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...