Though America’s academics tend to the dyspeptic and hypercritical, on one day this past year, the campus mood was extraordinarily sunny.  This past June, the U.S. Supreme Court handed down its decision in Lawrence and Garner v. Texas, declaring unconstitutional a law prohibiting homosexual conduct.  In the eyes of most academics, Lawrence represented an act of liberation little short of the great desegregation decisions of the 1950’s, and the celebrations were loud and obvious, all the more so since the Court had based its decision in part on professorial advice.  Someone was actually listening to us?

Even among conservatives, opinions can differ on the outcome of Lawrence.  A respectable libertarian view holds that government should have no role in private and intimate behavior of the sort at issue in this case, so, from that view, the decision was correct and overdue.  Nobody, however, conservative or liberal, neo or paleo, should view the process that led to this decision with anything but alarm.  If the justices had struck down Texas’ sodomy law on plausible legal grounds, there would have been little cause for complaint.  What the Court actually did in Lawrence, however, is exactly what it is often accused of doing, but which it rarely does quite as shamelessly or blatantly—namely, deciding that a particular reform is a Good Thing and then making up some spurious or fictitious grounds on which to justify the result.  My academic colleagues should bear in mind that, if a centrist or liberal Court can act in such a partisan and capricious manner, nothing restrains a future conservative judiciary from behaving just as despotically.  We all lost with Lawrence.

Much of the majority decision in Lawrence relied on a brief filed by a caucus of academic historians.  Now, anyone who knows the academic profession knows that it has unabashed left-liberal political leanings, and, if any observer believed that this brief was going to be balanced or objective, he was deluding himself.  Less surprising than the partisan nature of the brief, however, was that the Court bought it so entirely.

The brief—and the resulting decision—offers a phantasmagoric historical survey of the law on sexuality, which implies that homosexuality was not criminalized in America until the past few decades.  The majority of justices agree that, “Far from possessing ‘ancient roots,’ American laws targeting same-sex couples did not develop until the last third of the 20th century.” 

Throughout American history, the authorities . . . rarely enforced statutes prohibiting sodomy, however defined . . . Indeed, records of only about twenty prosecutions and four or five executions have surfaced for the entire colonial period. . . . early sodomy laws seem not to have been enforced against consenting adults acting in private.

Scattered among this amazing argument are some nuggets of fact.  Undoubtedly, sodomy laws were loosely written and, at various times and places, were applied to many acts other than adult homosexuality.  And quite likely, the enforcement of morality laws in any period is random and patchy.  The historians’ brief, however, is scandalously inaccurate.  For one thing, its definitions shift kaleidoscopically according to rhetorical need.  In 1646, for instance, a Connecticut man was executed for engaging in mutual masturbation with several youths, which one would think a convincing demonstration that homosexual behavior in private was rather frowned upon.  Not at all, we are told.  Sermon texts of the time are used to show that he was executed not for homosexuality but for interfering with the normal means of procreation, “frustrating of the Ordinance of marriage.”  The implication is that Connecticut would have dealt just as harshly with a modern condom user.

Nor should we place much weight on the observation that homosexual behavior resulted in few convictions.  How many 18th- or 19th-century cases are there of what we today call child sexual abuse?  They existed, certainly, but since they were not that numerous, are we to assume that this conduct was not stigmatized or that it should now be legalized?  How about cases of corporate or white-collar crime?  Were they any more frequent in colonial days than convictions for homosexual sodomy?

Any acquaintance with the social or legal history of early modern Europe or America shows that homosexual behavior in private, between consenting adults, could and did lead to capital punishment—including, in some spectacular English show trials, the execution of peers of the realm and one Anglican bishop.  Though the modern idea of homosexuality as a condition or status only dates to the 19th century, long before that, it was quite easy to be convicted and punished severely for homosexual acts.  In all its main tenets, the historians’ brief is transparently false, and it is astonishing that the Court should have given it the credence they did.  Ultimately, however, who cares?  After all, the Court reached the Right Result: exactly as it did with equally tendentious historical misstatements in Roe v. Wade.

The best argument against the liberal decision of Lawrence comes from a rather unlikely source—namely, Franklin Roosevelt—who, in his second term, threatened to pack the Supreme Court in retaliation for its aggressively politicized conduct.  Roosevelt declared that 

The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third House of the Congress—a super-legislature. . . . reading into the Constitution words and implications which are not there, and which were never intended to be there.

The President condemned “a judiciary so independent that it can deny the existence of facts which are universally recognized.”  Then, the malefactors were the conservatives; today, they are the liberals.  And tomorrow?  Lawrence v. Texas offers an excellent argument for curbing the superlegislature once and for all.