The Supreme Court's landmark decision striking down state anti-sodomy laws was based largely on a finding that historically such laws applied to acts, not to certain people, because queer as folk were not known to exist when those ancient laws were written.
The majority opinion in last week's Lawrence vs. Texas decision was based in part on the court's observation that "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter."
Writing for the majority, Justice Anthony Kennedy cited the 1997 book, "Intimate Matters: A History of Sexuality in America," written by John D'Emilio, professor of history at the University of Illinois at Chicago, and Stanford historian Estelle Freedman. In their book, the historians noted that early American sodomy laws applied as well to non-procreative sex between men and women. The concept of the homosexual as a distinct category of person did not emerge until the late 19th century.
The Lawrence decision overturned the court's controversial 1986 ruling in Bowers vs. Hardwick, which upheld Georgia's sodomy law as applied to gay men and lesbians. In that earlier case, the high court stated that proscriptions against sodomy have ancient roots. That, according to Kennedy and the co-signers of the majority opinion in Lawrence, was a misreading, or at least an oversimplification, of history -- as documented by D'Emilio and Freedman.
"Far from possessing 'ancient roots,'" the opinion stated, "American laws targeting same-sex couples did not develop until the last third of the 20th century."
D'Emilio, who is director of the Gender and Women's Studies Program at UIC, has an explanation for the ignorance.
"Before the 1980s, very few historians studied the topic of sexuality," he said. "But in the last two decades, historians have tried to understand how sexual values and sexual behavior have changed, how economics, politics and urbanization have affected human sexual behavior in the past, and how sexuality itself has been a powerful force in creating historical change."
Most experts agree that the Lawrence decision is just such a historical change, and D'Emilio is glad that his historical research helped play a part.
"Scholars in the humanities can spend a lifetime doing research that we care passionately about. We know our work matters, but it is hard to explain why or how," D'Emilio said.
"And then one morning I wake up and discover that a Supreme Court justice, delivering an opinion in a major decision, quoted my work and used it as part of the historical argument that led to the majority decision -- that certainly made my day.
"In Lawrence vs. Texas," D'Emilio said, "we have a wonderfully clear example of the way the research and writing of history can make a difference in how a society defines its core values and in the direction that law, public policy and cultural values will move."
The Supreme Court's decision is online at www.supremecourtus.gov/opinions/02pdf/02-102.pdf
For more information about the UIC Gender and Women's Studies Program, visit www.uic.edu/depts/wsweb/WSweb.html
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