October 24, 2003
YLS Scholarship Contributes to Supreme Court Decision in Lawrence v. Texas
The Supreme Court decision in Lawrence v. Texas, handed down on June 26, 2003, invalidated a Texas statute that criminalized same-sex sodomy and unequivocally extended the right of privacy to consensual, private same-sex intercourse. It also overturned Bowers v. Hardwick, a 1986 decision that had upheld a Georgia anti-sodomy statute. The work of several Yale Law School professors contributed pivotal arguments and facts to the Court's decision.
The majority opinion of the court, penned by Justice Anthony Kennedy, notes that scholarly writing--including a number of amicus curiae ("friend of the court") briefs submitted for the Lawrence case--attacks some of the historical premises relied upon in the Bowers decision. And the first amicus brief cited in the text of the decision is the one for the Cato Institute, which was primarily authored by William Eskridge, the John A. Garver Professor of Jurisprudence at YLS. Indeed, a chunk of the argument in the decision comes straight from Eskridge's brief, even referencing exactly the sources he used, and the decision goes on to also cite a scholarly article written by Eskridge.
Eskridge explains the central argument of his brief: "One reason to overrule Bowers versus Hardwick was that it was based on an inaccurate or incomplete understanding of the history of sodomy laws." The Justices who authored the majority and concurring opinions in Bowers assumed that "homosexual sodomy had been the object of state criminalization and persecution for millennia, [which] was actually quite wrong." Eskridge's research showed that "sodomy statutes had never until the twentieth century--well into the twentieth century--been targeted against homosexual sodomy."
Eskridge looked in more detail at the state of sodomy laws in 1868, the year that the Fourteenth Amendment, which guarantees due process and equal protection of the law to citizens of every state, was ratified. He found that not only were the statutes vague and not targeted against homosexual conduct, but there wasn't a single reported prosecution for sodomy for a private, consensual act. Indeed, the evidence rules at the time prevented one consenting partner from testifying against another. "So as a matter of evidence even, the laws were set up so that they would not reach consensual activities between two adults in a private place," says Eskridge.
Eskridge's arguments proved compelling to the court, in part, because they were based on years of scholarship. He has written extensively on sexuality, gender, and the law, including a book, Gaylaw: Challenging the Apartheid of the Closet, published in 1999. In researching Gaylaw, he read every single sodomy prosecution reported in the United States up to the 1990s and traveled around the United States to read police reports. He also "gained an understanding of the nineteenth century criminal law and [law of] evidence and procedure. . . . It seems to me, you can't understand the cases without understanding where they fit into criminal law as it evolved in the nineteenth century."
A compliment to Eskridge's historical research was that it was also cited by Justice Antonin Scalia in his dissenting opinion in Lawrence. While Scalia came to a very different conclusion about the case and the law, "He represented what I had found in an accurate way, and he made his own normative argument about that. I think that was entirely fair." Eskridge continues, "I think our role as scholars is to make sure that the discussion is carried out on a factual basis and not based on stereotypes and prejudices, and I think Justice Scalia's opinion was very hard-hitting and very analytical. And I think he obviously read Gaylaw very carefully."
Justice Kennedy's majority opinion further refutes the assumptions of scorn in the Bowers decision by attacking "The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards." In this regard, Kennedy cites the amicus brief filed on behalf of Mary Robinson, the former United Nations High Commissioner for Human Rights, and a number of human rights groups showing that nations other than the U.S. "have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct." This brief was written by a Yale Law School team, headed by Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law, and Kenji Yoshino, professor of law, among others. (To read more about the writing of this brief, see this earlier article.)
Kennedy specifically discusses the case of Dudgeon v. United Kingdom, in which the European Court of Human Rights overturned an Irish anti-sodomy statute similar to the one at issue in Lawrence. "This is the first time that the United States Supreme Court has cited a European Court of Human Rights decision in text," says Yoshino. "I think--not just from a gay rights perspective--but from an international human rights perspective or even a broader comparative law perspective, this is a huge advance. . . . It does at least open the door to have United States norms be informed by external norms."
Koh points out that this is a practice that goes back to the origins of the nation. "The United States Supreme Court was receptive to international law arguments for many years from the beginning of the republic. That's understandable, because when we were a small country, giving decent respect to the opinions of mankind and international law were an important part of the way our country accredited itself in the eyes of the world." But as the U.S. became the most powerful country in the world, the assumption that our jurisprudence was at the cutting edge made our courts less aware, and less deferential to these international standards. And Koh argues that Bowers was an example of the Court mistakenly ignoring the rest of the world. "The concurring opinion of Chief Justice Burger in Bowers speaks of the views of Western Civilization without actually mentioning the Dudgeon case, which at that time had already been decided by the European court."
Yoshino sees an "accreting trend" toward internationalism in recent Supreme Court decisions. Last year in Atkins v. Virginia, the Court noted that the world community "overwhelmingly disapproved" of the use of the death penalty against mentally retarded offenders in ruling such executions unconstitutional. This argument appeared only in a footnote and didn't cite the brief, also written by a team from Yale Law School, that presented support for the idea. (To read more about this earlier case, click here.) Yoshino says, "I really view the Lawrence case as actually building on the Atkins case and in fact we use the Atkins case in our brief to show the Court that it had already opened this door."
The brief that Koh and Yoshino worked on had also suggested that anti-sodomy laws could put the United States in violation of the International Covenant on Civil and Political Rights--an argument that the Supreme Court didn't adopt. Yoshino explains that the Court agreed with the brief's comparative law approach, but not its international law approach. "The Court wasn't saying we are required to adhere to international standards, rather it was saying we're going to look for advice or exhortation to other jurisdictions whose decisions don't bind us but are probative of our own decision making."
Koh adds, "I think one key idea is the notion that privacy and equality are not American property. They're concepts understood and interpreted around the world."
Yoshino says that in first reading the decision, in addition to his excitement over the Court's use of comparative law, "We were actually all gratified-slash-shocked to see the brief so prominently placed." Koh says, "It's nice when an amicus brief is treated like you're actually a friend of the court."