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Professor Marc Spindelman
Ohio State University, Moritz College of Law
JURIST Guest Columnist

John Geddes Lawrence and Tyrone Garner are sexual criminals unless the U.S. Supreme Court decides otherwise. Late last March, the Court heard an appeal of their convictions under the Constitution for breaking Texas痴 sodomy law, which makes same-sex sexual activity a crime. Many in the gay community have rallied around them, praying they will win. But the sweeping consensus of gay opinion covers up another closet, one inside the lesbian and gay community, where sexual violence is hidden and discussion about it is silenced. The Lawrence case has, unfortunately, been no exception, leaving this secret closet痴 door firmly closed.

Obviously, whatever expectation of privacy Lawrence and Garner had was thwarted when Texas police entered Lawrence痴 apartment to investigate a weapons report (that turned out to be false) and spied the two having anal sex. Back in 1986, in Bowers v. Hardwick, the Supreme Court rejected a privacy plea in a similar case. Michael Hardwick痴 lawyers had argued to the Court that Georgia痴 criminal sodomy law offended the constitutional right to privacy just as much as other laws that regulated consensual, non-commercial sexual relations in the home did. But Justice Byron White, speaking for the Court, dismissed the privacy argument as ridiculous; it was 殿t best, facetious, he said. Many found the Court痴 opinion to be, in the words of one thoughtful commentator, 都tunningly harsh and dismissive. Even more harsh and dismissive, though, was the concurring opinion of then-Chief Justice Warren Burger, which appeared to endorse Blackstone痴 description of sodomy as 殿n offense of 租eeper malignity than rape, a heinous act 奏he very mention of which is a disgrace to human nature, and 疎 crime not fit to be named.樗

Not surprisingly, a large segment of the gay community had some pretty aversive reactions to Hardwick, concluding that it was not only about the constitutional status of sodomy laws, but that it also made anti-gay animus constitutionally legitimate. Not a few responded to Hardwick as UCLA Law Professor William Rubenstein did: 的 don稚 think about sex when I read Hardwick, and I don稚 think about what sex acts are at issue [in the case]. I think how they hate me. Joining the gay community were預nd are熔ur many liberal (and libertarian) allies who correctly recognized that Hardwick痴 refusal to extend the right to privacy to gays and gay sex imperiled their own (heterosexual) sexual rights. Indeed, although Georgia痴 sodomy law had prohibited sodomy across the board, whether engaged in by homosexuals or heterosexuals, the Court treated the statute as if it were only a same-sex sodomy ban, without providing any principled justification for doing so. This move caused numerous constitutional scholars to maintain that Hardwick undermined the secure foundations of the right to privacy that heterosexuality had formerly been able to take for granted.

In a sense, Lawrence fits the Hardwick rationale better than Hardwick itself did. The Texas sodomy law in Lawrence is expressly written in sex-specific terms, banning sodomy only when two people of the same sex engage in it. This makes it just like the law that the Court manufactured, and then affirmed, in Hardwick.

These are among the reasons Lawrence has become a fountain of hope especially in the gay community. It痴 the perfect vehicle for the Supreme Court to reconsider and to reverse Hardwick. If Hardwick was the case in which the Court toe-kicked gays in the face, Lawrence, some think, may turn out to be the one in which the Court finally recognizes our dignity. Lawrence could be the opinion in which the Supreme Court first respected gays rights to be預nd act揚ay, sexually.

It is thus easy to perceive why some have been enticed by the sweet aura of possibility that surrounds Lawrence. But much more difficult to understand預nd largely unnoticed so far擁s how Lawrence痴 possibilities look to people concerned with inequality between the sexes. From the standpoint of these concerns, Lawrence, and the way it was litigated in the Supreme Court, raises unmistakable danger signs. In particular, it poses the risk that the Court may stake out a constitutional path to gay rights in Lawrence that unwittingly creates a new set of protections for perpetrators of sexual violence. If and when that happens, Lawrence will be more than the case that recognized gay rights. It will be the decision that gave gays their rights at the expense of victims of sexual violence謡omen and men alike. If so, the question becomes this: is there a way to recognize gay rights in Lawrence and avoid injuring victims of sexual violence at the same time?

How have the gay rights arguments in Lawrence come into conflict with the rights of survivors of sexual abuse? In addition to privacy rights, lawyers in Lawrence contend that the convictions and the sodomy law infringe constitutional equality guarantees. Broadly speaking, what unites these privacy and equality claims as presented in the case is a seductively simple proposition: gays are just like heterosexuals. The power of this 斗ike straight idea comes from the presumptive goodness of heterosexuality, a sexual status that is socially sacrosanct and legally protected. If gays are just like heterosexuals, the 斗ike straight notion typically goes, gays should have all the same rights that heterosexuals do, and for the same reasons. The peril here is that heterosexuality and its laws have long rationalized and concealed sexual violence and silenced its victims. Is homosexuality now poised to gain legitimacy by going down this same road?

Praise for heterosexuality surfaces throughout the gay rights Lawrence briefs. One romantic depiction of heterosexual (and by extension, homosexual) 電omestic bliss appears in the brief filed by eighteen of our country痴 leading constitutional law scholars. This Law Professors Brief tells us that: 釘y interfering with the interest gay people share with all other adults in making choices about their private consensual sexual activity, [Texas sodomy law] also interferes with the relationships gay couples develop. For a long time, the Brief goes on to explain, the Supreme Court has recognized how important sexual intimacy is to heterosexuals. And 甜t]his is true, the Brief intones, 吐or gay people no less than for heterosexuals.

Just in case anyone (or anyone who happens to sit on the Supreme Court) should be unaware of the breezy similarities between homosexuals and heterosexuals, the Law Professors Brief details some of the ways that 堵ay people, just like heterosexuals, 吐orm couples and create families that engage in the full range of everyday activities, from the most mundane to the most profound. Gay people, for example, 都hop, cook, and eat together. Who knew? They 田elebrate the holidays together, and share one another痴 families. And they even 杜ake financial and medical decisions for one another[,] and 途ely on each other for companionship and support. In sum, 甜m]any gay couples share 奏he duties and the satisfactions of a common home.樗 In these and other ways, the Law Professors Brief affirms, as do many other gay rights briefs in Lawrence, that homosexuals are just like heterosexuals and, consequently, deserve all the same rights and privileges that heterosexuals have. Guess what: We池e human.

All the same, the ways in which the gay rights Lawrence briefs repeatedly make their 斗ike straight arguments leads a feminist like me to raise his brow. For years now, feminists have exposed the violence of male sexuality and criticized the notion that to be afforded their rights, members of socially subordinated groups傭e they women or gays洋ust be 屠ust like members of socially dominant groups. Such formal equality logic can be預nd often is預 kind of 砥nreason, a cover for social dominance posing as 兎quality that is anything but a way to eradicate social hierarchy. It delivers rights only on the terms that the socially privileged have set. In doing so, formal equality assumes that socially dominant groups謡hether for men, or in Lawrence, heterosexuals耀hould be the standard against which equality claims are judged and equality rights distributed. As legal theorist Catharine MacKinnon has observed: concealed in this approach 妬s the substantive way in which man has become the measure of all things. And this man has, substantively, been heterosexual.

What might this mean for a feminist葉hat is, a realistic蓉nderstanding of the 斗ike straight arguments in Lawrence? Apart from reinforcing the abstract logic that to be equal one must be the same, which makes it harder for all unequal groups to gain equality through law, the 斗ike straight arguments are substantively dangerous when they uncritically embrace and advance the idea that heterosexuality (at least at its core) is all good, all happy, making the legal and social mistreatment of gays, one guesses, an exceptional deviation from heterosexuality痴熔r at least its Constitution痴擁nternal equality norms.

Not so. As feminism has shown, the institution of heterosexuality has hardly been so egalitarian. At its foundation, feminist investigation has revealed, heterosexuality has largely been defined in male supremacist terms葉erms that include both the massive production and the massive denial of the sexual abuse and other violence that women suffer at men痴 hands, along with the sexualized dimensions of the homophobic violence that lesbians and gay men suffer at the hands of heterosexual men. These are some of the not-so-pretty pictures of heterosexuality that, in various ways, the gay rights briefs in Lawrence occlude. Additionally, the upbeat analogy between homosexuality and heterosexuality that the gay rights Lawrence briefs widely purvey also implies that homosexuality, like heterosexuality, should be ignored when it involves sexual injury. It suggests that prohibitions on sexual abuse among gays, like those on sexual abuse among heterosexuals, are of marginal importance within a legal debate about the constitutional right to sex, and really maybe none at all.

These initial concerns with the 斗ike straight arguments are underscored by the gay rights briefs in Lawrence. A number, including the Lambda Legal Defense and Education Fund痴 principal brief, cite approvingly, and none criticize, a case called Powell v. State decided by the Georgia Supreme Court in 1998. In Powell, the Georgia high bench invalidated the state痴 sodomy law葉he same law affirmed by the Supreme Court in Hardwick蓉nder the Georgia constitution痴 privacy protections.

Lambda痴 enthusiasm for Powell didn稚 start with its Lawrence brief. Shortly after the Georgia Supreme Court issued its Powell decision (a case in which Lambda had filed a friend-of-the-court brief urging reversal of the states sodomy ban), Lambda痴 Stephen Scarborough was reported as cheering the decision. 典his, he said to The New York Times, 妬s especially sweet. It 途eally sends the signal to other states [that] may be considering similar challenges that we are in a day and age when the government simply does not belong in bedrooms.

But the victory in Powell was more aptly described as 澱itter sweet迫for reasons that neither Scarborough in The Times nor the gay rights briefs in Lawrence have paused to mention. Anthony Powell, the defendant, was accused of having intercourse and oral sex with his 17-year-old niece against her will. She testified at trial that the sex acts she engaged in with her uncle were forced, that she didn稚 consent to them, and that, during the encounter, she wept. While this was happening, Powell痴 wife, the girl痴 aunt, a month shy of delivering Powell痴 child, was asleep in the next room. Gay rights organizations have scandalously failed to engage these facts. Certainly, the invalidation of Powell痴 conviction was not 甜e]specially sweet for the seventeen-year-old girl who said she was sexually violated.

It is embarrassing that we in the gay community have unqualifiedly heralded Powell as a political victory for gay rights. No less disturbing, however, is a sodomy ruling that the New York State Court of Appeals (the state痴 highest court) delivered back in 1980: People v. Onofre. The gay rights briefs in Lawrence that mention Onofre have lopsidedly noticed what great news it was for sex, but not what it meant for efforts within the gay community to recognize預nd stop耀exual abuse.

In Onofre, the New York Court of Appeals overturned the state痴 sodomy ban on privacy and equality grounds. Integral to the court痴 conclusion was that the sex that the thirtysomething Ronald Onofre had had with 17-year-old Russell Evans was consensual. The sexual acts for which Onofre was initially convicted came to police attention when Evans told them what he and Onofre had done together. Evans explained that he hoped by telling the police what Onofre had done with him, Onofre might be kept from similarly injuring others through sex. Among other things, Evans told the police: 杜y anus was bothering me and I even at one point went to a doctor . . . and got treatment because my rearend was tore up.

The relationship didn稚 begin this way. At its inception, Onofre, a self-described 杜inister and assembler, was attempting to help Evans, who was experiencing family problems. At some point in its course, the relationship between Onofre and Evans took a different turn. 釘efore I knew what was happening, Onofre told authorities, 鍍hings started happening between us. Though both Onofre and Evans eventually agreed the relationship, including the sex it entailed, was consensual, Onofre wondered in writing to the police: 迭ussell know [sic] that I am gay, so h[e] may have thought to repay me for my kindness, that he had to have an intimate relationship with me.

There is plenty amiss here, including a range of inequalities and abuses of power, as well as physical harms. How, then, one might ask, has the New York high court痴 opinion Onofre become a political symbol for gay rights? The answer is that the sex in Onofre was consensual (we know this because they both said so), and that Onofre protects sexual rights. Never mind that the 田onsent in Onofre was stacked on top of inequalities and abuses of power. Never mind that Onofre痴 respect for sexual rights was achieved on the back of the multiple sexual injuries to the less powerful person that the sex it protected involved.

If nothing else, Powell and Onofre and their reappearance in the Lawrence litigation before the U.S. Supreme Court highlight the urgency of determining what exactly it means to say, as gay rights briefs in Lawrence do, that gays are 屠ust like heterosexuals. Is it meant by this that we, like heterosexuals, do not and will not take claims of sexual abuse seriously? That we, like heterosexuals, ignore relations of unequal power between sexual partners? That we, too, ignore physical injury so long as it is sexually inflicted? De-sexualize it to recognize it as harm? That we will regard any victory for sex as sweet, even when the sex that prevails is (or includes) sexual violation?

One searches the gay rights Lawrence briefs largely in vain for answers. In their zeal to decriminalize gay sodomy, nowhere do those briefs seriously engage the well-documented problems of sexual violence within the lesbian and gay male communities beyond the predictable傭ut insufficient用latitudes about 田onsent. Not even the 妬nternational law brief in Lawrence does, though this is a problem that transcends borders. This is not to say that Lawrence v. Texas itself presents a problem of consent. Nor that sodomy should remain criminal. It is, however, to ask whether we have been, or are, arguing for gay liberation in a way that builds a future we wish to inhabit.

One of the few briefs in Lawrence that in any way crafts an argument for gay rights around same-sex sexual violence as such is almost enough to make one yearn for the distant past. Yale Law Professor William Eskridge for the CATO Institute submits that, in the nineteenth century, sodomy laws were partly an attempt to address same-sex sexual abuse. If this is true, it is all the more extraordinary that a complete analysis of the problems of same-sex sexual violence has been elided in the contemporary rush to void sodomy laws. Indeed, the CATO Brief itself does not explore the possibility that this historical purpose may have been implicated in Powell and Onofre, both of which it mentions approvingly.

The CATO Brief痴 short discussion of the historical relationship between sodomy laws and sexual violence comes in a larger argument about why sodomy laws, though they once may have conformed to the Constitution, no longer do. (This is ingenious.) Today痴 sodomy laws, it is argued, are not intended to serve the reasonable purposes, including protecting victims of sexual violence, that historically they did; nowadays, they池e 砥nderstood to be about something else again: homophobia. By uncoupling homophobia from sexual abuse the way it does, the CATO Brief can take aim at homophobically-underwritten sodomy laws without having to consider what should be done about the problem of same-sex sexual injury. In this respect, the CATO Brief is not alone: The other gay rights briefs in Lawrence, including the ACLU痴 Brief and the 滴istorian痴 Brief, which echo its historical claims, don稚 either.

This is not to say that sodomy laws, as framed and enforced today, should not be overturned. It is to say that any serious discussion of why needs prominently to engage, rather than obscure, to confront, rather than avoid, the sexual abuse that not only is there, but that may even historically have been part of their purpose to address. So far, the discussion occasioned by Lawrence, though serious, hasn稚 done this. This sheds light on what gay rights advocates do and do not mean when they criticize sodomy laws as a form of coercion.

In any event, homophobia isn稚 so easily divorced from sexual abuse as the gay rights briefs in Lawrence may make it seem. Leaving victims of same-sex sexual violence to suffer in silence can be homophobic, too. For years, male supremacy has policed a certain silence around same-sex sexual harm, including same-sex domestic violence, stalking, prostitution, and rape. It has rendered them ineffable in law and in life. The notion has been pervasive that gay men as gay men have tacitly consented to acts of sexual violence and perhaps may even have desired them擁n much the way the same attributions are made to women who are sexually violated. The tightlipped silence in the gay rights Lawrence briefs around the current realities of same-sex sexual violence within the gay community keeps them exactly where male supremacy does and would keep them among heterosexuals: invisible, hidden from public view.

The 斗ike straight argument in Lawrence is in this respect more than tacit. Paul Smith, Lambda痴 representative before the Supreme Court during the oral arguments in Lawrence, was asked by Justice Antonin Scalia: 展hat about rape laws? There are . . . rape laws . . . that only apply to male/female rape . . . [Are they] unconstitutional? 鉄uppose the State has a rape law that葉hat, you know, that really requires the penetration of the female sex organ by謡hich is the classic common-law definition . . . of rape, and it has no law of homosexual rape. You think that that law would be unconstitutional?

This was a perfect opportunity to point out that yes, gays, just like heterosexuals, have a problem of sexual violence, and to say, yes, laws that do not offer meaningful and equal protection to gays and straights from sexual abuse should be regarded as unconstitutional. Indeed, Smith might have reminded the Court that, under Texas law, men and women, straight and gay, are already at least formally protected against acts of sexual assault, and that most states have gender-neutralized their rape laws. The Lambda Brief in Lawrence that Smith signed, after all, had made direct (albeit passing) reference to Texas痴 sexual assault law, one of only two gay rights briefs in Lawrence to do so. [1]

Smith might also have returned Justice Scalia痴 volley, asking, What, exactly, Justice Scalia, do you mean by 塗omosexual rape? Same-sex sexual assault generally? Same-sex sexual assault committed by straight men? Against them? Is 塗omosexual rape only rape that痴 committed by 菟rovably or out gay men? Does it refer to a form of sexual violence that, socially speaking, can make a heterosexual victim wonder whether he is, or might be, gay? Does the term construe any man who sexually assaults another as, by definition, gay? Does it make same-sex rape a crime that only gay men commit? Is there any room in the notion of 塗omosexual rape for lesbian women at all?

Smith instead said: 的 didn稚 suggest that [laws prohibiting only male-on-female rape] were unconstitutional. The reason Smith offered to shore up his view was this: A State might justify a law that prohibited only male-on-female rape by coming forward with evidence that 塗omosexual rape 妬s not a problem that needs to be addressed or that the victims are more able to protect themselves. To repeat the relevant point: A State may justifiably choose not to regulate so-called 塗omosexual rape, either because there痴 兎vidence that this is not a problem that needs to be addressed or the victims[用resumably men, including gay men余are more able to protect themselves.

But what of victims of male-on-male rape葉he very people who have not been able to protect themselves? Should we maybe believe that they wanted it, so weren稚 raped, but were sexually actualized? How circular, providing evidence that same-sex rape is 渡ot a problem that needs to be addressed[.] If one believes that men 殿re more able to protect themselves, and so is willing to disbelieve men痴 claims of rape when they haven稚 been able to prevent it, the problems of same-sex sexual violence disappear. All men, gay or straight, are apparently alike: sexually inviolable and unviolated.

Leaving aside how Smith痴 remark naturalizes, hence justifies, male sexual aggression, and how it reinforces the notion that women are defined by their capacity to be sexually violated by men, it is also the case that the invisibility of male-on-male sexual violence is the very position that male supremacy would like to occupy預nd often has謡hen it comes to male-on-female sexual abuse. That is, that it痴 渡ot a problem that needs to be addressed, at least not as a problem of inequality. Following the 斗ike-straight reasoning of the briefs in Lawrence, why should same-sex sexual violence be any different?

While it may initially seem that, during oral arguments in Lawrence, Smith made a strategic choice to limit the 斗ike straight analogy, on closer inspection, he took the 斗ike straight position that gays can leave the problems of sexual violence un-addressed, its victims without (meaningful) legal recourse. So much for Lawrence being the case that asks the Court to liberate all gays from 鍍he closet. For victims of male-on-male sexual abuse, the message that emerges is clear: Lawrence is not for you. It痴 about freeing and protecting what was done to you.

No one has yet publicly suggested that an apology to victims of same-sex sexual violence is in order, among other things, for this display of insensitivity and obliviousness to the reality of the abuse that they致e suffered. Nor (so far as I知 aware) has one been forthcoming on its own.

Smith was no doubt caught off guard by the Court痴 question precisely because, when defending gay sex, it does not occur to gay rights advocates, straight or gay, to criticize sexual abuse. They do try to avoid airing the gay community痴 電irty laundry, so as not to draw homophobic rebuke. Implicit in this thinking, though, is that we can and should live with the male supremacist protections that have long been accorded to those who deserve it least: those who misuse and hide behind the right to sex that痴 being argued for in Lawrence, meaning, of course, perpetrators of sexual abuse.

To argue for a right to sex this way may be a luxury that gay rights advocates can afford. But survivors of sexual violence, as well as those who love them and those who work with them cannot. For they know that there is a relationship between sex and sexual violence擁n the gay community and beyond it葉hat has to be exposed, spoken about, and spoken against, in order to be broken. Lawrence is about them, too.

Had advocates of the 斗ike straight arguments in Lawrence taken the advice of those who are committed to ending the inequality between the sexes, they could預nd would揺ave developed their arguments in a fashion that would have made this clear. In fact, it is one more way that homosexuality is like heterosexuality. But in light of their very 斗ike straight avoidance, if not wholesale denial, of the problem of sexual violence, it is hard to be overly hopeful that the Supreme Court will write an opinion that is good for women, lesbian or not, and gay men who have been sexually violated.

Because I want sodomy laws to be struck down, too, but in the right way, I am pleased to report that the brief filed in Lawrence by the NOW Legal Defense and Education Fund holds out a key that can spring gay rights and the rights of victims of sexual violence at the same time. Although it doesn稚 address sexual violence explicitly as such, the NOW Brief does argue that sodomy laws violate the sex equality rights of lesbians and gay men. In doing so, the NOW Brief directly reveals the male supremacist underpinnings of sodomy prohibitions, and effectively calls upon the Court to strike them down on those very grounds. Should the Court be wise enough to follow the course that NOW has opened up to it most explicitly, it will have done more than most of the gay community as a whole has yet done to take seriously the problems of sexual violence, and to recognize that in the debate over the government痴 authority to regulate sexuality, the rights of victims of sexual violence, of all sexual orientations, deserve to be heard.

© Marc Spindelman, 2003. All rights reserved.

[1] The other direct reference in the gay rights briefs in Lawrence to Texas痴 law against sexual assault appears in a footnote in the Law Professors Brief. In that footnote, the Law Professors observe that Texas痴 sexual assault law, like the state痴 ban on public sex and its ban sex with minors, applies 鍍o heterosexual and homosexual conduct alike. Needless to say, this is hardly an analysis of how that law has operated in practice or how the acts it addresses are related to male supremacy.
Marc Spindelman is an Assistant Professor of Law at The Ohio State University痴 Moritz College of Law.

June 12, 2003

JURIST Guest Columnist Marc Spindelman is an Assistant Professor at the Moritz College of Law, Ohio State University, and a graduate of the University of Michigan Law School. Following law school, he served as a law clerk for the Honorable Alice M. Batchelder, U.S. Court of Appeals for the Sixth Circuit, and worked as an associate at Cadwalader, Wickersham & Taft in New York City. More recently, he was a Reginald F. Lewis Fellow for Law Teaching at Harvard Law School, taught as a Visiting Instructor of Law at the University of Michigan Law School, and was a Greenwall Fellow in Bioethics and Health Policy at Georgetown University and Johns Hopkins University. During the time he spent as a Greenwall Fellow, Professor Spindelman was also a Research Fellow at the U.S. Food and Drug Administration痴 Center for Drug Evaluation and Research, an Adjunct Professor of Law at the Georgetown University Law Center and a Faculty Associate at the Johns Hopkins University Bloomberg School of Public Health, where he continues to hold an appointment.

Professor Spindelman痴 research interests include sex equality theory; queer theory; contemporary approaches to bioethics and health policy; public health ethics; interpretive theory; and constitutional theory. His recent scholarship has focused on certain problems of inequality, chiefly in fields of bioethics, constitutional law, and sexual harassment law. Since being invited to join the faculty at the Moritz College of Law, he has finished work on seven articles for publication and delivered a number of public lectures.