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«The Ohio State University Knowledge Bank kb.osu.edu Ohio State Law Journal (Moritz College of Law) Ohio State Law Journal: Volume 65, Issue 5 (2004) ...»

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The Ohio State University

Knowledge Bank kb.osu.edu

Ohio State Law Journal (Moritz College of Law) Ohio State Law Journal: Volume 65, Issue 5 (2004)

Out of Bounds

Seidman, Louis Michael

Ohio State Law Journal, vol. 65, no. 5 (2004), 1329-1339.

http://hdl.handle.net/1811/70988

Downloaded from the Knowledge Bank, The Ohio State University's institutional repository

Out of Bounds

LouIs MICHAEL SEIDMAN*

Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerancewish to include only those ideas andgroups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument,* yet, any plausible version of constitutionallaw must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent of moral argument, for bounding constitutional rights. This difficulty can best be addressed by modifying our ambitionsfor constitutional law. Instead of a method for requiringagreement, constitutionallaw might be reconceptualized as a method for destabilizing all boundaries, thereby reconcilinggroups with widely different moral views to the political order.

It is not possible to think seriously about Lawrence v. Texasi without contemplating boundaries.

Boundaries separate: right from wrong; male from female; free from coerced;

gay from straight; public from private; top from bottom; the United States from Mexico; crazy from sane; politics from law; me from you.

Boundaries are the way that we impose order on our perceptions of the universe. Without them, the world would be unintelligible. 2 Part of the project of every preschool is to teach children what is out of bounds. Parents struggle to establish boundaries for their teenagers, and those of us who pretend to have grown up struggle every day with our own boundaries.

Yet boundaries are also artificial and constricting.3 (That is, after all, why maintaining them involves struggle.) The policing of boundaries is always and *Professor of Law, Georgetown University Law Center. This paper is based upon an oral presentation. I have retained its informal character. For reasons that are made clear below, I am especially grateful to Pamela Karlan for her openness and generosity in commenting on this article. I am also grateful to Brian Shaughnessy for outstanding research assistance and editorial suggestions.

I Lawrence v. Texas, 539 U.S. 558 (2003).

2 For example, apparently people who have been blind for years and suddenly regain their sight have not learned (or have forgotten) how to see boundaries. Many of these individuals can "see" in a certain sense, but lack the ability to form coherent patterns out of visual stimuli. See OLIVER SACKS, AN ANTHROPOLOGIST ON MARS: SEVEN PARADOXICAL TALES 108-52 (1995).

3 Even boundaries that we take entirely for granted restrict possibilities that we never perceive. See, e.g., Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1170 (1985) (arguing that "[k]nowledge does not flow from a free subject perceiving independently existing objects; it is constructed in the relationships between things, in the metaphors we create," and that "'[t]ruth' accordingly depends on the exclusion of other ways of dividing up the world, other metaphors for the way the world is experienced").

1330 OHIOSTATE LA WJOURNAL [Vol. 65: 1329 inevitably authoritarian, even when we are our own dictators. Boundaries limit freedom, imagination, and empathy. They blind us to the pain and desperation (and possibilities) that lie just across the border.

Despite the century-long assault on constitutional formalism, constitutional law remains all about boundaries. The great constitutional struggles of our history have concerned the boundaries between legislative and executive power, between the public and the private, or between the national and the local. 4 Even at its most inclusive, constitutional law always takes care to impose boundaries on its inclusiveness. This is the dark side of even the most enlightened version of liberal constitutional law. Including more groups in our moral community presupposes that there is a moral community within which these groups can be included, for moral communities lose their meaning unless there is something outside them.

The people remaining outside-the hidden victims of liberal constitutionalismare stigmatized all the more because of its inclusionary pretensions.

Concrete examples help illustrate the point.5 When the Supreme Court first extended a modicum of protection to gay men and lesbians in 1996, Justice Kennedy quoted from the first Justice Harlan's famous dissent in Plessy v.

Ferguson to assert that this nation "neither knows nor tolerates classes among [its] citizens." 7 Justice Kennedy neglected to mention a much less famous section of the dissent where Harlan stated, without evident disapproval, that "[t]here is a race so different from our own that we do not permit those belonging to it to become citizens of the United States," 8 and complained that those he called Chinamen were allowed to ride in passenger coaches while black citizens were not.9 Several generations later, in Griswold v. Connecticut, when the Supreme Court first extended protection to people engaged in nonprocreative sex, Justice Harlan's grandson felt compelled to write a concurring opinion making clear that this new protection had nothing to do with the rights of homosexuals. I I And 4 See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (legislative and executive); Roe v. Wade, 410 U.S. 113 (1973) (public and private); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (national and local).





5 The paragraph that follows is drawn from Louis Michael Seidman, Romer's Radicalism, 1996 Sup. CT. REV. 67, 114-15.

Plessy v. Ferguson, 163 U.S. 537 (1896).

7 Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy, 163 U.S. at 559).

8 Plessy, 163 U.S. at 561.

91d.

10 Griswold v. Connecticut, 381 U.S. 479 (1965).

11 Justice Harlan wrote the following:

"[T]he family... is not beyond regulation,"... and it would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the home can be made a sanctuary for crime. The right of privacy... is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal

OUT OFBOUNDS

2004] when Justice Kennedy wrote for the Court in Romer v. Evans 12 to recognize the rights of gay men and lesbians to inclusion within the political community, he took pains to say that, of course, this had nothing to do with those engaged in polygamy.

The optimistic take on these decisions is that they mark gradual, halting, but nonetheless inexorable progress toward full inclusion. The real story is more complicated. On the one hand, liberal constitutionalists do not really aspire to achieve full inclusion because, on some level, they understand that boundaries are necessary to moral and constitutional argument.1 4 To include everyone is to include no one in anything that matters. On the other hand, liberal constitutionalism's rejection of "othemess" and acceptance of analogical reasoning renders all borders problematic.

In the wake of Lawrence, the contradictions of this bounded inclusiveness surfaced yet again. Consider, for example, a debate between Michael Carvin and Pamela Karlan that aired on The NewsHour the day that Lawrence was decided.15 Carvin is a former deputy assistant attorney general in the Reagan Department of Justice who opposed the decision; Karlan is a professor at Stanford University Law School who favored it. Unsurprisingly, Carvin's strategy was to efface boundaries and, in doing so, to push Karlan into an endorsement of a boundless moral community that had lost its meaning.1 6 Following Justice Scalia's dissent in Lawrence,17 he argued that to take Lawrence seriously is to admit that adult enquiry, however privately practiced.... But not to discriminate between what is involved in this case [contraception] and either the traditional offenses against good morals or crimes which, though they may be committed anywhere, happen to have been committed or concealed in the home, would entirely misconceive the argument that is being made.

This quotation first appeared in its entirety in Poe v. Ullman, 367 U.S. 497, 552-53 (1961) (Harlan, J., dissenting). Justice Harlan incorporated by reference his Poe dissent into his concurring opinion in Griswold.See Griswold,381 U.S. at 500 (Harlan, J., concurring).

12 Romer v. Evans, 517 U.S. 620 (1996).

13 Id at 634.

See, e.g., Chai R. Feldblum, A Progressive Moral Case for Same-Sex Marriage, 7 TEMP. POL. & Civ. RTs. L. REV. 485 (1998).

15Expanding Privacy (PBS television broadcast, June 26, 2003) (transcript at [hereinafter Expanding http://www.pbs.org/newshour/bb/law/jan-june03/privacy_6-26.html) Privacy].

16 Id.

17 Justice Scalia wrote the following:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fomication, bestiality, and obscenity are... sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting).

1332 OHIO STATE LA WJOURNAL [Vol. 65: 1329 incest, prostitution, and bigamy are also constitutionally protected.] 8 Realizing that liberal constitutionalism is vulnerable to this kind of challenge, Professor Karlan rushed to reenforce the boundaries that Carvin's argument threatened. 19 [T]here's a principled distinction between laws that target one class of people for engaging in behavior that everyone else in the state is allowed to engage in and laws that prohibit things like prostitution or incest.

Prostitution is not just two consenting adults in a room. It implicates all sorts of other issues ranging from crime to the quality of neighborhoods to the subjugation of women. And those are not an issue when you're talking about consenting adults alone in their own home engaged in non-commercial intimate association with the people they're close to. That's just very different. And it surprises me when people put homosexuality on the same side of the line as incest or prostitution, rather than recognizing that it's intimate association between two people in the same way that other couples of opposite sexes engage in intimate association.

Perhaps I should make clear at this point that Pamela Karlan is my good friend and coauthor. I am not ashamed to say that, in many ways, I think of her as a hero and a role model. Still, the arguments she made on this occasion are troubling. It will not do, for example, to insist that gay sex is different from incest because gay sex is "intimate association between two people in the same way that other couples of opposite sexes engage in intimate association."'2 1 Yes, gays and straights engage in sex "in the same way" in some respects, but in other quite obvious respects, the sex they engage in is different. The question, of course, is whether we should emphasize the sameness or the difference. All of the work in Karlan's argument is done by the undefended choice to emphasize the sameness of gay and straight sex and the difference between incestuous and nonincestuous sex. She provides no reason why one should not paraphrase her own argument to claim that adult incest is "intimate association between two people in the same Justice Scalia's parade of horribles suggests a sharper boundary than I would have imagined between his world-view and that of most of the people I know. Does he really believe, as his dire rhetoric suggests, that social unraveling would quickly befall us if laws against masturbation were declared unconstitutional?

18 Carvin insisted that the "logic of the [Court's] principle" meant that laws involving bigamy and incest were unconstitutional, although he "doubt[ed] seriously [that the Justices would] follow that logic because they are politicians." ExpandingPrivacy, supra note 15.

19 ExpandingPrivacy, supra note 15.

20 Expanding Privacy,supra note 15.

21 Expanding Privacy,supra note 15.

2004] 1333

OUTOF BOUNDS

way that other couples [who are not related] engage in intimate association. '22 Nor is it obvious why laws against sodomy, but not laws against prostitution and incest, "target one class of people for engaging in behavior that everyone else in the state is allowed to engage in....."2 3 Both sets of laws "target" the class of people who engage in prohibited behavior, but not the class of people who engage in permitted behavior. True, there is a sense in which gay people constitute a coherent social class, while people in incestuous relationships do not. Gay men, lesbians, and bisexuals self-identify as a group that is defined by more than just their sexual behavior. As Karlan has argued elsewhere, laws that outlaw gay sex are influenced by the desire to stigmatize gay people.24 In contrast, incest and prostitution are behaviors that are "not tied as an empirical matter in '25 contemporary America to membership in a recognized social group."

This is an important point that ties Lawrence to the general theme of antisubordination in American constitutional law. It cannot be a complete answer, however. Suppose that people in incestuous relationships were able to organize themselves (or were organized by oppression) into a social group. 26 Surely, this change alone would not cause Karlan to change her views about their constitutional rights. Some groups are subordinated because they deserve to be subordinated. Even if (especially if!) rapists and pederasts managed to form their own political action committees, the laws against their conduct would remain perfectly legitimate.



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