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Albany Law Review




In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription of "the straight mind," the social construct grounded in and perpetuating the heterosexual paradigm. Although deconstruction informs the argument, the Wallace Stevens poem A High-Toned Old Christian Woman is used as an extended metaphor for the analysis of judicial reasoning in selected state and federal sodomy cases.

In this poem, addressed to "A High-Toned Old Christian Woman," Stevens describes two possible worlds: a "nave" (i.e., the central part of a cathedral) derived from "the moral law," and a "peristyle" (i.e., columns surrounding a temple or court) derived from "the op­ posing law," Although the moral law satisfies the "conscience," the opposing law "indulge(s)" it. So, although "we agree in principle" with the consequences of the moral law, Stevens preferred the "bawdiness" of the opposing law and "imagined a world where sexuality was to be indulged and displayed like the sounds of the words themselves."

A High-Toned Old Christian Woman serves as a metaphor for judicial reasoning in sodomy cases. As argued in this Article, Bowers v. Hardwick represents the "haunted heaven" built from the "moral law" concerning homosexuality and sodomy. In this frequently-cited decision, the Supreme Court upheld Georgia's sodomy law. Bowers contrasts with state decisions that have stricken sodomy laws, such as Commonwealth v. Wasson, State v. Morales, Campbell v. Sundquist, and Gryczan v. State. These cases "take ... [t]he opposing law and make a peristyle" rejecting Bowers v. Hardwick.

Wallace Stevens, who was a lawyer in addition to being a poet, was undoubtedly well-acquainted with the phenomenon of legal reasoning in which the analysis of a specific set of facts could result in widely disparate conclusions. Just as Stevens attempted to rout out "the flaccid underside of any dogmatic position," this Article joins numerous others which criticize Bowers' flaccid foundation. Specifically, it illustrates how Bowers produces the straight mind and examines whether other cases successfully subvert that production. Also asked is what happens when we consider the ethical implications of these sodomy decisions. Can the law incorporate an ethics of care for the other, or must it continue to oppress the other?

To lay the foundation for answering these questions, Part I defines the straight mind and traces its historical development relying primarily on the work of Michel Foucault, Part II briefly de­ fines deconstruction and considers features of a deconstructive reading. This deconstructive approach provides a practical and pragmatic technique to interrogate judicial reasoning and to change injustice. Part III critiques Bowers by showing how the decision in­ corporates or reinscribes the straight mind, Part IV presents several state decisions that rejected Bowers' reasoning and argues that even though these state decisions reject Bowers and come to an opposite conclusion, they are not always completely successful in rejecting the straight mind. Although examining how the law produces the straight mind constitutes an ethical endeavor, Part V focuses on three problems that more obviously concern ethical is­ sues: (i) the failure to acknowledge violence encouraged by the straight mind; (ii) the failure to enforce sodomy statutes; and (iii) the failure to inculcate an ethics of inclusion or care for the other.

Sodomy cases apply universal laws, i.e., civil liberties that try to protect individual rights in a pluralistic society. In applying these universal laws, however, the cases fail to reconciliate self and other, and thus illustrate a cardinal binary interrogated by deconstruction: the subject/object or subject/other. As will be argued below, the appearance of reconciliation usually indicates that the writing is a "product of ideological distortion, suppression of difference or subordination of the other."

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Albany Law School

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