The Supreme Court and Lawrence v. Texas: Historical Revisionism at Its Best
The Supreme Court’s sweeping 6-to-3 ruling on 26 June 2003, in Lawrence v. Texas, a case that focused on whether an antisodomy law in Texas was constitutional, brought history and historians to the forefront of the news. In interviews with members of the Court and the younger, more open-minded attorneys clerking for the various justices, reporters covering the high court discovered the degree to which the justices, especially Justice Kennedy, were intellectually influenced on the amicus briefs filed by a group of scholars and historians back in January 2003. Now that a few months have passed since the ruling was handed down, and Court watchers have been able to look more carefully at the controversial decision, it appears that the justices used the case not just to advance a new interpretation of principles of law, but also to embrace a revisionist interpretation of history. As such, the work of the scholars who penned the amicus is historical revisionism at its best.
In the majority opinion by Justice Anthony Kennedy including the historical analysis that took up half of his ruling, one sees that the justice was not just influenced by, but actually was persuaded by, the historians’ brief that attacked the societal presumptions, historical interpretation, and legal reasoning behind the 1986 decision in Bowers v. Hardwick—a previous case where the Court had endorsed Georgia’s antisodomy law.
In the 1986 Bowers decision, the Court accepted as fact a widely held view that in the 18th and 19th centuries, sodomy was generally illegal. In their amicus brief, though, historians George Chauncey, Nancy Cott, John D’Emilio and seven others challenged the underlying notions advanced in the Bowers case. These scholars contended that history taught a different lesson: that sexual identity is a relatively recent historical phenomenon—only about 100 years old—and that state laws that target gays and lesbians (such as the Texas sodomy law) were part of a much longer historical trend in which the states sought to regulate sex acts of not just homosexuals, but consenting adults in general.
To support their argument, the historians cited the large number of laws still on the books in many states that make no real distinction between homosexual and heterosexual offenders in such “crimes” as public lewdness, adultery, fornication, and other non-procreative sexual acts. The facts they mustered persuaded Kennedy to conclude, “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.”
The Court also turned to the historians for insight on a second issue, one that focuses on Christian theology and its various historical views of sodomy. The historians’ brief focused on how over the centuries theologians have grappled with the term “unnatural acts” and “sodomy.” The historians managed to demonstrate how sodomy became not just a religious but a legal matter in 19th-century America as colonial courts began to draw on religious and secular traditions to attempt to define the offense. The historians persuasively argued that only in the late 18th century were homosexuals first viewed as a distinct category of persons, and only in the 20th century were they targeted for discriminatory treatment as a separate class of citizens whose activities required special regulation. The historians’ conclusion: the 1973 Texas Homosexual Conduct Law had no legitimate place in our nation’s historical tradition.
Some Supreme Court watchers have characterized the Lawrence case as “the most momentous civil rights decision since Brown v. Board of Education.” While scholars may debate that point for some time to come, the Lawrence case certainly is similar to Brown in at least one aspect—the impact that historical reasoning had on Supreme Court justices in reaching their decision. In Brown v. Board of Education, the Court was influenced by the brilliant analysis of historian John Hope Franklin, whose work on the importance of the black struggle in shaping modern American identity helped to fashion the legal brief that led to the historic decision.
As gay activists now express jubilation over the Lawrence decision, conservatives show signs of using the case as a rallying point to distinguish between “conservative” and “liberal” viewpoints on what some political strategists may try to raise as a potentially divisive election-year issue—the sanctioning by the state of gay marriage. Hence, Lawrence may well become historically significant for yet another reason—as the catalyst for another culture war, one that has the potential to divide the American electorate in terms of attitudes toward sexual and other morality-centered issues. It is a battle that may well drag out long beyond next year’s presidential elections.
In the coming months, Republican and Democratic political strategists and presidential contenders will undoubtedly be watching opinion polls and may vocally stake out their views in light of public perceptions which, if recent polls are correct, seems to reflect something of a trend toward a more tolerant view of homosexuality, (though not necessarily of state sanctioning of “gay marriage”). Nevertheless, as historians have noted in their assessments of the progress of the civil rights movement as applied to African Americans—there remains a vast difference between rhetoric and the reality.
Controversy Over Reconstruction Theme Study
Recently, what was considered a noncontroversial piece of legislation (S. 500 and H.R. 332) proposing a Reconstruction Theme Study and consideration of a possible new National Park Service site focusing on the story of Reconstruction has come under fire from southern heritage groups. Representative Joe Wilson (R-S.C.), the sponsor of the House version of the bill, has been targeted to receive letters opposing the study, which would focus federal dollars and public attention on the unique Reconstruction era resources located in Beaufort County, South Carolina.
The most vocal opposition has come from the Sons of Confederate Veterans (SCV), an organization comprised of descendants and relatives of Civil War era confederates. Recently, the SCV passed a resolution opposing the theme study alleging that the study would be one-sided, and would ignore the “blight of reconstruction . . . dominated by occupying federal troops and . . . carpetbagger rule”. The SCV also expressed concerns that the Beaufort Arsenal would be turned over to the National Park Service.
However, Jefferson Mansell, director of the Historic Beaufort Foundation, disputes the claims of the SCV. “American history is not always pretty,” he said. “It is often controversial and it is always open to interpretation. Our goal . . . is that the National Reconstruction Study Act will recognize the trials, tribulations, and injustices suffered by all South Carolinians and the success and failures of that federal program.” Mansell also stated that there were no plans to turn the Arsenal over to the federal government.
Senator Fritz Hollings’s (D-S.C.) version of the legislation (S. 500) that already has passed the Senate and has been sent to the House for consideration, has the greatest chance of being enacted. Last year, the Senator secured funding of $350,000 for the study in the fiscal 2003 interior appropriations bill, but freeing up the funds for the study is dependent on the passage of an authorization bill. Consideration of both the Hollings and Wilson bills remains pending before the House Subcommittee on National Parks, Recreation, and Public Lands.
Own a Piece of the Rock
The Golden Gate National Recreation Area (GGNRA), a unit of the National Park Service, has begun selling “debris” from the former federal prison on Alcatraz Island in its book and gift store retail outlets. The pieces of concrete, the merchandising centerpiece of GGNRA’s “Save the Rock” campaign, retail for $4.95 each. The souvenirs are by-products of historic renovation efforts on a decaying cell house and guards quarters at the federal prison that once housed notorious criminals such as Al Capone and “Machine Gun” Kelly.
While few cultural resource professionals question the notable historic preservation objectives of the overall “Save the Rock” campaign, the sale of the historic fragments has met with considerable criticism from historians, historic architects, and other preservationists who ask whether such sales are not contrary to long-established national park policy. They believe the sale of such cultural objects sets a dangerous precedent that could result in historic objects—objects that may be (like the concrete pieces) deemed as having “no unique characteristics or research value”—being sold in park gift stores throughout the system.
The controversy focuses specifically on what one NPS cultural resource official characterized as “contradictory terminology in various NPS policy documents” relating to the nature of historic “fabric,” “objects and artifacts” and “specimens.” For example, NPS Director’s Order 32 states, “the sale of any object or item that is fashioned from or incorporates parts of any prehistoric or historic artifacts…is an offense against the ethical standards upon which the Service was founded.” Even stronger prohibitive language exists in the NPS Management Policies manual relating to the sale of such items by concessionaires. Rich Weideman, a spokesman for GGNRA, however, questioned the interpretation of the term “object” in NPS-32 as park officials consider what they are selling “debris.” Weideman stated, “We don’t think it detracts from the historic significance of the buildings because this stuff…would be dumped in a landfill.”
The National Coalition for History, in tandem with several of its preservation partners, has raised concerns about the sale of such objects with top level National Park Service officials.
Annual State of Declassification Report
On 23 July 2003, the Information Security Oversight Office (ISOO) released its annual report to the president on the status of the security classification program. The annual number of classification decisions made by classifiers in the executive branch increased by 14 percent in fiscal 2002 to more than 23 million individual classification actions while declassification activity declined to the lowest level in seven years. However, almost 45 million pages of information were declassified by various government agencies.
Among other statistics of interest, ISOO reported that classification-related expenditures, which include the costs of personnel security, physical security and associated infrastructure, rose to $6.5 billion in government and industry. The report also outlined the new outlook on classification spending—government agencies will have to spend money to keep information classified, rather than spending it to declassify the information.
ISOO director J. William Leonard opened the report with an introductory essay entitled “A Look to the Future of the Security Classification System in a Post 9/11 Environment.” “While there is always a temptation to err on the side of caution, especially in times of war,” Mr. Leonard wrote, “the challenge for agencies is to similarly avoid damaging the nation’s security by hoarding information.”
