Sexual Orientation and the Paradox of Heightened Scrutiny

In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay. The obvious point of departure for an analysis of Lawrence is its decriminalization of much sexual conduct. Justice Scalia began this project with his dire warning that “[s]tate laws against bigamy, samesex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . sustainable only in light of Bowers’ validation of laws based on moral choices.” Justice Scalia correctly predicts that laws against fornication are now a dead letter; there are no laws against masturbation, so his worries there are unnecessary. But the judicial processes for evaluating laws prohibiting other sexual conduct will constitute one major segment of the overall process that will construct the next chapter of sexuality law. Sodomy law operated as both a mechanism of subordination and a metaphor of heterosexual superiority. Decriminalization is not deregulation, however. Nor is it a marker of full equality. Rather, it is one stage in a regulatory process, one likely to produce even more “institutional incitement to speak about [sex], and to do so more and more; a determination on the part of the agencies of power to hear it spoken about, and to cause it to speak through explicit articulation and endlessly accumulated detail.” State involvement with sexuality has not ended, and Lawrence poses an implicit question: How will the discursive policing of homosexuality change in the wake of this decision?