"You are Entering a Gay- and Lesbian-Free Zone": On the Radical Dissents of Justice Scalia and Other (Post-) Queers

Bernard E. Harcourt, Columbia Law School


The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The court's ruling is the coup de grace to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal law representations. As a matter of federal due process, courts reviewing penal legislation must now deploy some other principle to distinguish between permissible and impermissible majoritarian moral opprobrium.

What that other principle will consist of is not clear. Justice Anthony Kennedy's opinion for the majority in Lawrence offers a dizzying array of possibilities – a rhetorical smorgasbord of legal authority. Justice Kennedy's pastiche is, at a legal theoretical level, incoherent and under normal circumstances – in many other cases – would be internally contradictory. The theoretical incoherence and rhetorical overkill of Justice Kennedy's opinion lends credence to Justice Antonin Scalia's incendiary dissent in Lawrence, specifically to the idea that the majority's holding is no technical knock-out victory for liberal legalism, but rather a politically or culturally partisan decision. What is missing from Justice Scalia's dissent, though, are the important nuances and subtleties that shape the contemporary sex wars, that make them so fascinating and so unpredictable, and that both resignify and ambiguate the purported gay victory in Lawrence.

This Foreword probes the fragmentation of sexual projects in the West and its implications for the sex wars and the penal law. It is intended as a guide or manual for the interpretation of the result in Lawrence and future sex battles. Part I focuses on the fracturing of sexual projects and demonstrates that it is, today, far too simplistic – in fact profoundly counterproductive – to describe the culture wars as a two-party conflict or to talk about a "homosexual agenda." In the Lawrence litigation, this point was brought home in the surprising coalition opposing the Texas statute. The question this raises is: what kinds of fissures split the gay community? What would it sound like to argue from a gay-friendly perspective against the ruling in Lawrence? Part II explores this question and develops, through a pastiche of radical statements, a politics that embraces the marginal, even criminal desire to transgress for the sake of transgression, that thrives on rebellion against hegemonic legal regimes.

With this in place, Part III reconstructs Scalia's radical dissent and sharpens it to produce a keener interpretive framework to understand the result in Lawrence and future sex wars. Scalia is right that there is a culture war and that the courts are inextricably involved in those wars. He is also right that the court is shaped by the legal profession and that their decisions are largely shaped by the law profession culture. This culture and the legal academy that reproduces it are by and large more tolerant of homosexuality than many other sectors of society. The decision in Lawrence is the product of this law profession culture, and, at least on the surface, is gay-friendly – it favors the interests of liberal pro-gay-rights advocates. But it does not necessarily promote the interests of all gay-friendly. It is here that the Foreword probes the Lawrence decision – dark side and all.