New Paper – Sonia Katyal on Lawrence v. Texas

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For some of my posts during this guest-blogging stint, I’ll provide a link to, and abstract of, interesting gender/feminism/discrimination-related papers I stumble across.   Here’s one I just got in some of my SSRN spam: Sonia Katyal, Sexuality and Sovereignty: The Global Limits and Possibilities of Lawrence.   I’m always impressed when people (like Katyal here) can analyze a major, much-analyzed case several years after the fact and still have something new or creative to say about it.   Here’s her abstract:

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas’ prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the decision; it represents a culmination of nearly a century’s worth of work in dismantling prejudicial views on gays and lesbians in American law and, indeed, the rest of the world.

In this article, I explore Lawrence’s hidden and unstated implications for the recent globalization of gay civil rights, and contemplate whether Lawrence is yet another symbol of a global wave of change, or whether it represents an ultimately unfulfillable goal worldwide, particularly in places where gay civil rights movements have been met with considerable backlash. I will argue in this paper that a close reading of Lawrence represents a culmination of a historic, and increasingly global, convergence between liberty, privacy, and anti-essentialist theories of sexual identity. Indeed, the ultimate significance of Lawrence lies not in its overt shielding of sexual minorities from criminalization, but rather in its willingness to offer to the American (indeed global) public, a version of sexual autonomy that is filled with both promise and danger, fragility and universality. For, quite unlike Bowers, which largely directed its judicial gaze towards gays and lesbians in particular, the court in Lawrence carried a message of sexual self-determination for everyone, irrespective of sexual orientation.

Emerging from this decision is a vision of sexual self-determination, what I call “sexual sovereignty,” that represents the intersectional convergence of three separate prisms: spatial privacy, expressive liberty, and deliberative autonomy. At the same time, by examining the case law that has flourished in its wake, we see that it has often been correlated with an implicit logic of containment that has relegated the exercise of sexual autonomy to private, rather than public, spaces. In creating a space for the convergence of all three facets, I would argue that Lawrence is a triumph – and a product – of anti-essentialism, but its implicit logic of containment limits its potential to traverse both theoretical and global divisions regarding culture and sexuality. Consequently, ultimately, despite the power of its universalist vision, this Article argues that Lawrence is circumscribed by potential limitations wrought by culture, property, nationality, and citizenship.

– Scott Moss

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