The Case for Gay Rights: From Bowers to Lawrence and Beyond

Vol. 15 No.11 (November 2005), pp.1014-1018

THE CASE FOR GAY RIGHTS: FROM BOWERS TO LAWRENCE AND BEYOND, by David A. J. Richards. Lawrence: University Press of Kansas, 2005.

256pp. Cloth. $29.95. ISBN: 0-7006-1391-9.

Reviewed by Sharon G. Whitney, Department of Sociology and Political Science, Tennessee Technological University. Email: swhitney [at] tntech.edu.

David A. J. Richards, Edwin D. Webb Professor of Law at New York University, argues persuasively that “America is in transition between patriarchal and democratic culture, and gay rights is at the cutting edge of this transition, showing how far we have come and how far we have yet to go” (p.x). He begins his book with two questions. “What role does judicial review play in the development, recognition, and protection of basic human rights in the United States? What is the relationship of such judicial review to protest movements?” His thesis is that the post-World War II struggle for gay rights and its impact on American constitutional law is “the most recent chapter in this story,” for which his book offers a “gripping” insider perspective as “a leading constitutional scholar and a gay man” who has participated in the evolution of a personal and political “resisting voice” (p.xi). In lawyerly style, he parses written judicial opinions of several cases settled by the Supreme Court of the United States, including a critique of those on the majority side in BOWERS v. HARDWICK in 1986 (denying the protection of constitutional privacy to gays and lesbians) and an applause for the majority opinion in LAWRENCE v. TEXAS in 2003 (overruling BOWERS). He considers two precedents leading to LAWRENCE—PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992) (reaffirming ROE v. WADE (1973) on a woman’s right to abortion with no undue burden imposed by state regulations) and ROMER v. EVANS (1996) (striking down a state constitutional amendment depriving and denying homosexual orientation equal rights under the law). He also touches upon the significance of LAWRENCE for GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH (2003) (legalizing marriage for same-sex couples in Massachusetts.)

Richards considers arguments from scholarly explorations in philosophy, an interpretative history of constitutional law, and psychology and literature, all of which he weaves together to bolster his struggle for a voice of resistance against homophobia. His endnotes alone run for nearly 40 pages, and his bibliography is 15 pages, including all nineteen of his own writings (pp.226-227).

In Chapter One, “The Personal as Political,” he writes, “[m]y hope is that structuring my argument as a mapping of personal and constitutional law history will bring alive to the reader the role that developments in constitutional law play in the lives of Americans” (p.2). I think he succeeds. I was moved by his recounting of the loving influence of his (Italian Catholic) parents, particularly his strong feminist mother, and the [*1015] influence of philosophy aligned with an ethical defense of gay rights.

Others may resonate with the fact that Richards studied directly with the best of liberal philosophers, especially during his undergraduate years at Harvard University with John Rawls, and then went to Oxford University where he worked with H.L.A. Hart. The attraction to Hart is explained as a function of the latter’s defense of the British Government’s 1957 WOLFENDEN REPORT (recommending decriminalizing homosexual sodomy based on the utilitarian theory in ON LIBERTY by John Stuart Mill [1859]). As Wasserstrom (1971, at 1-9) explains in an introductory essay to his MORALITY AND THE LAW, Hart’s writings were a response to an attack on decriminalization by Lord Patrick Devlin, which continues, particularly in America, and has implications for legal enforcement of private morals beyond sexual acts, including euthanasia.

After studying with Hart (and R.M. Hare), Richards returned to the US, published his dissertation (1971), and received his law degree at Harvard. Thereafter, he began to practice law with a Wall Street firm. In 1974 he began to teach constitutional law, first at Fordham University Law School, before going to NYU School of Law.

Other gay rights scholars, advocates, and activists may also relate to Richards’ description of transformation in his personal life and scholarly development. In 1974 he met Donald Levy, another philosopher, who ultimately became his lifetime domestic partner of some thirty years. “We originally met as academics, through a mutual straight friend, to study issues of mutual concern, including the philosophy and psychology of love. As we studied and discussed philosophy and psychology, in particular Plato’s SYMPOSIUM and PHAEDRUS and Freud’s works, we also closely studied one another. As we studied love, we fell in love” (p.9). This moved him beyond philosophical abstraction and law practice to teach constitutional law, linking his academic scholarship to the gay rights protest movement while it was still in its infancy.

The rest of the book is divided into three parts of scholarly analysis. Part I, “Philosophy,” consists of just one chapter, in which Richards elaborates on the post-World War II foundation in the moral and political philosophy of liberalism. Part II, titled “Law,” is the thickest part, with seven chapters, and Part III, “Psychology,” also consists of just one chapter.

The philosophy of gay rights draws on Jeremy Bentham and John Stuart Mill’s principles of “utilitarian equality” (pp.17-22) and Immanuel Kant’s notions regarding “contractualist equality” (pp.22-23). Richards teaches the reader how both forms of equality are at the foundation of liberal political philosophy and constitutional law. In fact, his understanding, with which I think I agree, is that contractualist equality provides stronger support for Mill and liberty, thus constitutional law and gay rights.

Utilitarianism is based on an analysis of the ethical consequences of acts rather than an a priori rule of ethical conduct, which is linked to contractual equality. Whereas Bentham adheres to a values-neutral ground between individual [*1016] self-interested calculations of pleasure and pain and social democratic development, Mill revised the values-neutral element by advancing individual liberty as a superior utility for personal development, asserting the consequential principle that, as long as one does no harm to others, a democratic society and rule of law ought not to intervene into the life of the person. Hart amplifies on this principle as applied to decriminalizing homosexual sodomy. However, according to Richards, Bentham was one of the first philosophers to write a paper favoring the decriminalization of homosexual sodomy, albeit an unpublished one (p.18). With contractualist equality, the analysis rejects pleasure/pain as the basis of a personal calculation in favor of an a priori rule supposing moral dignity for each human being and the universal ability to exercise moral reasoning, thus enabling empathy for any given situation, including resistance to homophobia.

The law basis of gay rights covers abolitionism and first wave feminism, as well as post-World War II landmark cases familiar to most law and court specialists in political science. A useful concept that ties various historical forms of oppression together is “moral slavery” (p.28), which Richards developed in four earlier historical works of jurisprudence, including WOMEN, GAYS, AND THE CONSTITUTION: THE GROUNDS FOR FEMINISM AND GAY RIGHTS IN CULTURE AND LAW (1998).

Richards highlights how doctrinal developments in free speech, black civil rights, feminist jurisprudence, including the right of privacy, and sexual orientation as a suspect classification provide a rich constitutional development context favoring gay rights, as well as useful analogies from which gay rights advocates and activists may draw, enabling both a deserved critique of BOWERS and support for LAWRENCE and GOODRIDGE.

In his chapter dealing with free speech and gay rights, Richards poses an intriguing question regarding why gay rights in American constitutional law was so late in developing. He observes that, before the Civil War libertarian and egalitarian democratic voices were plentiful, including the radical and revealing poems of Walt Whitman, but after the War, a conservative anti-obscenity backlash repressed such American protest movements, including that for gender-role liberty and feminist equality, even as applied to intimate sexual behavior. Then, after World War II, in response to 19th century anti-obscenity legislation, the Supreme Court of the United States relaxed its standards, helping to empower free expression for Planned Parenthood, sexual privacy interests, and gay rights (pp.30-32).

In the chapter on religion, race, and gender as useful analogies for gay rights, I found his point about the purpose of analogies in constitutional rights analysis most insightful. The purpose is not to show factual similarities in traits vulnerable to victimization, but rather to show similarities in oppressive strategies (p.40).

In his chapter on sexual orientation as a suspect classification, Richards further develops the analogies from religion and gender. Moreover he applies them against “anti-lesbian/gay initiatives” [*1017] (pp.116-120) and “exclusion from the military” (pp.120-127).

Psychology, Richards’ third and final basis for gay rights, is linked to his recent study of voices of resistance to patriarchy. These voices derive not only from feminist psychology (e.g., Gilligan 1982), but also from male voices in history and literature on behalf of “democratic manhood” (p.151). In fact, he has recently published a book titled DISARMING MANHOOD: ROOTS OF ETHICAL RESISTANCE. Democratic manhood stands in contrast to a regime of “men, honor, and obligatory violence” (p.150). Such a regime highlights patriarchic codes of honor (e.g., virginity, monogamy, and chastity), requiring acts of violence when strict controls over female sexuality are threatened. Overall, I found this part of the book most unique methodologically in relation to published works of political jurisprudence generally, and to gay rights specifically. Here, Richards also reveals that Hart struggled with severe depression because he was gay, yet he was nonetheless married (unhappily) with a family (p.158). Because Richards learned of this fact relatively recently, he writes that it reaffirms his decision to move beyond abstract philosophical argument to expressing an ethical voice of resistance, relying on constitutional law, history, psychology, and literature. Here, he also reiterates that, ultimately, the struggle to express an ethical voice of resistance to homophobia was motivated by caring to defend his personal loving gay relationship (p.159).

REFERENCES:

Freud, Sigmund. 1959 (Vol.9)/1961 (Vol.21)/1964 (Vol.21). STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD. Ed. by James Strachey. London: Hogarth Press.

Gilligan, Carol. 1982. IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT. Cambridge: Harvard University Press.

Mill, John Stuart. [1859] 1956. ON LIBERTY. Reprint. Edited by Curris V. Shields. New York: Bobbs-Merrill.

Plato. 1964. THE COLLECTED DIALOGUES OF PLATO. Edited by Edith Hamilton and Huntington Cairns. New York: Pantheon.

Richards, David A.J. 2005. DISARMING MANHOOD: ROOTS OF ETHICAL RESISTANCE. Athens: Ohio University Press.

Richards, David A.J. 1998. WOMEN, GAYS, AND THE CONSTITUTION: THE GROUNDS FOR FEMINISM AND GAY RIGHTS IN CULTURE AND LAW. Chicago: University of Chicago Press.

Wasserstrom, Richard A. (ed). 1971. MORALITY AND THE LAW. Belmont, CA: Wadsworth Publishing Co.

Whitman, Walt. 1975. WALT WHITMAN: THE COMPLETE POEMS. Edited by Francis Murphy. Harmondsworth, U.K.: Penguin. [*1018]

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH, 798 N.E. 2d. 941 (2003).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 US 833 (1992).

ROE v. WADE, 410 US 113 (1973).

ROMER v. EVANS, 517 US 620 (1996).

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