Gay Identity in Bowers, Romer & Lawrence

Western Washington University Western CEDAR WWU Graduate School Collection WWU Graduate and Undergraduate Scholarship 2014 Judging Sodom: gay identity in Bowers, Romer & Lawrence Logan Steele Western Washington University Follow this and additional works at: https://cedar.wwu.edu/wwuet Part of the Political Science Commons Recommended Citation Steele, Logan, "Judging Sodom: gay identity in Bowers, Romer & Lawrence" (2014). WWU Graduate School Collection. 389. https://cedar.wwu.edu/wwuet/389 This Masters Thesis is brought to you for free and open access by the WWU Graduate and Undergraduate Scholarship at Western CEDAR. It has been accepted for inclusion in WWU Graduate School Collection by an authorized administrator of Western CEDAR. For more information, please contact [email protected]. Judging Sodom: Gay Identity in Bowers, Romer & Lawrence By Logan Steele Accepted in Partial Completion Of the Requirements for the Degree Master of Arts Kathleen Kitto, Dean of the Graduate School ADVISORY COMMITTEE Chair, Dr. Shirin Deylami Dr. Paul Chen Dr. Debra Salazar MASTER’S THESIS In presenting this thesis in partial fulfillment of the requirements for a master’s degree at Western Washington University, I grant to Western Washington University the non- exclusive royalty-free right to archive, reproduce, distribute, and display the thesis in any and all forms, including electronic format, via any digital library mechanisms maintained by WWU. I represent and warrant this is my original work, and does not infringe or violate any rights of others. I warrant that I have obtained written permissions from the owner of any third party copyrighted material included in these files. I acknowledge that I retain ownership rights to the copyright of this work, including but not limited to the right to use all or part of this work in future works, such as articles or books. Library users are granted permission for individual, research and non-commercial reproduction of this work for educational purposes only. Any further digital posting of this document requires specific permission from the author. Any copying or publication of this thesis for commercial purposes, or for financial gain, is not allowed without my written permission. Logan Steele November 25, 2014 Judging Sodom: Gay Identity in Bowers, Romer & Lawrence A Thesis Presented to The Faculty of Western Washington University In Partial Fulfillment Of the Requirements for the Degree Master of Arts By Logan Steele November 2014 ABSTRACT This paper presents a novel method for understanding how the Supreme Court constructs identities. Applying Michel Foucault’s concept of governmentality to pivotal Supreme Court decisions which solidified gay identity were analyzed using Bowers v. Hardwick, Romer v. Evans, and Lawrence v. Texas. The results of this investigation show that the Court’s construction of gay identity changed with each case, sculpted by what they perceived at the time as most productive for American society. The work presented here has profound implications for the future study of the Supreme Court and contributes to our understanding of the workings of institutions in the modern world. iv ACKNOWLEDGEMENTS This project would not have been possible without the support of many people. I’d like to acknowledge the contribution of my advisor and thesis chair, Dr. Shirin Deylami, who read my numerous revisions and helped bring order to my chaos. I’d also like to recognize my committee members, Dr. Paul Chen and Dr. Debra Salazar, who offered guidance and support through this process. I’d like to show appreciation to Harley Stone, David Brookbank, and Meghan Steele whose editing skills helped make this thesis far more readable. v TABLE OF CONTENTS Abstract.....................................................................................................................................iv Acknowledgements....................................................................................................................v Introduction................................................................................................................................1 Literature Review.......................................................................................................................4 Methodology............................................................................................................................17 Analytics of Government.............................................................................................17 Discourse Analysis.......................................................................................................20 Explaining Governmentality More Broadly................................................................26 Bowers v. Hardwick – Gays and Lesbians as Criminal Others................................................33 The History of Bowers.................................................................................................33 A Discussion of the Logic of Governmentality in the Bowers Decision.....................36 Productive Identity Construction in Bowers................................................................53 Romer v. Evans – Gays and Lesbians as Just Like Everyone Else..........................................60 The History of Romer..................................................................................................60 A Discussion of the Logic of Governmentality in the Romer Decision......................63 Productive Identity Construction in Romer.................................................................73 Lawrence v. Texas – Gays and Lesbians as Just Like Straights..............................................75 The History of Lawrence.............................................................................................76 A Discussion of the Logic of Governmentality in the Lawrence Decision.................78 Productive Identity Construction in Lawrence............................................................84 Conclusion...............................................................................................................................88 Bibliography……………………………………………...………………..…….……..……92 vi Judging Sodom: Gay Identity in Bowers, Romer & Lawrence Introduction This paper is about the Supreme Court’s decisions in three landmark gay rights cases. It tracks the Court’s thinking as it changed from criminalization of gay intimate sexual relations, in 1986, to reversing this decision in 2003. This paper is an analytics of government, an analysis of the conditions that create specific institutions and ways of doing things, how they emerge, exist, and change.1 This type of study seeks to explain the emergence of a particular set of practices, for example, the Supreme Court’s analysis of gay and lesbian sexual identity, examine the sources of the elements that constitute the practice, and follow how these practices have developed into stable ways of doing things.2 An analytics of government examines how these practices become institutions, how they create and rely upon particular forms of knowledge and how the institution reforms itself and this knowledge, over time.3 It looks to the ways in which the Supreme Court has been instrumental in defining the ways in which the state has perceived, created perceptions, and managed the sexual practices of Americans. In this thesis, I will argue that Supreme Court decision-making in gay rights cases was based on how it perceived the productivity of gay identity in each case. I argue that in each instance: Bowers v. Hardwick (1986), Romer v. Evans (1996), and Lawrence v. Texas (2003), the Supreme Court, driven by the logic of governmentality, came to form an identity for gay people based on what was most useful and 1 Mitchell Dean, Governmentality: Power and Rule in Modern Society, 2nd Edition (London: SAGE Publications, 2010), 30-31. 2 Ibid, 31. 3 Ibid. productive for society. For this paper, the explicit construction of sexual identities means what the Court has laid out within the text of its decisions. Implicit construction involves what the Court has neglected to mention: the many assumptions about gays and straights that are taken for granted. This is an important field of study because of the immense power of the Supreme Court. Specifically, the Court has the authority to interpret the Constitution and define what laws mean. As law professor James Boyd White puts it: The criticism of opinions, on all these grounds-rational, political, and moral-is an essential part of the activity of law. It is crucial to the legal practice, for it is on the basis of such criticism that one will argue for or against the authority of a particular opinion or line of opinions. The opinion is not merely an epiphenomenon to the law…but is central to the activities of mind and character of the law as we know and value it.4 Its decisions have also had an enormous impact on American culture by deciding such things as who can marry whom, who is entitled to citizenship, and how different groups are allowed to interact with each other in public. It has played an extensive role in defining group identity for subcultures and how those groups are perceived in American society. For example, cases such as Plessy v. Ferguson and Brown v. Board of Education have helped shape the identity of African-Americans. In Brown v. Board of Education, Chief Justice Earl Warren described the position of African-Americans in the South under segregation; he found

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