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8 Richmond Journal of Law and the Public Interest 1 (2004)


In an effort to engage in such specification, this paper will first address the mischaracterization of history in Bowers, which portrays the historic legal and ecclesiastical penalties of what the Court labels as "homosexual activities" as a continuous, unitary narrative extending from the halls of the Emperors Theodosius and Justinian to the legislative assembly rooms of Georgia and Texas. This illusory perspective portrays the criminalization of sodomy (and therefore the identity of homosexuality itself) as an impossible cultural continuum. The impossibility of this continuum lies not only in its implicit assumption that states and other lawmaking entities throughout history shared the same cultural, moral, religious, and legal principles, but also in its unqualified adoption of the secular state as the successor to religious authority and the seamless secular synthesizing of penitential prohibitions against sexual sin into secular prohibition against sexual crime. This paper will not only demonstrate that the Bowers conception of history as a continuum is in reality a series of discrete communal units, but will also show that the confines of this continuum emphasize only the horizontal progression of time, quashing significant differences in the authority of the entities who enact the laws and more importantly in the laws themselves. This paper will then elaborate upon other broader difficulties with the Bowers decision - difficulties that are characteristic of many homosexual historiographies. The first of these conundrums, the erroneous assumption that sodomy statutes of past centuries were a former species of anti-homosexual legislation, arises from the historic implications of the Court's conflation of homosexual status with the act of sodomy. The second and third of these topics, the collapse of morality into legality and the subsequent collapse of the legal into the social, also necessarily follow from the Court's collapse of status into act. Each of these three conflated concepts will be addressed in the context of the prior historical discussion of legislation prohibiting same-sex activity from Republican Rome to modern America. The paper will then describe how Bowers' faulty historiography was not merely a series of uninformed generalizations but a conscious strategy dictated by the Court's originalist platform that was developed to uphold the majority's interpretation of Georgia's anti-sodomy statute. Finally, the paper will conclude by explicating what impact the language of Lawrence v. Texas will have on future constructions of homosexuality and its histories.