Challenges to the constitutionality of the amendment were immediately launched in a lawsuit filed by a number of plaintiffs, including various municipalities whose anti-discrimination ordinances would have been nullified. The suit claimed that the “‘moral judgment” expressed by Amendment 2 is nothing more than irrational hostility toward lesbians, gay men, and bisexuals. Amendment 2 does not serve any legitimate purpose.” That is, they challenged the constitutionality of the amendment to withstand the rational basis test, under which a government entity passing laws that will deliberately disadvantage a particular group must demonstrate some legitimate government purpose in so doing.

Finnis, then, had the task of showing that the Greeks disapproved of homosexuality. Questions relating to defining the category of homosexuality don’t arise, of course: natural law, along with common sense and most pre-1980 scholarship, sees categories of sexuality as essentially invariant (or invariably essential). Now, the casual observer might point out that if the Greeks disapproved of homosexuality, they had a funny way of showing it. Finnis gets around this difficulty in two ways: first, by narrowing the scope of his inquiry to include only philosophical texts, in particular those by Plato and Aristotle; second, by carefully distinguishing between same-sex affection, or inclination, or desire, on the one hand; and its actual physical fulfillment on the other. By focusing on acts rather than inclinations, any questions of the commensurability of ancient and modern sexual categories were taken out of play; and more importantly, it become possible to explain away the large amount of homoerotic material in the philosophical texts as pertaining only to desire, not to its consummation.

From a classicist’s perspective, Finnis proved to be, in effect, a weak advocate, one who should be easily trounced by any competent philologist—especially one as learned and formidable as his actual opponent, Martha Nussbaum. And in fact she did trounce him, at least so far as the published arguments go. Her affidavit, as reconstructed in her Virginia Law Review article, effectively undercuts almost all of Finnis’s specific claims concerning {275|276} Plato, Aristotle, and other philosophers. In particular, she deals very effectively with those situations in which Plato does, in fact, demonstrate some aversion to same-sex sexual activity, pointing out that Plato was in general suspicious of all bodily appetites (not just of sex, much less homosexuality) and that his finding bodily appetites and their fulfillment inferior to spiritual pleasures is not at all the same as his saying that such appetites and pleasure are “shameful, depraved, and depraving,” as Finnis claimed. In addition, she distinguishes in key passages—particularly those in the Nicomachean Ethics and the Gorgias—between the Greeks’ general approbation of, or sympathy toward, active, penetrative males and their fear of and contempt for the figure of the habitually passive kinaidos. Where Finnis spoke of attitudes toward homosexuality tout court, Nussbaum points out that to do so is at best over-generalization, at worst a complete misreading of the Greeks’ categorization of sexuality.

Obviously, Nussbaum will have the Greeks teach us a rather different lesson from the one Finnis had in mind. Rather than showing us a set of universal principles that take the form of natural law, and are instantiated with varying degrees of perfection in various legal systems, they will provide us with a contrasting world-view—one in which sexuality is less central, more equated with other appetites. Examining the Greeks (and here she quotes Foucault) will “free our thought from what it silently thinks, and so enable it to think differently” (1994:1598). Attacking Finnis on his own ground, she {276|277} invokes the Catholic branch of the natural law tradition against him: if it was possible for the Greeks, a culture we in general admire as one of our moral and intellectual forebears, “to hold that same-sex relationships are not only not per se shameful, but potentially of high spiritual and social value,” then it cannot simply be claimed that all rational persons will despise same-sex relationships. It will be necessary, if one follows the Catholic natural law tradition, “which claims to derive its conclusions from reason, not from authority,” to “be sure that we have distinguished between reasoned argument and prejudice” (ibid).

If Finnis had an unenviable task—that of showing that the Greeks disapproved of same-sex activity—Nussbaum took on, for reasons that are easy to sympathize with, a task nearly equally difficult: that of explaining away virtually every negative reference to same-sex activity in the Greek world. It’s an odd variation on the old sophistic theme: trying to make the Better case appear the Airtight; and in fact Nussbaum wound up making the Better case appear the Worse, at least in some circles. This is due in large part to the tolmêma controversy, in which it would appear that Nussbaum cited an earlier edition of Liddell and Scott in order to avoid having the definition “daring or shameless act” appear as one of the word’s possible meanings when considering how best to render a passage in the Laws.

Finnis seized on this inconsistency and ran with it. Rather than being a minor oversight, or even a deliberate but small trick to present her case in the best possible light, he viewed Nussbaum’s testimony as “a wholesale abuse of her scholarly authority and attainments.” His article in Academic Questions (a journal published by the National Association of Scholars) begins with a condemnation of the historical inaccuracies he alleges existed in testimony before the Court in various abortion cases, and goes on to see Nussbaum as a further practitioner of “law office history,” a sort of scholarship that is an “attempt to get the American people to constitute themselves around conceptions of their own past, and the past of their civilization, that are profoundly untrue” (Finnis 1994b:35).

There is some irony in the fact that Plato could be brought in as a champion of liberties—religious and social—that accord ill with his large parts of his philosophical corpus; and that Plato’s voice should be used to champion democratic decision-making. Also ironic is the notion that Greek ideas about sexuality should be seen as a liberating force, a counterweight to our own prejudices. Yes, same-sex behavior and affection were given greater leeway in Greece than they traditionally have been in the Judeo-Christian world—but only if they conformed to certain rigid notions of masculinity, in which grown men were expected to be active, dominant, penetrating partners, and were subject to severe disapproval if they varied from this norm. Further, if we are to use the Greeks as models of enlightenment concerning homosexuality, does this imply acceptance of their entire misogynistic gender system? For classicists to testify in court about the Greeks’ philosophy, their loves, their ideas of friendship and the common good, yet passing over in silence the seclusion and denigration of women that were a contributing, and perhaps a necessary, precondition for the glories of their masculinist culture, seems at best bitterly ironic, at worst a betrayal of our scholarship and our personal moral principles.

Neither side, then, presented an uncontroversial view of ancient sexual categories and their possible relevance to modern civil liberties. Yet suppose Nussbaum had wanted to make the strict constructionist, anti-essentialist argument outlined above—could she have done so? After all, this would involve explaining the history of scholarship: the fact that scholars up until about 1980 accepted certain categories as unproblematic and universal, but now believed quite the opposite. Such an argument would, in fact, be subject to easy “refutation,” if by refutation is meant finding eminent scholars (quite likely, even a majority of the reputable sources on the subject) to affirm essentialism. Explaining to a court a lot of details about Greek sexual practices and attitudes, talking about Foucault, trying to get them to accept a proposition that is on the face of it seriously counter-intuitive—all this certainly seemed an ill-advised and quixotic project. Add to this the fact that constructionism is sometimes viewed with disdain or embarrassment within the gay community, in part {280|281} because it can be seen as undermining a hard-won identity and giving ammunition to cultural conservatives who view homosexuality as a conscious choice.

Several of the issues we have identified resurfaced in the U.S. Supreme Court’s decision on Lawrence v. Texas in June, 2003. But first, a recap of the notorious earlier case, Bowers v. Hardwick, that was overturned by Lawrence (after having been seriously damaged by Romer v. Evans). The Bowers case started in 1982, when Michael Hardwick was charged with violating a Georgia statute criminalizing sodomy, the text of the act reading as follows:

The question as White framed it was this: what is the nature of the rights that are said to qualify for heightened judicial protection? Defining “fundamental liberties,” White quoted a pair of cases to the effect that such rights are “implicit in the concept of ordered liberty … (such that) neither liberty nor justice would exist if [they] were sacrificed,” and that these liberties are those that are “deeply rooted in this Nation’s history and tradition.” He continued: “It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots … to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious” (Bowers 191–192). {282|283}

White then launched a manifesto against judicial activism (Bowers 194–195):

Finally, the Court rejected the possibility of overturning the law under the easier-to-pass rational basis test: the fact that there is a “presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable” (Bowers 196) is sufficient; the law, White points out, is frequently based on notions of morality.

Chief Justice Warren Burger weighed in with a concurrence of particular significance for us here, emphasizing the “ancient roots” of the proscriptions against sodomy. “Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law … To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching” (Bowers 196–197).

It was at this point where historians began to come in to the story, as well as psychologists. First, the Court was taking the “ancient roots” quite seriously, going back as far as late antiquity: the citations to sodomy as capital crime under Roman law were to the law codes of Theodosius and Justinian, and there were subsequent citations to the law codes enacted under Henry VIII. Further, there were references to the sodomy laws prevailing in the original thirteen colonies at the time of Independence (so we see that the historicist arguments used ten years later in Romer v. Evans were already present in the debate over sodomy laws). Clarifying whether or not all ancient societies held similar judgments would, in fact, be relevant to this Court.

Other issues are worthy of mention. First, Blackmun outlined the limits of deference to tradition, which will prove to be a key factor in Lawrence: “Like Justice Holmes, I believe that it is revolting to have no better reason for a rule {283|284} of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past” (Bowers 199). Second, he referred to the Court’s “almost obsessive focus on homosexual activity”—after all, Burger’s brief concurrence added no new doctrine or interesting dicta, and was merely an attack on sodomy per se—and in particular the ways in which this obsessive view of the Court misstated the apparent intent of the Georgia law, which is gender neutral. Third, and perhaps most interesting from a classicist’s perspective, is the analysis of whether or not homosexuality is a condition. Recognizing changing attitudes, Blackmun pointed out that homosexuality is no longer viewed as a disease by mental health professionals, but is also not a matter of deliberate choice. “Homosexual orientation may well form part of the very fiber of an individual’s personality … an individual’s ability to make constitutionally protected decisions concerning sexual relations … is rendered empty indeed if he or she is given no real choice but a life without any physical intimacy” (Bowers 203). The question adumbrated here was to what extent gays can be protected under the Equal Protection Clause without having to face the additional burden of proving that they are a suspect class; that is, one that has experienced a history of past purposeful discrimination or unequal treatment, and which is defined by a characteristic that is “obvious, immutable or distinguishing,” and whether it has met with systematic exclusion from redress via the normal political process. That is, the Court (or rather, a substantial minority of it) accepted that homosexual identity is a category that exists and is immutable for given individuals, and that these individuals are unduly burdened by sodomy laws.

Hardwick was, of course, one of the most controversial decisions of the Burger Court, one attacked not only by liberals and gay activists, but also by conservatives of a libertarian bent. It was reported soon afterward that Lewis Powell, the swing vote on the case, had changed his vote after intense lobbying from the Chief Justice, and within a few years Powell himself made it known that he regretted this vote more than any other. In addition, as was revealed in his 1994 biography, Powell was operating in near-total ignorance of homosexuality, claiming that he had never to his knowledge met a homosexual—despite the fact that one of his clerks at the time was gay, but closeted. (We may recall Posner’s 1992:346 remarks about “the narrowness of legal learning,” and his assertion that “what lawyers and judges mainly know is their own prejudices {284|285} plus what is contained in judicial opinions.”) The Court itself seemed rather embarrassed by the Hardwick decision: as some scholars have pointed out, it was not always relied upon for precedent, and a mere ten years later it was partly overturned by the verdict in Romer.

It was not entirely overturned, of course—that didn’t happen until Lawrence—but it was weakened as regards its key implications. The Court’s finding in Romer v. Evans was based on the Equal Protection Clause of the Fourteenth Amendment. Writing for the majority, Justice Anthony Kennedy quoted with approval the 1973 decision Department of Agriculture v. Moreno (413 U.S. 528): “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest” (Romer 1632). And the Court does in fact find that this was the intent of Amendment 2, rejecting the notion that the amendment merely “deprives homosexuals of special rights … to the contrary, it imposes a special disability upon those persons alone. (They) are forbidden the safeguards that others enjoy or may seek without constraint” (Romer 1626–1627). Since gays and lesbians do not constitute a suspect class, heightened scrutiny is not warranted; instead, the State must pass the simpler rational basis test, of the law bearing “a rational relation to some legitimate end.” Indeed, the Court finds this sort of deliberate, broad-based singling out of a group for hardship rare and unjustifiable.

Yet in his dissent Antonin Scalia found a rationale. Opening with the salvo “The Court has mistaken a Kulturkampf for a fit of spite,” he defends the amendment as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” And he continues with a point whose logic is hard to deny (Romer 1631):

On one evening in 1998 the petitioners in this case, John Lawrence and Tyron Garner, were engaged in anal sex in Lawrence’s apartment. The Houston police, apparently not realizing that delicto is normally a dead metaphor, responding to a call regarding a man with a weapon, broke into the apartment and found Lawrence and Garner in flagrante delicto. The police arrested the pair, who spent a day in jail before being released on bond. They sought, at the level of the Harris County criminal court, to have the charges dismissed on constitutional grounds; when this failed, they pleaded nolo contendere to the charges, were fined $200 plus $141 in court costs, and pursued the case to the Court of Appeals; when this was unfruitful, to the Supreme Court.

This was, in many respects, a better test case than Hardwick: first of all, the petitioners suffered actual harm: the conviction could debar them from or restrict their entry into a variety of professions in Texas. Further, after such a conviction they would have to register as sex offenders if they moved to certain states. The arguments that made Hardwick seem less compelling—no real prosecution; “no real harm” clearly did not apply here. Further, the fact that the Texas statute applied only to same-sex sodomy allowed the petitioners to raise an Equal Protection claim, since they were in fact members of a class being singled out, as they maintained, for its unpopularity, and therefore the precedent established by Romer was much more on point than it would be for a gender-neutral law. And, oddly enough, the fact that the petitioners were engaged in anal rather than oral sex also made it a better test case, since some recent Constitutional scholarship has argued that oral sex is not generally prohibited by pre-twentieth century sodomy laws, and was not therefore the {286|287} object of a proscription that had “ancient roots.” This particular dodge would not work, and the Court would have to face squarely the question of whether such ancient proscriptions were to be overthrown.

The petitioners sought to have the case examined under both the Due Process and Equal Protection Clauses, and to have Bowers invalidated. The majority opinion, again written by Kennedy, concluded that the Due Process Clause was the relevant section of the Constitution, and that Bowers needed reconsideration. The Equal Protection Clause was not considered entirely sufficient for the Court’s ends, although it was invoked in Sandra Day O’Connor’s concurrence.

Instead of focusing on “homosexual sodomy” the court spoke of dignity, choice, and bonding. Yet even when the decision had been made to regard private, in the home, sexual conduct as a liberty interest, protected by the doctrine of substantive Due Process, two loose threads remained: first, how to deal with the objection that “proscriptions against this conduct have ancient roots”; and second, how to overcome the principle of stare decisis, in which a Court is loath to overturn the decisions of its predecessors.

In fact, the Court adopted a version of the social construction theory of sexuality to explain why sodomy laws used to be gender neutral, and to try to get at the original intent of the framers of those laws. First, Kennedy noted that “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter” (Lawrence 7). That is to say, beginning with the Reformation Parliament of 1533 and continuing through the nineteenth century, sodomy laws were thought to prohibit certain types of acts between men and women, or between men and men. Why the change? “The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century.” Kennedy then quoted from Jonathan Katz’ The Invention of Heterosexuality: “the modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions” and concluded: “Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons” (Lawrence 7–8).

Continuing further in his history of sodomy laws, Kennedy (Lawrence 10) suggests that,

Several things are worth noting here. First, the rhetoric of possibility and uncertainty: the Court was seeking a way to get around the earlier proscriptions of sodomy, a way to deflect their relevance for this particular case. The fact that the situation is not so simple as had been claimed, that many scholars now argue that there were no recognizable homosexuals before 1892, provided a window of opportunity. The kind of reading now favored by literary critics in which openness, lack of closure, and dialogue are valued above certainty and structure (what might be termed the “Symposium” approach), has come to prominence in legal discourse as well. The second noteworthy point is the irony that ancient theories concerning sexuality should be triumphing in their most radical form: while the sources cited are not classical, they clearly depend on Foucault’s History of Sexuality and its problematization of sexual categories (and, to a lesser extent, on the work of followers of Foucault such as David Halperin and Jack Winkler). The constructionist view of sexuality is brought in as a way of silencing the strict constructionist, original intent, approach to the interpretation of law. Third, the construction of the gay subject comes at precisely the right historical moment for the Court’s purposes (the straight subject is constructed, too, of course, but heterosexuality is, as always, viewed as unproblematic). That is, for the Court’s reasoning to work, categories of homosexuality and heterosexuality cannot exist during the formative period for sodomy laws, which lasts up until the end of the nineteenth century. And yet that category must exist now, since it is being subject to attempts at discrimination, and is an identity that marks out a class of citizens deserving of equal protection under the laws. Ironically, one of the reasons I mentioned earlier for resistance to constructionist theories of sexuality—that, whatever their truth value, they might lead to discrimination on the grounds that a constructed sexual identity is infinitely mutable, and a conscious choice—seems not to apply here at all. In what must be seen as the most important decision ever relating to gay rights in the United States, constructionism played a crucial role.

Of course, our sexualities, constructed as they are, are real, just as the sexual categories of the nineteenth century, or of fifth-century Athens, were real to those who inhabited them. But now we have seen them reified by the Court, in what we may view as the latest step in a long process of the construction of the modern subject. The Court’s own analysis mentions the evolution of sodomy laws from being directed at sexual predators, on the one hand, and {289|290} those who shirked their reproductive duties, on the other. In this analysis it is possible to see the well-known evolution of sexual categories, the move from the earlier equation of same-sex activity with pederasty and infertility, to its construction as a medical and legal condition: the mobilization of the juridico-medical regime that Foucault spoke of.

The Court’s logic concerning the construction of sexuality is, of course, by no means unassailable. Suppose that the Framers of the Constitution, and the legislators of the various states as they were admitted to the Union, had believed in homosexuality as a category and deliberately disadvantaged homosexual status and behavior with their legislation. The Court would then have to take those legal and moral strictures more seriously; but at the same time it felt free to override the express will of the current majority of actually existing citizens in such cases as Romer v. Evans, and to do so more freely because they lacked the aura of tradition. That is, the Court’s particular line of logic may be seen as a sop to foundationalism, as a way of making a rather radical departure from precedent seem less radical.

At this point the Court in essence issued an apology for its earlier decision, citing the 1955 Model Penal Code of the American Law Institute (which recommended removing criminal penalties for consensual sex), and even referring to the practices of the European Court of Human Rights (a very inclusive gesture, and one that nods as well towards the more liberal branches of natural law that underlie the human rights movement and much international legal theory). The Court continued by citing its own decision in Romer, reiterating that a “provision ‘born of animosity toward the class of persons affected’ has no rational relation to a legitimate government purpose.” Other criticism of Bowers is said to have weakened it (here Posner is cited, among others), and in essence turns John Paul Stevens’ dissent in that earlier case into a majority {290|291} opinion: “Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.” The opinion concludes with the following words (Lawrence 18):

A text consists not only of itself but also of the readings of it made throughout its history, and needs interpreters to bring out its true meaning, whether that text be Plato’s Symposium or the United States Constitution. All judges are, by necessity, reception theorists. {291|292}