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Queering the Renaissance

Duke University Press

BOWERS V. HARDWICK: in the Renaissance

JANET E. HALLEY

HISTORIANS queering the Renaissance occupy a particularly auspicious vantage point for probing the social fictions spun by the United States Supreme Court's notorious decision in Bowers v. Hardwick. After all, both Justice White writing for the majority and Justice Burger concurring in his own opinion trace Georgia's statute to the state's reception of English law, positing an unmediated codification of Henry VIII's statute prohibiting buggery and Elizabeth I's reinstatement of it in the criminal law of the United States. The historiography of sodomy proposed by the Supreme Court in Hardwick—one in which sodomy is always and everywhere the same, always and everywhere opprobriated, always and everywhere joined in a purportedly stable equation with homosexual identity—provides an important contemporary context for the essays collected here. It is the purpose of this essay to examine that historiography, and to make some suggestions about how cultural history can contribute to the dis-authorization of the Hardwick opinion and its cultural meanings.

In Bowers v. Hardwick the United States Supreme Court held that.constitutional privacy and substantive due process rights are not violated when a state criminalizes what the Court was pleased to call "homosexual sodomy." Courts, legislators, and executive officials have repeatedly cited this baneful decision to justify the official denomination of a class of homosexuals and its equation with criminalizable sodomy. Several federal courts have held that Hardwick forecloses meaningful equal protection for gay men, lesbians, and bisexuals because sodomy is the "behavior that defines the class" of homosexuals. Others have refused to acknowledge that a gay public employee who comes out of the closet has engaged in First Amendment protected speech, or indeed any speech at all, because to acknowledge gay identity is to admit membership in a criminal class. The Alabama legislature has banned public funding of any student group "that fosters or promotes a lifestyle or actions prohibited by the [state's] sodomy and sexual misconduct laws," relying on the state attorney general's opinion that, under Hardwick, Alabama's sodomy statute—a prohibition of oral/genital and genital/ anal contacts between any unmarried persons—constitutionally prohibits "homosexuality."

In the face of these category implosions equating sodomy with the personhood of individuals identified as gay or lesbian, it is well to recall Jonathan Goldberg's conclusion that "sodomy, 'that utterly confused category,' as Foucault memorably put it, identifies neither persons nor acts with any coherence or specificity. This is one reason why the term can be mobilized—precisely because it is incapable of exact definition; but this is also how the bankruptcy of the term, and what has been done in its name, can be uncovered." Presiding over this regime of incoherence, the Hardwick decision exploits confusion about what sodomy is in ways that create opportunities for the Court's exercise of homophobic power. And yet Hardwick represents sodomy as a self-evident unit of thought, an act rather than many. Indeed, the very logic of the decision depends on a representation of sodomy as immutable, as a historical monolith, the unitary object of an uninterrupted continuity of historical condemnation running forward, according to Justice White's majority opinion, from the date of the Bill of Rights to the date of Hardwick's arrest, running back, according to Justice Burger's concurring opinion, through the "millennia" to the very origins of "Western civilization:'

Two questions, both important for the shared project of the essays collected here, arise from this conjuncture of history making with definitional politics: how did the Hardwick majority manage the definitional relationship between sodomy and gay identity, and how did it deploy history in doing so? The Hardwick Court's historical/definitional practices suggest that the most useful questions for cultural historians to explore may not be precisely the same as the ones that have energized historical examinations of gay, lesbian, and bisexual practices and identities in recent years. I would argue that Hardwick's invocation of legal and cultural tradition can best be critiqued by queer historiography that asks not whether and when gay and lesbian identities and subjectivities became historically available to people who did (or did not) engage in same-sex erotic contacts, but how contests to control the meaning of sodomy have involved shifting, opportunistic, sometimes ontologically coherent and sometimes inchoate deployments of the relationship between act and identity.

As courts of limited jurisdiction, federal courts are constitutionally empowered (they themselves have held) to answer only the specific legal questions that litigants present to them. But what are those questions? The process of framing the question is a second-order constitutive activity, in which the court defines its own power and the context in which (the court hopes) that power will operate. By the time the Hardwick majority framed the question it then proceeded to answer, most of its work of deciding, and much of its work of situating itself in relation to the question it would answer, was done. It's important, then, to describe quite carefully the definitional implications of the question the Supreme Court purported to answer:

The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.

This question has struck many readers as odd, because the Georgia sodomy statute provides that "a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of the other"—that is, it is a facially neutral prohibition of the specified bodily contacts notwithstanding the gender of the actors. Not only is it not limited to "homosexuals": it does not even mention them. To be sure, Michael Hardwick was charged with sodomy after a Georgia police officer entered his bedroom and beheld him engaged in fellatio with another man. But Hardwick raised a facial challenge to the Georgia sodomy statute, alleging that the statute violated rights he held not as a gay man but as a person. The Court attempted to contain that objection by asserting that the record before it was devoid of any actual issue of heterosexual sodomy, and that it would therefore treat Hardwick's claim not as a facial challenge to the statute but as a challenge to the statute "as applied" to Hardwick alone. But as Kendall Thomas deftly observes, the core of Hardwick's claim to standing was his fear that the state of Georgia would develop further facts incriminating him under the sodomy statute, and in raising this claim he nowhere clarified whether those facts would emerge from acts of homosexual or heterosexual sodomy.

By refusing to review the full question before them, the majority justices occluded from the case every trace of felonious heterosexual fellatio, cunnilingus, and anal intercourse. As a result "the homosexual"—"a personage, a past, a case history, a childhood, in addition to being a type of life, a life form, ... a morphology ... [and, in sum,] a species"—looms forward as the subject of judicial knowledge and power. And yet the Court never abandons its simultaneous focus on sodomy—that not-yetsuperseded "category of forbidden acts"—and indeed finally defines the crux of the issue at stake as "such conduct:'

Definitional instability attends the notion of "such conduct" throughout the majority opinions. Are "homosexuals" definitive of "such conduct" or not? The Court remains ready to answer yes or no. Sodomy can receive its definitive characteristic from the "homosexuals" who do it, or can stand free of persons and be merely a "bad act:' As a result the majority justices have enabled themselves to treat sodomy as a metonym for homosexual personhood—or not, as they wish. The question Justice White sets out to answer is thus apparently single but actually multiple: such conduct" represents not a purely act-based categorical system but an unstable hybrid one, in which identity and conduct simultaneously appear as logical alternates and implicate one another.

When Justice White asks whether the Constitution "confers a fundamental right upon homosexuals to engage in sodomy" and then situates his question in a historical tradition of criminalizing "such conduct," then, he not only doubles his analytic focus but represents the resulting duplicity as a historical given. For this reason I would argue that Hardwick cannot be explained by invoking the periodization proposed by Foucault, in his story of how a taxonomy of acts before the nineteenth century was transformed into one of persons thereafter.' Rather, the Court in Hardwick conducts its analysis as though this transformation were somehow not yet complete. It poses a double problem: historically volatile definitions of sodomy operate in a context of two simultaneously available but substantially incommensurable articulations of their significance, sodomitical act and personal identity.

To be sure, the Court's overarching strategy is to represent these complex matters as simple. It represents "such conduct" as a stable, univocal signifier for act(s) that have a monolithic history: the states "still make such conduct illegal and have done so for a very long time." This representation of sodomy as univocal and continuous over time becomes the prerequisite for one of the three crucial holdings in this case, the one rejecting Hardwick's "fundamental rights" claim. Hardwick argued that Georgia had violated a right so fundamental to the relationship between the state and its residents that a federal court must intervene to protect him even though the U.S. Constitution nowhere verbally specifies this obligation. Setting forth the doctrinal analysis under which he would adjudicate this claim, Justice White wrote for the Court that Hardwick could assert no "fundamental right to engage in homosexual sodomy" unless he could show that the liberty he aspired to is "deeply rooted in this Nation's history and tradition." The doctrinal prerequisite for denying Hard-wick's claim is the attribution of an unadulterated historical pedigree to Georgia's sodomy statute.

Here are the lines in which the majority justices make that attribution and defeat Hardwick's fundamental rights claim:

It is obvious to us that [this formulation] would [not] extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. See generally, Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n.9. Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' ... is, at best, facetious.

In the interpretive apparatus Justice White implicitly invokes here, the basic moving parts are two simplifying and unifying claims. Bits of constitutional text can have only the meanings attributed to them at the time of their ratification; and those attributed meanings can be recovered on the premise that no bit of constitutional text would have been ratified if it were in any way inconsistent with the then-existing positive law of the states taken as a whole. The first of these interpretive devices will work only if the Court can represent the right asserted as identical with the right denied by early statutes. And the second will work only if the Court can represent the ratifying intentionality as an agent of authoritarian deference, not only in the sense that it operated as a monolithic social entity, but also in the sense that it necessarily assented in all its acts to the entire corpus of then-existing positive law.

As will shortly become apparent, the broader problems of interpreting criminal sodomy statutes raised by Justice White's authoritarianism are everywhere implicit in the more specifically historical problem raised by his decision to equate past with present definitions of sodomy. Defects in this purportedly act-based history of sodomy appear immediately. Let's assume that the right Hardwick asserted is indeed the right of "homosexuals to engage in acts of consensual sodomy." One would suppose that, in order to determine whether a right to commit sodomy was denied at constitutionally significant moments in the past, one would have to know what an act of sodomy is. But no. Throughout Justice White's footnote history of sodomy, and even more sweepingly in Justice Burger's concurring opinion, sodomy is always and only "sodomy"; "homosexual sodomy" is treated as its equivalent, and no specification of bodily contacts is offered.

The most acute instance of this pattern emerges in the Court's statement of the facts of Hardwick's case. There the Court informs us that "Hardwick ... was charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male:' As the Court proposes to use it, the term sodomy is not a general analytic category that includes more specific bodily acts; it is not a legal fiction devised to describe a set of physical practices; rather, it is the act: "sodomy" is what Michael Hardwick did. But Hardwick was arrested for and charged with engaging in fellatio—and, at the time the relevant constitutional amendments were ratified, sodomy statutes then in effect had not yet been interpreted to prohibit that specific bodily contact.

It would be convenient to argue here that fellatio was not sodomy at the time the Bill of Rights and the Fourteenth Amendment were adopted-1791 and 1868, respectively. This is the argument advanced by Anne B. Goldstein, who infers from certain late-nineteenth- and early-twentiethcentury cases holding that oral-genital conduct was not sodomy then, that it had not been sodomy before either. Such an argument, if it could be proven, would break the continuity of sodomy upon which the Supreme Court's reasoning depends for its constitutional justification of the Georgia statute "as applied" to Hardwick's act of fellatio.

The legal historical record is too equivocal to support that claim—and yet the ways in which it is equivocal constitute an even stronger refutation of the Court's historiography. Fellatio emblematizes the way in which the volatility of sodomy makes it impossible to make provable assertions of its transhistorical continuity even as it creates the possibility of cobbling together simulacra of such proof.

Courts have diverged sharply in their willingness to define fellatio as sodomy. In some states, late-nineteenth- and early-twentieth-century judicial decisions refused to interpret sodomy statutes to include oral-genital conduct. In many other states, courts were willing to take this step—even though their statutes were not discernibly different in scope Georgia courts, oddly enough, did both.

Georgia's sodomy prohibition makes its first unequivocal appearance as a criminal statute in 1817, though that early statute did not define the crime. The first legislative definition, offered in 1833, limited the prohibition to "the carnal knowledge and connection against the order of nature by man with man, or in the same unnatural manner with woman." In its 1904 decision Herring v. State the Georgia supreme court held that that statute prohibited fellatio, coyly described as an "infamous act ... committed ... not per anum, but in even a more disgusting way:' A worried court noted that various authorities on the English common law excluded fellatio from the definition of sodomy, but proceeded to hold that the lack of a positive historical basis for its holding was of no importance because present views could be imputed to past courts:

After much reflection, we are satisfied that, if the baser form of the abominable and disgusting crime against nature—i.e., by the mouth—had prevailed in the days of the early common law, the courts of England could well have held that that form of the offense was included in the current definition of the crime of sodomy.... We therefore think that it made no difference in this case whether Herring ... had in mind one or the other form of the crime [when he made the false accusation of sodomy upon which his perjury conviction was based]

This is almost a prediction of the past on the basis of the present—a strategy familiar to the close reader of the strange time-reversals attempted by Justice White in Hardwick. The present construction of a figure of the past is treated as the past, and emboldens a traditionalist court to commit what it clearly worries is an act of innovation.

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Excerpted from Queering the Renaissance by Jonathan Goldberg. Copyright © 1994 Duke University Press. Excerpted by permission of Duke University Press.
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