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Sociology
Social Stratification

Deconstructing Sodomy

Profile image of Leslye HuffLeslye Huff

1997

Abstract
sparkles

AI

The paper explores the meanings and implications of sodomy within American law, specifically the impact of sodomy laws on the rights of lesbigay citizens. It adopts a multidisciplinary approach that encompasses legal, political, and social analyses, while acknowledging intersectional factors such as race, gender, and class. Rather than merely presenting legal analysis, it emphasizes the importance of personal narratives and experiences in understanding the broader cultural implications of sodomy laws.

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References (79)

  1. See Irons, supra note 32, at 126. Officer Torrick identified himself to Hardwick's room- mate, and after he left, the roommate immediately informed Hardwick about the officer's visit. Id. 42. SeeIrons, supra note 32, at 126.
  2. SeeIrons, supra note 32, at 126.
  3. SeeIrons, supra note 32, at 126.
  4. SeeIrons, supra note 32, at 126.
  5. See Irons, supra note 32, at 126. The customer was so drunk that he did not even notice when Hardwick came home nor that his lover had come with him. Id. 47. See Irons, supranote32, at 126.
  6. SeeIrons, supra note 32, at 126.
  7. See Irons, supra note 32, at 127. Hardwick said he heard a noise as the door moved from a cracked to an open position, but when he looked up there was no one visible, so he thought a breeze blew the door. Id. 50. See Irons, supra note 32, at 127.
  8. See Irons, supra note 32, at 127. Officer Torick said that the fact that the warrant was invalid did not matter, because he was acting under good faith. Id.
  9. SeeIrons, supranote 32, at 128. In the squad car, Torick handcuffed them to the floor, [Vol. 5:553
  10. DRUCILLA CORNELL, THE PHILOSOPHY OF THE LIMrr (1992).
  11. Id. at 1. Cornell relates that she felt compelled to rename deconstruction because negative connotations are attached to it and misinterpretations of its meaning are common. 185. See WEBSTER'S THIRD NEw INTERNATIONAL DICrIoNARY OF THE ENGLISH LANGUAGE UNABRIDGED 101 (Philip Babcock Gove ed., 1993) [hereinafter WEBSTER'S]. An aporia is a prob- lem or difficulty arising from an awareness of opposing or incompatible views on the same theo- retical matter, especially one giving rise to philosophically systematic doubt. An aporia is also a "passage in speech or writing incorporating or presenting a difficulty or doubt." Id. Both defi- nitions apply to Derrida's expressed understanding ofjustice. 186. SeeCORNELL, supra note 183, at 2.
  12. SeeCORNELL, supra note 183, at 2.
  13. See, e.g., Pierson v. Post, 2 Am. Dec. 264 (N.Y. 1805).
  14. Se? e.g., Pierso, 2 Am. Dec. at 264.
  15. See, e.g., Keeble v. Hickeringill, 11 East 574 (Q.B. 1707).
  16. Sew, e.g.,Johnson v. M'Intosh, 21 U.S. 543 (1823).
  17. Id.
  18. This middle-aged student offers a note of gratitude to Professor Steven Lazarus and Dean Frederick White for sharing their knowledge about property, from "adverse possession" to "easements," and from the "Rule Against Perpetuity" to "the Rule in Shelley's Case." Professor Lazarus, thanks much for the history and the conversation. Dean White, thanks much for teaching me to keep on moving in a timely fashion. 198. SeeCROWILEY, supra note 155, at9.
  19. SeeHUFF, Silence, inBLACKLESBIANSDONoTEXiSr, supranote 1, at 13.
  20. SeeCROWLEY, supra note 155, at 7 (quoting BarbaraJohnson, Derrida's translator).
  21. SeeCROivLY, supra note 155, at 7.
  22. SeeROBSON, supranote 170, at 11.
  23. See HUFF, Black Lesbians Do Not Exist, in BLACK LESBIANS Do NOT ExIsr, supra note 1, at 33. 205. SeeLORDE, supra note 168, at 11.
  24. Se Derrida, supra note 212, at 23-24.
  25. SeeDerrida, supra note 212, at 24.
  26. See Derrida, supra note 212, at 24.
  27. See CORNELL, supra note 214, at 114-15 (explaining that the ideal situation is never pos- sible. Moreover, there is great injustice in so subjecting one who does not understand the lan- guage of the law, as it was created by white men in a white man's world.)
  28. SeeLORDE, supra note 168, at 9 (emphasis added).
  29. SeeDerrida, supra note 212, at 26.
  30. SeeDerrida, supra note 212, at 26.
  31. SeeDerrida, supra note 212, at 26.
  32. See Derrida, supra note 212, at 26.
  33. See CORNELL, supra note 183, at 157-58 (explaining that even anti-deconstructionists readily admit that the law can never catch up with its justifications).
  34. But see CORNELL, supra note 183, at 158-59 (contrasting her view with that of legal theo- rists who believe justification for decisions should be based on two precursors. First, "original foundation," which relates to the intentions of the founding fathers. Id. The second is the "idea of full readability," or interpreting laws in the plain meaning of their language. Id.).
  35. See HUFF, Sometimes IKep, in BLACKLESBIANS DO NOT EXIST, supra note 1, at 25.
  36. See CORNELL, supra note 183, at 156 (distinguishing "lawmaking or founding violence" from "law preserving or conserving force").
  37. SeeDerrida, supranote 212, at 12.
  38. &e CORNELL, supra note 183, at 158 (disagreeing with the notion that the legal system should set the limits of relevance). [Vol. 5:553
  39. WEBSTR'S NEV WORLD DIGTIONARY OF AMERICAN ENGUSH 1274 (3rd college ed. 1988). Even definitions promulgated in the 1980s specify only men as engaging sodomy. 254. SRoBSoN, supra note 170, at 47-59.
  40. Nan D. Hunter, LdfeAJferHardwick, 27 HARV. C.R.-C.L. L. REv. 531,533 (1992) (quoting JOHN WINTHROP, THE HISTORY OF NEW ENGLAND FROM 1630 TO 1649: VOLUME II 54 -55
  41. Id. (describing how colonists could not agree on what type of acts would be punishable by death. Furthermore, the colonists lacked any statutory definitions for sodomy, so they had to find a definition from the Bible and English common law.).
  42. BLACK'S LAW DICTIONARY 1391 (6th ed. 1990).
  43. SeeCORNELL, supra note 183, at 159.
  44. &e CORNELL, supra note 183, at 159. See Bower, 478 U.S. at 191 (espousing the major- ity's view that the Court would not recognize a fundamental right to engage in homosexual sod- omy).
  45. S&eCORNELL, supra note 183, at 161.
  46. Se CORNELL, supra note 183, at 161.
  47. See CORNELL, supra note 183, at 161. Significantly, the Supreme Court can and has changed the law and has given new interpretations to the meaning of the Constitution. The Court could have found a fundamental right to engage in homosexual sexual behavior.
  48. See Bowers, 478 U.S. at 191 (stating that the right to engage in homosexual acts of sod- omy is "not readily identifiable in the Constitution's text"). 285. Id. at 194.
  49. SeeCORNELL, supra note 183, at 161. [Vol. 5:553
  50. U.S. CONsT. amend. IX (emphasis added). See CORNELL, supra note 183, at 164 (emphasizing Cornell's view that "[tihe Ninth Amendment can and ... should be interpreted to attempt fidelity to the deconstructibility of even the 'best' constitution, so as to allow for histori- cal change in the name ofJustice").
  51. SeeCORNELL, supra note 183, at 165-67.
  52. See CORNELL, supra note 183, at 164 (stating that "the tautology upon which Justice White's opinion rests -that the law is and therefore isjustified to be, because it is -is exposed as tautology rather than justification").
  53. &_eHUFF, Libation, inBiAcKLESBIANS Do NoTEXIsr, supra note 1, at5. 292. &eHunter, supra note 255, at 531-32.
  54. See LESBIANS, GAY MEN, AND THE LAW, supra note 23, at 87, 92 n.1 (reporting that in 1961, Illinois was the first state to repeal its sodomy law).
  55. &e Hunter, supra note 255, at 532.
  56. SeeLESBIANS, GAYMEN, AND THE LAW, supra note 23, at 92 nn.1, 2.
  57. See LESBIANS, GAYMENAND THE LIAW, supra note 23, at 92 n.l. 297. See LESBIANS, GAYMEN, AND THE LAW, supra note 23, at 92 nn.1, 2.
  58. See LESBIANS, GAYMEN, AND THE LAW, supra note 23, at 92 nn.1, 2.
  59. Oklahoma v. Post, 715 P.2d 1105, 1106-07 (Okla. Crim. App.), cert. denied, 479 U.S. 890 (1986).
  60. See The Regulation of Lesbian and Gay Sexuality, in LESBIANS, GAYMEN, AND THE LAW, su- pra note 23, at 80 (listing the twenty-three states that still maintain sodomy laws).
  61. See The Regulation of Lesbian and Gay Suality, in LESBIANS, GAYMEN, AND THE LAW, supra note 23, at 87.
  62. SeeROBSON, supra note 170, at 48.
  63. SeeROBSON, supranote 170, at48. 313. &eROBSON, supra note 170, at 48.
  64. DAHMER= I, I, I, I really love your culture, it's it's, it's, it's so rich and, and, and, lush and, and, and dark I, I, I, I really lovER your culture -it's
  65. See ROBSON, supra note 170, at 48.
  66. See ROBSON, supra note 170, at 48.
  67. See ROBSON, supra note 170, at 48.
  68. SeeROBSON, supra note 170, at 48.
  69. See ROBSON, supra note 170, at 49.
  70. See supra note 310, and accompanying text.
  71. SeeDerrida, supra note 212, at 18.
  72. Harris v. McRae, 448 U.S. 297 (1980).
  73. The Hyde Amendment prohibits "the use of federal funds to reimburse the cost of abortions under the Medicaid program except under certain circumstances." Id. at 302.
  74. See, e.g., Roe, 410 U.S. at 153 (recognizing a woman's right to terminate her preg- nancy).
  75. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflided." U.S. CONsT. amend. VIII (emphasis added). 349. &eBowers, 478 U.S. at 197-98 (Powell,J., concurring).
  76. SeeThomas, supra note 327, at 1487.
  77. SeeThomas, supra note 327, at 1487.
  78. "The tight of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... P U.S. CONST. amend. IV (emphasis added).
  79. NAMBLA is a "San Francisco-based group that advocates sexual relationships between [Vol. 5:553

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