In a careful and compelling reading of the text of the Supreme Court's opinion in Bowers v. Hardwick, Janet Halley provides a meticulous map of the misprisions by which the Hardwick Court "exploit[s] confusion about what sodomy is in ways that create opportunities for the [judicial] exercise of homophobic power." According to Professor Halley, the duplicitous mechanisms the Hardwick Court marshals in reasoning about sodomy entail a mobilization of two "incommensurable articulations": the idea of the sodomitical act, on the one hand, and that of personal identity, on the other.
Professor Halley rightly insists that an anti-homophobic critique of Hardwick should refuse to confine itself to "questions whether the Court's analysis is more fundamentally act-based or identity-based, and whether it can be better refuted from an act- or identity-based position." Because both paths ultimately lead to the same conceptual cul-de-sac, Professor Halley urges us to focus instead on the dually duplicitous stratagem by which the Hardwick Court simultaneously deploys act- and identity-based theories of sodomy.
Law | Sexuality and the Law
The Eclipse of Reason: A Rhetorical Reading of Bowers v. Hardwick,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2176