Sunday, February 7, 2010
This abstract is posted in collaboration with the NYU Review of Law & Social Change symposium, "From Page to Practice: Broadening the Lens for Sexual & Reproductive Rights."
RECLAIMING THE ENTIRE HOME AFTER LAWRENCE V. TEXAS
EREZ ALONI, Penn Law School
In Lawrence v. Texas,19 the United States Supreme Court not only struck down Texas’ sodomy law, but also provided a more expansive ruling, holding that immorality alone cannot serve as a justification to prohibit a certain practice. This case was considered one of the greatest victories in history for the LGBT community. However, some have argued that Lawrence, important as it is, offered only “domesticated liberty” for LGBTs in that its ruling did not extend beyond the private domain and gave no acceptance to the notion of a more substantial kind of sexual liberty that the queer community embraces. 20 Although I find merit in this critique, I believe that even the perceived domestic liberty provided by Lawrence did not truly offer enough of an opportunity for gays to freely practice a gay lifestyle in the home. In fact, it seems that Lawrence only offered gays freedom in the bedroom, but not in the rest of the home. The image of a gay family of any kind, with or without children, living freely and publicly was not part of the vision that Lawrence suggested. The majority opinion emphasized that its decision “does not involve whether the government must give formal recognition to any relationship that homosexual person seeks to enter.” Therefore, while Lawrence did provide for domestic liberty, the domestic liberty was intended to be confined to the bedroom exclusively. In this respect, Lawrence provided sexual rights but not reproductive rights.
It is no wonder that other courts interpreted Lawrence as limited and focused mainly on the arena of the bedroom. In Lofton v. Secretary of the Department of Children and Family Services,21 the plaintiffs challenged Florida’s adoption law which prevents adoption by “practicing homosexuals.” The Eleventh Circuit upheld the law, and interpreted Lawrence as narrowly as possible. The court stated that Lawrence was a limited decision that conferred only the “negative right to engage in private conduct without facing criminal sanctions” but not an “affirmative right to receive official and public recognition.”
To be clear, I do not suggest that every LGBT individual should have a family or that the image of the LGBT family should mimic that of the traditional heterosexual family. I contend that the true meaning of reproductive freedom includes the right to have a family with or without children, or to be single, and to still receive equal rights and benefits from the state and equal respect in society. Rather, I argue that Lawrence and its interpretation, provides an illustration of why sexual rights alone and reproductive rights alone, are not enough. Therefore, a more inclusive understanding of these two concepts would be beneficial both to the sexual rights movement and the reproductive rights movement. Essentially, sexual rights without reproductive rights is not enough; and reproductive rights cannot be realized without sexual rights because often sexual freedom is a prerequisite for reproduction (of course, assisted reproductive technologies now make it possible to reproduce without sex).
Traditionally, the reproductive rights movement has focused on a range of claims concerning whether, when and how to have children. The sexual rights movement, on the other hand, has primarily been concerned with freedom from sexual coercion and violence as well as freedom to lead one’s sexual life with joy, pleasure, dignity and autonomy. The sexual rights movement and the reproductive rights movement have become close allies, in part because both movements share many common values. However, even with many shared values, key differences between the movements have prevented a stronger alliance between the two. The reproductive rights movement was historically inclined to promote the heterosexual, white, middle class family in order to win mainstream societal support.22 Additionally, some reproductive rights organizations stick to a traditional understanding of reproduction as something that relates mainly to women and rarely focuses on reproductive issues relating to gay males and transgenders.
Lawrence creates a conflict for the LGBT community in that it simultaneously provides for and restricts domestic liberty for gays. To truly reclaim their values and rights, gays must reclaim liberty not just in the bedroom but in the entire home. One way to accomplish this is to strengthen the alliance between the gay rights movement and the reproductive rights movement. To create a more inclusive and a stronger alliance between the two movements, the reproductive rights movement should take strides to challenge heteronormativity, and gain a more nuanced understanding of the needs of the LGBT community regarding reproduction. Only a broader understanding of reproductive rights could help the LGBT community reclaim the rest of the home.
19 539 U.S. 558 (2003).
20 Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 Colum. L. Rev . 1399 (2004).
21 358 F.3d 804, 809 (11th Cir.2004).
22 RICKIE SOLINGER, PREGNANCY AND POWER A SHORT HISTORY OF REPRODUCTIVE POLITICS IN AMERICA 5 (2005).