The Case for Gay Rights

From Bowers to Lawrence and Beyond

David A. J. Richards

• Publisher: University Press of Kansas
• Year: 2005
• ISBN:
  9780700623129
• Topic: Diritto
• Subtopic: Diritto di genere

As Americans wrestle with red-versus-blue debates over traditional values, defense of marriage, and gay rights, reason often seems to take a back seat to emotion. In response, David Richards, a widely respected legal scholar and long-time champion of gay rights, reflects upon the constitutional and democratic principles—relating to privacy, intimate life, free speech, tolerance, and conscience-that underpin these often heated debates.The distillation of Richards's thirty-year advocacy for the rights of gays and lesbians, his book provides a reflective treatise on basic human rights that touch all of our lives. Drawing upon his own experiences as a gay man, Richards interweaves personal observations with philosophical, political, judicial, and psychological insights to make a compelling case that gays should be entitled to the same rights and protections that every American enjoys. Indeed, the call for gay rights can trace its lineage back to the powerful protest movements of the 1960s and 1970s, which demanded racial and sexual equality and ultimately overthrew the bigoted status quo.Richards focuses particularly on two key Supreme Court cases: the 1986 decision in Bowers v. Hardwick upholding Georgia's anti-sodomy laws and the 2003 decision in Lawrence v. Texas striking down Texas anti-sodomy laws and overturning Bowers. He shows how Bowers arose in a period of constitutional crisis over the right to privacy and examines the opinions in light of the Court's division in Roe v. Wade. He then shows that Lawrence must be understood in the context of later cases, notably Casey and Romer, which required that Bowers be reconsidered and overruled. Along the way, he examines current debates over gays in the military and same-sex marriage, assesses the Massachusetts Supreme Court's decision to permit gay marriage, and critiques the 1996 Defense of Marriage Act.Eloquent and impassioned, Richards's work crystallizes the essence of the argument for a much more expansive and tolerant view of gay rights in America. It also offers a touching account of one gay man's very personal struggle to find the voice he needed to speak truth to the powerful forces of discrimination.

1

THE PERSONAL AS POLITICAL

Shortly after the Supreme Court announced its decision in Lawrence v. Texas,¹ I received an unsolicited e-mail from a student I had taught some twenty years ago, a student I did not and do not know personally. The student had worked for the New York University School of Law Law Review on an article I had published after the Court’s decision in Bowers v. Hardwick,² an article highly critical of the decision’s reasoning and calling for its overruling.³ The former student had remembered my argument and offered me warm congratulations on Lawrence, which overruled Bowers, noting the relatively short time between Bowers (1986) and Lawrence (2003). I was strangely moved by this e-mail because, amidst so much that distracts and trivializes in the demands of teaching and scholarship and administration in a major American law school, it recognized something deeply personal for me, a central ambition of my life as a constitutional scholar and my place, among others, in offering arguments over time that were in play in these decisions.⁴ I was moved to be seen so clearly, in particular, by a student who shared history with me and saw me as a person, a moral agent in a certain history, which is a chapter in the larger history of American constitutionalism.

In fact, my work on these arguments had started much earlier, around 1974, when I left law practice to begin teaching, first at Fordham University Law School and then, three years later, at the New York University School of Law, where I have remained. At that time and for some time afterward, I wrote as one of very few such voices, certainly in American law schools, calling for the recognition of the human rights of gays and lesbians under American constitutional law.⁵ I am thankful that there are now many other voices. I want to draw on this experience, personal as well as professional, from the beginning of my career thirty years ago until today to make clear the role that arguments over basic American constitutional principles played in my life, as a gay man, as they have played in the lives of so many other gay Americans as well as other Americans struggling for recognition of their basic human rights under constitutional law. What were my motives and aspirations, and why did I turn to constitutional law as a way of constructing arguments that would meet my needs and the needs of so many others? What led me to resist? Is there a personal and political psychology here with a larger resonance in the human psyche that flourishes in and through resistance to injustice? What kinds of arguments did I, a member of a small and highly stigmatized minority (so stigmatized in the United States that until World War II and its aftermath of civil rights ferment it barely recognized itself as such), develop, and why were they reasonably appealing over some thirty years to growing numbers of citizens and, eventually, judges of our highest court? And what can my story tell us about American constitutional law, or law more generally, and its moral and political appeal?

Academic law in general and constitutional law in particular are often taught and written about in an excessively academic positivistic vein, as a stable body of self-interpreting doctrines or principles. Such an approach is as falsifying of law as would be an architecture that conceived of space as having only one or two dimensions. A close analysis of a constitutional development, such as the sodomy cases, brings out the multidimensionality of constitutional law as a humane normative enterprise that gives an acoustic to otherwise feeble, unjustly suppressed ethical voices that are strengthened by the resonance that law, properly developed, gives them. In many cases the law accords such voices and their claims a sense of being part of the constitutional community, no longer marginal, silenced, and dehumanized but recognizably human and humane.

This work is a study of constitutional history, of the developments that led to Bowers v. Hardwick and to its overruling in Lawrence v. Texas. My hope is that structuring my argument as a mapping of personal and constitutional history will bring alive to the reader the role that developments in constitutional law play in the lives of Americans (the personal as political), in particular, those who find uniquely in constitutional law an impartial forum of principle that hears and assesses their voice, testing them in terms of arguments of principle, sometimes in ways no other branch of American government does. The story is my own, but it reflects a larger pattern of thought and action in many others whose lives were fundamentally changed by the developments I discuss. I turn to personal history because it clarifies the struggle for voice from within the psyche of one among others who found within himself his own resisting voice, including exploring why I turned to a range of disciplines, including moral and political philosophy, interpretive history, constitutional interpretation, law, and, most recently, psychology, in order to do justice to this resisting voice. Why does a new voice require new methods?

The Struggle for Voice

I structure my argument in terms of the relationship between our psyches as persons and the role of voice (including struggles for voice) in giving expression to our psyches. Psyche is defined as “breath . . .; hence, life (identified with or indicated by the breath); the animating principle . . ., the source of all vital activities, rational or irrational . . ., in distinction from its material vehicle.”⁶ A human psychology, thus understood, must take seriously the living of a human life from an inward sense of our emotions; consciousness and self-consciousness; bodies; and, of course, voice, including the gap between our feelings and knowledge of our feelings.⁷ Anthony Damasio’s The Feeling of What Happens importantly models our psychological complexity in terms of the metaphor of our experience of the unity in complexity of melody, harmony, and polyphony in music, “the music of behavior”:⁸ “You are the music while the music lasts.”⁹ Music, however, may not just be a metaphor for our psychological complexity. It may, as in the music of Giuseppe Verdi,¹⁰ sometimes be our only way into feelings rooted in a suppressed voice we have but are not aware we have, and may indeed offer us a complex and subtle cultural form through which we are brought to selfknowledge of important emotions we hold within our psyches and how and why it is so difficult to acknowledge them. In such music we recognize a voice culturally suppressed in ourselves and experience a resonance for a voice that at least questions or can question such loss as the necessary foundation of our identity as men or women living under democracy.

My working hypothesis in the argument of this book is that, in appropriate historical circumstances, the construction of new forms of legal and constitutional arguments can be and are ways in which, analogously to the construction of voice in works of art, we not only recognize in ourselves a voice otherwise culturally suppressed but give expression as well to a voice that resists unjust forms of such suppression and that, appealing to values explicit and implicit in constitutional law, seeks and finds a resonance in the growing recognition of the justice of its claims. All these stages are reflected in the story I tell, which is specifically the story of a young man who, under the impact of the homophobic culture of his youth, certainly always knew his sexual orientation was gay but could not have acknowledged, let alone given expression, to such desires and feelings. My interest here is in exploring the role that the construction of certain kinds of moral and ultimately constitutional arguments, by myself and others, played not only in finding a voice expressive of my sexual psyche but, at the same time, thinking, writing, and speaking in a voice that resisted, as fundamentally unjust, the repression not only of the voice but of humane forms of life that give expression to such voice. I certainly do not believe that my own experience is either universal or universalizable: historically, gays and lesbians have found their voices and lived their lives in circumstances where such forms of public moral and legal argument were unthinkable, indeed savagely suppressed. But it is important to understand as well an experience, like mine and others’, of a resisting ethical and constitutional voice that is increasingly common and that has been accorded, as the sodomy cases show, increasing respect and even acceptance not only by our judges but by citizens at large.

What organizes my argument is a narrative of voice, including experiments in personal and constitutional voice. It touches on autobiographical points, but only those essential to the larger narrative of personal and constitutional voice that is the subject matter of this book. The autobiographical facts, which I try to keep to a minimum (largely at the beginning and end of my argument), give a context for my story of voice, including the significant relationships out of which the struggle for voice arises and by which it has been supported and sustained. My arguments, even when highly abstract, arise from relationships and always return to relationships, which is a way of bringing alive what I believe motivates the kind of story I am telling, a story central, as I have come to believe, to the larger story of the role that resisting voice plays in the development and integrity of American constitutionalism.

How can this resistance happen? What does it tell us about the connections of our psyches to voice, connections that take the form of ethical and constitutional resistance that is widely stigmatized, marginalized, and even punished? What moves us to such forms of voice, and why and how do such voices enjoy growing appeal and even recognition? My story, while highly personal (even idiosyncratic), illuminates the larger American story of what moves us in a constitutional law that is, at its best, justly responsive to such voices.

My own struggle for voice has multiple dimensions: my family history, my undergraduate and graduate education (in which moral and political philosophy were central preoccupations), my finding voice in a loving sexual relationship with my partner for some thirty years, and, very importantly, my voice as a teacher and scholar of American criminal and constitutional law. This, in turn, included various stages in the development of my teaching and scholarly voice, including relationships to students, my colleagues, and the larger constitutional and political culture. My life as a teacher and scholar of law expressed itself in different voices over time: jurisprudential and philosophical; historical and constitutional; and, most recently, feminist and psychological and literary (in particular, exploring the links between personal and political psychology in resisting injustice). These stages were a continuum, and it would be a mistake to separate any one of them sharply from any other. For expository convenience, I divide these stages of developing ethical voice into the three parts of this book: philosophy, law, psychology. But all of them were expressions of my voice, rooted in my psyche, and thus were as much ways of my finding and exploring my personal and ethical voice as they were ways of seeking a resonance for personal and ethical voice in the larger culture, whose dominant assumptions had been homophobic (savagely repressing any such personal and ethical voice) because such voice was unspeakable. It was, in Blackstone’s words, “a crime not fit to be named; peccatum illud horribile, inter christianos non nominandum”¹¹—not mentionable, let alone discussed or assessed. Philosophical argument has always been central to my conception of human rationality and thus informs my work in all areas. Philosophy itself has a history, and my interests in philosophy and history were there from the beginning. The uses of both philosophy and history in constructing new forms of constitutional argument were thus wholly natural and quite productive developments in my voice. And a growing interest in feminism, as pivotal to my teaching and scholarly voice of ethical and constitutional interest, clarified the trajectory of my work. The recent turn in my work to psychology and literature has brought my struggle for voice full circle, clarifying the roots of resisting voice in family relationships I had not previously seen or understood, as I show at the end of my argument. This psychology of resistance arose not only from exploration of my own psyche, transformed, as it was, by the process of resistance I describe at length in this book, but also from my experience of the reactionary forces that the resisting voice of myself and others unleashed in American politics. Bringing in this psychological dimension, as I do at the end, tells a more complexly truthful story of how resistance unleashes reactionary repressive responses and enables us to explore and better understand the balance between resistance and reaction in constitutional law and politics. My story is by no means a Whig history of inexorable progress but a complex history of the gains and losses of the moral agency of resisting voice in law and politics.

What was stable throughout this process is what explains much of its dynamic: living in a long-term, loving gay relationship, an experience of truthful voice in relationship that exposed the lies and violence on which cultural homophobia rests. Such homophobia is a political and constitutional evil directed precisely at denying and disrupting such relationships. An eye and an ear increasingly sensitive to such lies and violence clarify the forms of resistance to which I turned, including, as my argument shows, the view that equal recognition of same-sex relationships is a basic human right. It was because my voice arose from and was sustained by such a loving relationship that I began to look with growing skepticism at the reactionary forces that warred on such a relationship. Looking at the world through this prism strengthened a resisting voice that critically questioned a culture, resting on unjust gender stereotypes, that could not understand such relationships. All the forms of voice I explore in this book were ways of speaking in this resisting voice, a voice that compelled me both because it was more personally truthful to my experience of love as a basic human good, and because it more intelligently integrated my emotional and intellectual intelligence in offering compelling ethical and constitutional arguments against the fundamental injustice of homophobia.

Much of the argument of this book is about the construction of these ethical and constitutional arguments and the growing judicial and public recognition of their validity. But I also frame this discussion, as I have here, in terms of the underlying struggle for personal and ethical voice, which crucially explains how these arguments arose and why they have had any appeal at all. I will try to keep both discussions in some fruitful relationship to one another, but at some points one form of discussion will dominate the other. In fact, the truth of the matter is that both issues arose in my experience at the same time and were part of the same process. My hope is that this larger truth will inform the discussion...