Another important conclusion, arrived at by dint of laborious archival research in texts which document daily life among "ordinary" people, is that there is, and always has been, a real diversity in how individuals in any era experience sex and gender. There is, this research has shown, no one way to "be"; rather, in those areas unregulated by the state (and there are always many beneath the threshold of official visibility) and even in areas where state regulations are uniformly abrogated or violated, individuals fulfill their needs and desires in a multiplicity of ways.
This academic history exerted a profound effect on the Court's decision to decriminalize homosexual acts. The justices, after all, had to come up with reasoning to counter the strong claim made earlier in the Bowers decision: "Proscriptions against that conduct (homosexuality) have ancient roots." Cognizant of these recent historical studies, the justices in the majority recognized that past societies were not as narrowly proscriptive in matters regarding homosexuality as many have claimed. As well, again depending on contemporary historical research, they affirmed the notion that a multiplicity of values and orientations can and do exist in society. "The historical grounds relied upon in Bowers are more complex than the majority opinion indicates. Their historical premises are not without doubt and, at the very least, are overstated."
Still, the decision acknowledged a political and social truth: many strong forces have condemned homosexuality as immoral. The court addressed those condemnations in two ways -- one of which was also profoundly historical.
The first raised the important issue of protecting minority rights. Justice Kennedy asked the question "whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law," only to conclude: "Our obligation is to define the liberty of all, not to mandate our own moral code." (Of course in the majority decision a moral code of growth and dignity is upheld over a moral code which condemns homosexuality outright. No statement of obligation is without its moral dimension.) The majority's position was made much more powerfully, late in the decision, when
Justice Kennedy wrote: "The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack." In other words, individual and minority rights must be respected, even when a majority believes otherwise: the alternative is racial and communal discrimination established by majority plebiscite.
The court also took the historical approach, especially in privileging contemporary history, to address the ascription of immorality to homosexuals. "In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Thus did the Court give great weight to the fact that historians, psychologists, state political processes and indeed the public have come to have different views of homosexuals and homosexual conduct than was the case 50 or even 20 years ago.
In the concluding lines of Justice Kennedy's decision, he wove together the themes of choice and history. The authors of the American Constitution "knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
There is wisdom in those lines. The struggle -- it is always a struggle -- to free human beings from the oppression that shackles them and their aspirations, is ongoing. As the American poet William Carlos Williams wrote late in his life, "the palm goes/ always to the light;/ who most shall advance the light -- /call it what you may!" Advancing the light: In recent days, this seems to be what the Supreme Court in the United States, as well as the courts in Canada, have done by affirming that homosexual persons have the right to shape their own selves and their destiny.