Legal doctrine, social change and the path of civil rights progress

Abigail Perkiss

Scholars and commentators have long debated the proper role of the nation’s highest court in addressing social problems in America.  But these questions reach far beyond the confines of the Ivory Tower and the halls of Washington, D.C.’s Marble Palace.

The decisions made by the U.S. Supreme Court serve at once as principle and potential.  The task of the nine justices that make up the bench is to synthesize context and precedent, to craft legal canon on which law- and policymakers can rely going forward.

But these rulings also open the door for grassroots activism.  At times, they become calls to action, giving ways to widespread agitation for legal, political, and social change.

When John Geddes Lawrence passed away on November 20, 2011, legal scholar Ari Ezra Waldman wrote, “[Lawrence’s] name will be a part of every constitutional law class, every gay rights class, and every future case in which liberty and privacy are at stake… Mr. Lawrence allowed us to argue that we have the liberty to love whom we choose, the liberty to marry whom we choose, and the right to be left alone about it.  Every successful piece of gay rights litigation cites Lawrence v. Texas and every success we have is thanks to our advocates’ skillful interpretation and use of that case.”

Nine years ago this month, on June 26, 2003, the U.S. Supreme Court handed down its decision in Lawrence v. Texas.  The case, which challenged a state law making it illegal to “engag[e] in deviate sexual intercourse with another individual of the same sex,” arose when, in September 1998, John Lawrence and Tyron Garner were arrested and charged with engaging in consensual sexual acts in Lawrence’s apartment on the outskirts of Houston.

Though the two men were innocent – it was later revealed that when the police broke down the door to Lawrence’s home on suspicion of weapons violations, the defendants were fully clothed and in separate bedrooms – civil rights attorneys convinced the pair to abandon their claims of innocence and to issue a “no contest” plea to the charges.

Thus began five years of legal battles, as gay rights advocates across the nation joined a long legacy of activists, seeking to use the court system to challenge inequality.  Though the two men were only casual acquaintances, reportedly never involved in a romantic or sexual relationship, they became the figureheads in the fight for sexual privacy.

And ultimately, the U.S. Supreme Court supported that right.

Writing for a 6-3 majority, Justice Anthony Kennedy held that, “the petitioners are entitled to respect in their private lives.  The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

In Lawrence, as in Brown v. Board and Roe v. Wade before, a group of legal advocates saw in the defendants the opportunity to challenge exclusionary state laws on a national level.  These milestone cases emerged because activists sought to confront longstanding legal and social constraints on equality and autonomy.

In this way, the final ruling of the High Court was just that, the fulfillment of efforts from below to reshape the legal status of minority groups.

But it was also a beginning.

Brown v. Board galvanized hundreds of thousands of Americans to join the fight for racial integration and equality.  And just as quickly, it sparked outrage in the nation’s segregationists, who launched their own campaign of massive resistance.

Roe, too, inspired grassroots activism on both the left and the right.  The historic decision spurred a national fight over morality, religion, privacy, and bodily autonomy.  As legal scholar Alex McBride has argued, the holding “divided the nation more than any other recent case and continues to inspire heated debates, politics, and even violence today.”

And Lawrence v. Texas has spearheaded both agitation for and resistance against gay rights at a national level.

Though the legal reach of the decision was relatively modest – only 13 states had sodomy laws on the books in 2003 and they were rarely enforced – the victory served as a launch pad for both gay rights advocates and social conservatives alike.

The case has formed the foundation for arguments over same-sex marriage and adoption, for challenges to the military’s Don’t Ask, Don’t Tell policy, and for questions of broader issues of equality, sexual autonomy, and privacy.

As Time Magazine’s Nancy Gibbs (et al) wrote less than two weeks after the 2003 decision was passed down, “In cases like this the symbolism, over time, can shape the substance, and so there were people on both sides eager to rally their supporters by declaring the ruling a watershed.”

As Brown, Roe, and Lawrence teach us, though the Supreme Court might be an arbiter of legal doctrine in America, its rulings have the potential to spawn long-lasting grassroots change.

Abigail Perkiss is an assistant professor of history at Kean University in Union, N.J., and a fellow at the Kean University Center for History, Politics and Policy.