Bowers v. Hardwick

This episode quotes outdated language about homosexuality that maybe painful to hear. Please take care while listening.

A podcast where we dissect and analyze the Supreme Court cases that have caused our liberty to die off, like the Alaskan Snow Crab population

0:00:01.3 S?: The Court will hear arguments first this morning in Bowers v. Hardwick.

0:00:12.0 Leon Neyfakh: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Bowers v. Hardwick. In this case from 1986, the Supreme Court ruled that a Georgia law against sodomy did not violate the constitutional right to privacy.

0:00:30.9 S?: Now, of course, it's an absurd law to try to enforce. But that's not the point, the point is that the principle said to gay men that what you do, what your behavior is or what your lifestyle is is essentially against the law.

0:00:46.9 Leon Neyfakh: The ruling in Bowers has since been overturned by the Supreme Court, but the case nevertheless warrants attention as conservative activists move on from their defeat of Roe and put gay rights in their sights. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:06.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our liberty to die off like the Alaskan snow crab population. I'm Peter, I'm here with Rhiannon.

0:01:18.3 Rhiannon: Why are these always so bleak? I guess the Supreme Court keeps being bleak, right?

0:01:22.2 Peter: Yeah, well, it has to be bad.

0:01:26.2 Rhiannon: Yeah, right. I get it. Yeah, you're right.

0:01:28.3 Peter: And live from his car, Michael.

0:01:31.9 Michael: That's right. Hey, everybody. I read that the snow crab population didn't die off, they just fled to Russia.

0:01:40.5 Rhiannon: Oh, I heard it was like Russian interference.

0:01:42.3 Peter: It's like a political statement they're making.

0:01:45.5 Michael: I thought it was 'cause the water temperature because of global warming, it's like they need to migrate to... So it's more like a harbinger of the displaced peoples will be coming.

0:01:57.5 Peter: Look, my opening metaphors are based on me reading a headline real quick, so don't fact-check me.

0:02:03.7 Rhiannon: Got it, got it. Michael, why are you in your car?

0:02:10.0 Michael: Because I love US auto manufacturers. No, actually, this is a Honda. No, it's very windy out here today, and we have swamp coolers and there's something just magical about the design of my house where when it's windy, it gets into the vents and reverberates and makes this really loud, very annoying whistling sound that is interfering with recording. Later on tonight, it will be interfering with my sleep and stuff. Very exciting.

0:02:48.9 Rhiannon: That's dedication to the podcast, thank you.

0:02:50.7 Peter: You're a true podcaster, moving to the car to get it done. We appreciate it. Today's case, Bowers v. Hardwick, this is a case from 1986 about anti-sodomy laws, and I think that, believe it or not, after nearly 150 episodes, this one is a 5-4 first, in that it has actually been overturned.

0:03:16.8 Rhiannon: Yeah, not good law anymore.

0:03:19.0 Peter: This case was overturned in 2003, in a case called Lawrence v. Texas, where the Court found that there is a constitutional right to private consensual sexual activity, and therefore laws outlawing sodomy are unconstitutional. But the holding in Lawrence was based on the Fourteenth Amendment's right to privacy. And in case you weren't paying attention, the right to privacy has taken some hits lately. The right to an abortion that the Court identified in Roe v. Wade was predicated on the right to privacy, and seeing as the Court said last term that there is no right to an abortion, the scope of the constitutional right to privacy remains very unclear, and so there is a risk that we revisit this issue some time in the relatively near future, and we thought that that warranted revisiting this case.

0:04:14.5 Peter: A little bit of a content warning up top. This is a case from 1986 about homosexuality, meaning that this is an opinion written by someone born in 1917 about homosexuality, so you're gonna hear terms like homosexual sodomy quite a bit. Some antiquated language will be coming at you. Don't blame us. Blame the Supreme Court.

0:04:43.2 Michael: Well, in the second paragraph, the majority opinion describes the plaintiff as a "practicing homosexual," like an attorney or something. Not all attorneys are practicing attorneys.

0:05:00.0 Peter: No, he's licensed, he's licensed and he's going at it.

0:05:02.4 Michael: He has not abandoned homosexuality for a job in the media, like my co-hosts.

0:05:11.0 Peter: I love the overt implication that it's very normal to be a non-practicing homosexual, like unlike me who keeps this to myself, these guys are doing it.

0:05:23.3 Rhiannon: That's right.

0:05:24.4 Peter: Alright, so Rhi, I'll let you get into the background here.

0:05:28.3 Rhiannon: Yeah, I want to emphasize again that this case is not good law. This case that we are talking about today has been overturned, but we are talking about it because if you're paying attention to the Supreme Court, especially over the last term, these rights are again in danger.

0:05:47.6 Michael: And this was good law not too long ago.

0:05:47.7 Rhiannon: That's right, yeah, right.

0:05:48.7 Michael: In the lifetime of the majority of our listenership this was good law.

0:05:51.8 Rhiannon: Absolutely, yeah, good point. Okay, so let's talk about the facts, how did this case come to the Supreme Court. It actually started in the early '80s. We're talking Atlanta, Georgia, 1982. And like so many of these cases, we are yet again dealing with a stupid and vindictive cop. So Officer Keith Torick with the Atlanta Police Department gives Michael Hardwick a ticket in the summer of 1982, it's a ticket for public drinking. Now, was Michael Hardwick really drinking in public illegally? What Officer Torick observed allegedly is Michael Hardwick throwing a beer bottle into a trash can outside the gay bar where Hardwick worked, so not really public drinking, actually, but hey, this is as a good reason as any to harass a minority who is disliked and targeted by cops, so sure, we're rolling with it.

0:06:50.9 Rhiannon: Now, Hardwick missed his court date on the ticket because of a clerical error, but a warrant was issued for his arrest. Now, Hardwick settled the ticket and paid a $50 fine. Again, just want to say that this is bullshit, this is how poor people are fucked every single day by cops. So the case was legally over at that point, he paid the fine, he's done with it. Now, that doesn't matter to a shit-faced cop. Officer Torick came to Michael Hardwick's house three weeks later, to serve the warrant, which is invalid, an invalid warrant, at Hardwick's house in the early morning.

0:07:26.0 Rhiannon: So he entered the house, goes down the hallway to Hardwick's bedroom, he opens the bedroom door, and there he says that he observed two men, including Michael Hardwick, engaged in mutual consensual sex. In this case, it's oral sex. Officer Torick arrests Michael Hardwick, and later actually says that he wouldn't have even arrested Harwick had Hardwick not showed attitude. Uh, yeah.

0:07:56.6 Peter: We're not gonna address this, but just a little quick throw in a First Amendment violation... Fuck, if you speak in a way that I don't like, yeah, I'm gonna arrest you.

0:08:05.5 Rhiannon: Yep, exactly. Without even touching on, right, that this is three weeks after the case is invalid, he's serving an invalid warrant on this man, enters the home, enters his bedroom, it's such bullshit behavior by a cop. Okay, now at the time, this kind of sex, this kind of sex was illegal under Georgia law. It's not technically because it's two men, but because it's sodomy under the law. What the statute said in Georgia at this time was 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 another. So basically what you have is sex organ plus mouth or anus, that's sodomy under Georgia law, it doesn't matter necessarily that it's two men engaging in that sexual conduct, but of course, hetero couples were never arrested and charged for this kind of thing.

0:09:02.6 Rhiannon: And you see here, of course, that the way the statute actually operates is it allows cops to target and harass gay man, queer people. Now, the district attorney ends up dropping the case, so Hardwick is not actually prosecuted for sodomy, which by the way, carried a sentence of up to 20 years, but Hardwick sues, saying that he's at risk at all times of being arrested and prosecuted under this statute, and that it's unconstitutional because he has a right to privacy that must include privacy in mutual consensual sex acts. He wins at the Eleventh Circuit, but the state of Georgia appeals it to the Supreme Court. And in the mid-1980s, that's when the Supreme Court is taking up this case.

0:09:46.4 Peter: Right, so let's talk about the law a little bit. Like Rhi just said, we're in the mid-80s, and the law at this point is that the due process clause of the Fourteenth Amendment prohibits states from infringing upon certain fundamental rights. In the decades prior, the Court had established that that includes a right to privacy. The Court held in Griswold v. Connecticut that this right to privacy includes the right of married couples to use contraception if they so choose. In Stanley v, Georgia, the Court held that the right to privacy covered the private possession of pornography, and of course, in Roe v. Wade, the Court held that it included the right to an abortion.

0:10:25.8 Peter: So the question here is whether the constitutional right to privacy would protect two gay men for engaging in the sexual activity of their choosing. And the Court, in a 5-4 decision written by Justice Byron White, says absolutely not.

0:10:42.4 Michael: Get that gay shit out of here.

0:10:43.5 Peter: Not in my constitution. The Court basically says, look, yeah, we've held that there's a fundamental right to contraception and pornography and abortion, but those "bear no resemblance to homosexual sodomy," which is a very obvious dodge of the actual question here, right. The question isn't whether gay sex is similar to abortion or contraception in some general way, it's whether the fundamental right to privacy, which is what led to the Court finding that there are constitutional rights to contraception and pornography and abortion, should also apply to private and consensual sexual activity.

0:11:28.3 Peter: And when you look at it that way, the similarity is actually pretty clear, right. All of those things have some relation to sexual activity and private sexual activity, and the reasoning of those cases is that there is a private sphere of activity in your life that the government is not allowed to intrude upon. Yeah, so the Court's sort of playing a rhetorical game, almost, where instead of talking about the scope of the right of privacy under the Constitution, they're just sort of rolling their eyes and being like, Come on, gay sex? A right to gay sex in the Constitution?

0:12:05.8 Rhiannon: Surely not.

0:12:05.8 Peter: Two men engaged in carnal delights? Never in my life have I heard of such indecency.

0:12:11.2 Rhiannon: What is this Southern accent, Peter?

0:12:16.3 Peter: That is a pitch perfect impression of Justice Byron White. No, I have no idea what that was. So I don't think so.

0:12:22.2 Rhiannon: Is he even Southern?

0:12:23.9 Peter: I don't think so... No, I don't think so. In my mind, if you were born before 1920, you have a Southern accent, everyone does. Now, they briefly say like, Look, some argue that this falls within the realm of some kind of a general right to sexual privacy, but we are "unwilling to start down that road."

0:12:47.6 Rhiannon: Okay, girls.

0:12:48.5 Peter: So essentially just refusing to apply the Court's own precedent, which seems confusing at first, and then when you keep reading the opinion, it's pretty clear what's actually happening here, which is that the justices on the Court do not agree with the prior decisions of the Court from the '60s and '70s that created the rights to abortion and contraception, etcetera. And so they've decided to just ignore that precedent in function, right. The majority makes a bunch of snarky remarks about those cases and expressly states that several had no basis in a constitutional text, which is a weird thing to say about your own precedent, if you're not overturning it, it's just like... It's just sort of bizarre that they're sort of openly snarking at the precedent that should control this situation right now.

0:13:39.3 Peter: The Court also dives into an analysis that at the time of the case was fairly new and considered almost a secondary concern, but now has been made famous by Justice Alito in the Dobbs decision, and that is whether a right to gay sex is "deeply rooted in this country's history and tradition." And of course, they say, How dare you? We've hated gays forever in this great country, so, of course, there's no tradition of allowing for such a thing. And again, the key here is that the majority refuses to accept that the real question being presented is about consensual sexual activity generally.

0:14:24.1 Peter: And what they try to do is reject that and frame it instead as if it were about a constitutional right to gay sex specifically, to homosexual sodomy specifically, as they consistently say. And I think that they're just doing that because it sounds more absurd in their mind, the idea that there is a right to homosexual sodomy in the Constitution, it just sounds a little bit sillier, a little bit more preposterous, and so they constantly use that terminology.

0:14:54.7 Rhiannon: I think that's right, and I think like a telltale sign that conservatives are about to deny the existence of a right in Fourteenth Amendment substantive due process jurisprudence is by how narrowly they're defining the right. So here, it's not about a right to privacy broadly, it's not about the fact that people might have this separate sphere of their life or this category of private activities that is protected by the Constitution from governmental interference. Here they're saying, no, the right that you're talking about is the right to gay sex, which sounds really bad, and which we're not going to recognize.

0:15:34.9 Peter: We've talked about this before, but if you talk about a right in a very specific way. It's easy to make it sound silly.

0:15:39.7 Rhiannon: Exactly.

0:15:41.8 Michael: Are you telling me James Madison thought there was a right for one man to put his erect penis in the anus another man? That is what...

0:15:52.5 Rhiannon: Right, like getting as granular and narrow as possible, yes.

0:15:55.3 Peter: Right. I mean, like, okay, there's no law against me going down to the bodega and buying a lollipop and licking it on the street, right, but I can make it sound ridiculous by saying like, Are you telling me you have a legal right to go down to the bodega, buy a lollipop and lick that lollipop however you please?

0:16:15.8 Michael: That's in the Constitution?

0:16:17.9 Peter: But yes, I do. That's not illegal, so I do have a legal right.

0:16:21.8 Rhiannon: Exactly, yeah, why are we talking about it like this.

0:16:23.0 Peter: But yeah, this is the tactic they used to just sort of paint the right in question as absurd.

0:16:28.0 Michael: Yeah, there is a concurrence by Justice Burger that is notable. It's very brief, it's only a few paragraphs, and he's like, I write separately, because the majority I don't think does a very good job of expressing just how gross and bad gay sex is and gay people purely. I don't like them, and they're going ahead.

0:16:54.0 Rhiannon: Yeah, this is the homophobia concurrence.

0:16:56.5 Michael: And that is a very minor paragraph. At one point, he mentions it was a capital crime under Roman law...

0:17:04.0 Peter: Roman law.

0:17:05.5 Michael: Under Roman law, that this has been disfavored for millennia, and quotes British legal philosopher Blackstone to call gay sex the infamous crime against nature, an offense of greater malignity than rape.

0:17:25.2 Rhiannon: Jesus Christ.

0:17:27.5 Michael: A heinous act, the very mention of which is a disgrace to human nature and a crime not fit to be named. This guy hates gay people.

0:17:36.4 Rhiannon: And when was Blackstone alive?

0:17:38.1 Michael: Blackstone was alive in the 1700s.

0:17:40.7 Rhiannon: Cool, cool, yeah, that's the authority we're going with, awesome.

0:17:44.2 Michael: Yeah, that is a...

0:17:46.3 Peter: Well, that combined with the Roman law 2000 years ago...

0:17:50.7 Michael: Just be thankful that we are not stoning him to death. What are we talking about here? It's a heinous concurrence, it really is. It's disgusting, but notable. Very much like a bit of a culture shock. It's a shame this is right before Scalia was on the Court.

0:18:08.2 Peter: Yeah. We were... Scalia's on the Court within a year of this, right, and it would have been fascinating, given that Scalia was a relatively open homophobe even in the early '00s, and I would have been interested to see a more unfiltered Scalia circa 1986 talk about homosexuality. Why do I feel like perhaps he would have joined the Burger concurrence?

0:18:38.0 Rhiannon: At the very least, if not...

0:18:41.2 Michael: At the very least.

0:18:42.8 Rhiannon: If not written the one that Burger signed on to, right? Yeah. Yeah, pretty heinous stuff in the majority opinion, in Burger's concurrence certainly. There's another concurrence by Justice Powell, it's a little bit more measured. Powell agrees that there is no fundamental right to sodomy, right. This is a concurrence, he is agreeing with the majority holding, but he does bring up this other concern, which is the Eighth Amendment. He points out that 26 states by this point have repealed their anti-sodomy laws, and that of the states where laws like this remain on the books, Georgia has one of the highest possible sentences for this conduct. Remember, you can go to prison for up to 20 years.

0:19:25.4 Rhiannon: So Justice Powell is saying, Look, this isn't the legal question in front of us, so I guess it doesn't matter, but there's an Eighth Amendment concern here that I have, that 20 years for a single private consensual sex act is cruel and unusual punishment, right, that might be a violation of the Eighth Amendment. Reading this, it's just kind of interesting to see how a more moderate conservative was moderating themselves at this time in the '80s, right? This is a really dumb concurrence, and he's not doing anything nice or just or fair, right, but it's important, I think, to remember a time when the Eighth Amendment was on people's minds. N conservative judge today is bringing up an Eighth Amendment concerns, right. They're just not.

0:20:12.6 Michael: Yeah, that the plaintiffs themselves didn't bring and being like, Hey, red flag. Like, if you actually enforce this law to its limit, we might want to revisit it. Hard to imagine.

0:20:26.0 Rhiannon: Yeah, no conservative is doing that today. Yeah.

0:20:28.1 Peter: Yeah, right, and I think noteworthy, that Powell, I believe, had a gay clerk or knew a gay clerk, and inquired with either the clerk or their partner about the mechanic, like how does... How does gay sex work? Can you tell me a little bit about gay sex.

0:20:48.8 Rhiannon: Oh, my God. Research for the opinion.

0:20:50.4 Peter: Yeah. It goes where?

0:20:53.8 Michael: The penises, do they touch? [0:20:55.8] ____.

0:21:00.2 Peter: I mean, it's a little bit absurd, but at the same time, he was almost on the other side of this, by all reports, and you can read his concurrence and think that part of his brain just had that little human tick, like I know gay people, wait.

0:21:16.8 Rhiannon: Right, exactly.

0:21:17.5 Michael: Do we really want to be sending them to prison?

0:21:18.2 Peter: Right, right.

0:21:18.9 Rhiannon: Right, exactly. There's that a little bit of an instinct there, but homophobia wins the day. He's like, "No, actually, no, this isn't in the Constitution."

0:21:29.7 Peter: You claim that the Constitution demands that we tolerate two men participating in lusty revelry? I cannot agree. Alright, there are a couple of dissents here. The first by Justice Harry Blackmun, which is just excellent, just a phenomenal dissent.

0:21:48.9 Rhiannon: Yeah, we've talked about Blackmun, probably one of the best writers on the Supreme Court in history.

0:21:53.9 Peter: Yeah, he just sort of cuts through the majority's bullshit and makes the basic point that this is not about a right to gay sex specifically, it's about a right to privacy and the right to engage in private and consensual sexual activity without interference from the government. And toward the end of the dissent, he very quickly makes a crucial point where he says "the mere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest," which I think is the perfect way to articulate using legal terminology the basic principle that if someone is not hurting anyone else, it is their business.

0:22:35.2 Peter: So if the state wants to outlaw sodomy, they need to give a reason beyond just we think it's immoral. And it's that sort of plain attack on the state's justification here completely, and certainly quietly, but very completely altered the way that these arguments are had, where the states no longer would just say, Well, we think it's immoral, they started to try to bolster their case for why it was immoral, and all the social harms that they thought flowed from homosexual conduct or whatever. I just thought it was a very sharp line that I continue to think is like the most concise demolition of anti-sodomy laws that has come out of the Supreme Court to this day.

0:23:21.2 Rhiannon: Let's take a break.

0:23:22.6 Peter: Okay, we are back.

0:23:24.6 Michael: Reading this dissent, there was like... I had another sort of culture shock, like reading the Burger concurrence, you have the culture shock, like, Jesus, people are just not openly this homophobic anymore. And that's just a general one, but if you're a legal nerd and you read the Blackmun dissent, there's definitely also this sort of legal anachronism here, you've got Justices talking about the Ninth Amendment being like, Oh, yeah, this is an important part of the Ninth Amendment, not just the Fourteenth Amendment, but the Ninth Amendment. That's part of the Bill of Rights, and that's an important piece of the right to privacy.

0:24:00.6 Peter: And to remind listeners, we wanted a premium episode on this, but the Ninth Amendment essentially says that just because a right is not expressly articulated in the Bill of Rights does not mean that it's not a right, that it's not a constitutional right.

0:24:15.3 Michael: Right, that the Bill of Rights, the first ten Amendments passed were not exhaustive.

0:24:20.4 Peter: Not comprehensive, right?

0:24:22.2 Michael: I also... Just, there was a line I really liked in this that I think is a good illustration of how he's thinking about the issue, but also like what a good writer he is, where he says the fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests that in a nation as diverse as ours that there may be many "right ways" of conducting those relationships, that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. That's just good writing.

0:24:58.4 Rhiannon: Beautiful.

0:25:00.4 Peter: And like a reminder that there were people in 1986 who had a progressive position on gay rights. Like there were intelligent people talking this way.

0:25:14.0 Rhiannon: Yeah, exactly. What I really like, it's a beautiful line, but another way to look at it is Blackmun telling the majority like, You fucking virgins, like this isn't how sex and relationships work, like sorry, y'all don't know about that, because you live meaningless little weird, narrow, limited lives.

0:25:30.9 Michael: Everything you know from sex, you've learned in Bible study or something.

0:25:34.8 Rhiannon: Right, right, exactly. But the rest of us aren't like that, like get with the program. We should also mention that there is another dissent, it's written by Justice Stevens. This dissent focuses on how existing jurisprudence, existing case law on these issues indicate that anti-sodomy laws functionally discriminate against gay people, and Stevens is saying that the state should have to justify that discrimination. This is more... If you follow Fourteenth Amendment jurisprudence, this is kind of more of an equal protection argument rather than a substantive due process argument, which is what the majority is talking about.

0:26:13.9 Peter: Right. He's basically saying, Well, look, if you look at Griswold v. Connecticut, for example, that's a case that allows for straight people seemingly to engage in sexual conduct of their choosing, so if straight people are protected and gay people aren't, that's an equal protection issue, right. So he's getting at the degree to which this law as applied is discriminatory against gay people.

0:26:37.3 Peter: One thing that invokes is the idea of suspect classifications, which I want to talk about briefly. When the Supreme Court is analyzing the constitutionality of a law, they scrutinize the law more or less aggressively based on a circumstance. Most notably, if a law discriminates along the lines of gender or religion or race, the Court will apply higher levels of scrutiny to those laws and, in turn, the government will have to provide more substantial justifications for those laws than they might for others.

0:27:11.3 Michael: When we say a law discriminates, discrimination has a pejorative meaning, but legally, it doesn't have to. Discriminate literally means just like differentiate between them. If a law differentiates between men and women, that's legally discriminating.

0:27:27.2 Peter: It can be remedial measures like affirmative action, but also can be men and women placed in different parts of a prison that is "discrimination" in the most literal sense, and so the government would have to justify it, and the Court would listen to those justifications and analyze them. So one important aspect of Supreme Court jurisprudence is that the Court has historically held that it will apply more scrutiny if the discrimination in question is against a category of people that have been historically discriminated against. And so discrimination on the basis of race, even if it's being done for good faith reasons like affirmative action, gets the highest level of scrutiny because of this country's history of racial inequality.

0:28:09.0 Peter: Discrimination on the basis of gender gets a heightened level of scrutiny, though not the highest, because of historical gender inequity. But the Court has held that the lowest level of scrutiny, the default level, applies to discrimination on the basis of sexual orientation. Bizarre for a couple of reasons. One is, like I said, discrimination based on gender gets a heightened level of scrutiny, and that's effectively the same thing as discrimination based on sexual orientation, right. It's discrimination based on perceived gender roles and behaviors. The other weird thing is that they're sort of claiming that gays are not historically discriminated against in this country, while you have the Court expressly saying here that there is a history of anti-gay laws and anti-gay sentiment in this country. It's not so much that they're saying gay people aren't discriminated against historically, they're just saying, Well, yeah, but they should be, right?

0:29:06.7 Rhiannon: Right. We don't care about that discrimination, yeah.

0:29:09.5 Michael: Exactly. It's a very darkly funny tension where you have people who just literally don't really actually believe in equal protection, and really fully believe in like the legal framework for these "suspect classifications" that falls on shakier constitutional ground. Like the whole framework for that is just something conservatives are not 100% on board with. So on the one hand, they'll talk about how sexual orientation shouldn't be a "suspect classification," but then turn around and justify the scrutiny against the people based on sexual orientation, because, Hey, they've always... There is this history and tradition of treating gay people like trash, that's just what we do in this country, 'cause this is a Judeo-Christian country.

0:30:01.5 Michael: This is also a good time to maybe talk about the fact that, as we've mentioned, this case is not good law, currently. It was up until the early '00s, but then in... The 2003?

0:30:13.0 Rhiannon: 2003, yeah.

0:30:14.6 Michael: A case called Lawrence v. Texas revisited this issue and overturned it. That was a 5-4 decision in which Anthony Kennedy joined the liberals in striking down a Texas anti-sodomy law as unconstitutional. That case now I think is very much in the sights of at least some members of the Supreme Court and the conservative legal movement writ large.

0:30:43.5 Rhiannon: Yeah, Clarence Thomas, in his concurrence in Dobbs mentions Lawrence explicitly, right? Says that Lawrence v. Texas also is to him, bad law, just like Roe v. Wade.

0:30:57.2 Michael: Yeah, and a lot of the more recent gay rights cases like Windsor, which was what struck down the Defense of Marriage Act, that federal marriage is between a man and a woman, law and Obergefell, which just made gay marriage constitutionally protected, generally, both those are sort of like doctrinally muddled in a way that makes them sort of seem like stand-alone cases almost, they have equal protection and they have due process components, but Kennedy wasn't always the sharpest writer, or thinker for that matter. But Lawrence v. Texas is very much comfortably in this line of cases that Roe v. Wade was in as well, that goes back to Griswold v. Connecticut, and is about the right to privacy and this idea of the substantive component of the due process protections of liberty in the Fourteenth Amendment.

0:31:54.5 Michael: And I think that very much, at least doctrinally, puts it on the chopping block for the conservatives now. There is a question of whether they have the balls to do it, to be honest, and to weather the backlash. A lot will depend, I think, on how much they feel like they've weathered any backlash to Roe v. Wade being overturned.

0:32:16.7 Peter: Yeah, I think there are two ways to think about where they go next now that Roe v. Wade has been struck down, and it's this... You know, Roe v. Wade is of course a foundational case, and downstream of Roe v. Wade is gay rights, constitutional protections for gay rights. So the question is, where do they go next? Do you go to Obergefell and gay marriage, and politically, you might want to, politically, there's a little more appetite for that, just sort of a hotter issue...

0:32:42.4 Michael: You still have [0:32:42.5] ____ unions or whatever, right, you're not jailing people.

0:32:47.3 Peter: Right. And the conservative legal movement just sort of follows the whims of the reactionary political movement more broadly. But Lawrence v. Texas is, like Michael's saying, jurisprudentially the lower hanging fruit because it's hanging entirely on this Fourteenth Amendment due process claim, which is what Roe was hanging on. So now that they've substantially weakened it, from a jurisprudential perspective it makes sense to attack there first, and so it's a question of, what do they want to do? Do you want to go for the doctrinal route, what makes more sense doctrinally, or do you want to go for what there's more appetite for politically?

0:33:28.6 Rhiannon: Yeah, I think that's right. And we're talking about this case Bowers today because of what it shows about how conservatives argue these issues, right. So this is their argument at the time in the mid-80s about gay rights, this is what they're talking about at this time, pretty explicit, open homophobic stuff, but conservative arguments today, if you're tracking the jurisprudence, if you're tracking the development in the legal arguments, the conservative arguments today in 2022 look a little bit different. So there's no longer such straight-up explicitly homophobic language in the Supreme Court reporter.

0:34:12.2 Michael: Yeah, 'cause Scalia died, that fucking...

0:34:16.0 Rhiannon: Right, right. Scalia dying helped that. So now there are different arguments, which to be clear, are still homophobic, still queerphobic, but they're not saying gay sex is nasty, like they are in Bowers. Now, you're hearing arguments about federalism, since this right was never protected by the Constitution, this question is answered by federalism, this is for states to decide for themselves, this is for the people to decide through their elected representatives. Recall, Brett Kavanaugh's concurrence in Dobbs, where he says the Constitution is neutral on the issue of abortion. This issue is hotly debated and it should be decided by the people. Of course, what they're talking about is gerrymandered and voter-suppressed state legislatures where Republicans currently have control, but you see an anti-gay, anti-queer legal argument being shoe-horned into arguments about federalism, right.

0:35:16.6 Peter: It's subjugated to these sort of ostensibly serious arguments about the structure of our government, where Kavanaugh is saying, Well, the Constitution is neutral on the issue of abortion, we should leave it up to the state level dictatorship in Wisconsin.

0:35:32.0 Rhiannon: That's exactly right. And you can carry that forward to this issue, right, you can see Brett Kavanaugh saying something like the Constitution is neutral on the issue of gay rights, on gay marriage, whatever.

0:35:42.7 Michael: We don't have anything to say about the wisdom of jailing someone for engaging in consensual gay sex.

0:35:48.1 Peter: We're not opposed to gay people, we just don't see any basis in the Constitution for saying that states can't regulate it as they see fit.

0:36:01.6 Rhiannon: Yeah. You also see in terms of shoehorning queerphobia, homophobia into legal arguments without being explicitly and sort of disgustingly anti-gay in your legal writing. You see more focus now on religious liberty angles, Masterpiece Cakeshop is the case about whether a wedding cake designer has to make a cake for a gay couple because it violates his religion. There's a case this term coming up where a woman who designs websites has sued because she doesn't want to make any wedding websites for gay people, even though nobody has even asked her to do that. But note that legally, instead of being like, Oh, being gay is gross, the argument has shifted to, being gay is not cool with my religious beliefs, right.

0:36:52.8 Peter: And that may not have a ton of impact on sodomy laws for people, but you have... What's that bitch's name? Kim Davis?

0:37:02.5 Rhiannon: Yeah, the clerk.

0:37:06.2 Peter: But when it comes to gay marriage, for example, you have the Kim Davises of the world saying, Well, I don't want to do the administrative work of aiding someone with their gay marriage because I think that that's against my religious beliefs. So there are all these sort of avenues for people to refuse to participate in the lives of gay people.

0:37:27.7 Rhiannon: Exactly, yeah. And then finally, you see this argument about history and tradition. Conservatives are leaning on this concept of history and tradition in constitutional law right now. Recall in Bremerton from last year, this is the case about school prayer, where Gorsuch says we need to look at whether we see school prayer in history and tradition. In Dobbs, which overturned Roe v. Wade, they're, of course, looking to history and tradition of the laws about abortion. It's not that they never did this before, even in this case, in Bowers, Powell says in his concurrence, "I cannot say that conduct condemned for hundreds of years has now become a fundamental right."

0:38:09.6 Rhiannon: So they're saying this back then, right, but the Court in Bowers is also at least contending with how fundamental rights are found in the Constitution, what substantive due process rights and what they mean. Today, the concept of history and tradition is being weaponized so that they don't have to do any of that analysis, they can just go straight to the history and tradition narrative, which of course will be cherry-picked and mythologized to reach their end result. They don't have to do substantive due process analysis, they don't have to do equal protection analysis, they don't fucking believe those things are real. So they're just doing away with that sort of jurisprudence, that line of legal development altogether and saying, Oh, well, we just look at history and tradition.

0:38:52.0 Michael: Yeah, and I think it's important that right now there's a lot of anti-gay propaganda bubbling up through conservative media in a cultural sense, sort of separate and apart from the conservative legal movement, like all the book banning stuff, we need to get a gender queer out of the library and all sorts of insinuation that even schoolchildren learning that their teacher is gay is basically tantamount to exposing them to pornography and maybe putting them at risk of being victims of pedophilia.

0:39:31.3 Michael: And that shit is like very QAnony and very satanic panicky, and it is also barely, barely separated politically from what the Supreme Court is doing. Like obviously, the Court is dressing it all up in high-falutin rhetorical fancy costume, but ultimately these are synergistic movements, and what they're trying to do is create the cultural space for the Supreme Court to do something like overturn important constitutional precedents protecting gay people. And they're doing that by trying to create a critical mass of people, politically engaged people, who are scared of queer people, right, that's what they're doing. It's all part of the same political movement, and it's extremely disgusting.

0:40:29.5 Peter: Yeah. You know, the turn in the public opinion on gay rights in the mid-'00s, mid to late 00s, was the result of one of the most effective political messaging campaigns in modern history. And part of that success was framing the issue as being about self-determination and the right of individual people to do what they want and be who they want to be, as long as they're not harming anyone.

0:40:56.8 Michael: Right, and normalizing gay relationships and bringing them on TV is just normal people, they're your neighbors, they're your friends, they're whatever.

0:41:03.2 Peter: The messaging just sort of aligns perfectly with the American psyche, like a very individualistic kind of conception of liberty, and it had the right reeling for over a decade. And it's only recently that they've been able to sort of gain back ground, and they've done it by re-framing the issue, by talking about religious liberty, yes, but also by painting an image of a hegemonic liberal cultural apparatus that dominates public life and is pushing LGBT issues on you and on your kids. They're saying that this liberal consensus dominates the media, the workplace and the cultural conversation more broadly, and they use that framing to muddy the issue of whose rights are actually at stake by shifting the conversation away from the people whose actual legal rights are in question, and toward the idea that normal people are having their liberty infringed by this cultural hegemon in some abstract way.

0:42:12.0 Peter: Like you know, you allowed for anti-sodomy laws to be struck down, and gay marriage to be legalized nationwide, and what's the result of that? Drag brunches, right. And they're sort of fostering that fear, and the more successful that campaign is, the more politically comfortable the right will be attacking LGBT rights in court. And so it's important to see that throughline and to understand that this is one project that there is a direct line between some absolute lunatic on Tucker Carlson ranting about gay people all being pedophiles, and someone who is sort of seemingly serious and academic, like the conservatives on the Supreme Court.

0:43:01.8 Michael: Yeah. I mean, the degrees of separation between someone who brought guns to January 6th and John Roberts, just by their phone context is probably small. Like in a very literal sense...

0:43:19.8 Peter: Oh, yes, it's Ginny Thomas for both of that. It's just one degree of separation. The degree of separation between someone who brought guns to the Capitol on January 6th and a Supreme Court Justice is that they are married.


0:43:44.4 Peter: Alright, let's wrap. Oh, shit, next week's a good one.

0:43:50.5 Rhiannon: What is it?

0:43:52.0 Peter: Sam Alito.


0:43:56.6 Peter: Next week, a premium episode. And it's a good one. Sam Alito.

0:44:03.7 Michael: Oh, yeah.

0:44:04.4 Rhiannon: What's he up to?

0:44:05.7 Peter: We will be putting on protective gear and going into the cave where he lives, and we're gonna tell you what we find.

0:44:18.2 Peter: Follow us on Twitter @fivefourpod. Subscribe to our Patreon, patreon.dotcom/fivefourpod, all spelled out, for premium episodes, ad-free episodes, special events, access to our Slack, discounts on merch, and to support our little show. We very much appreciate it. See you next week.

0:44:44.9 Michael: Bye.

0:44:45.7 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.