Copyright © 1993 Virginia Law Review Association.
Virginia Law Review
REASONING ABOUT HOMOSEXUALITY: A COMMENTARY ON JANET HALLEY'S "REASONING ABOUT SODOMY: ACT AND IDENTITY IN AND AFTER BOWERS V. HARDWICK"
79 Va. L. Rev. 1781
Anne B. Goldstein *
IN her article in this volume, Janet Halley shows in considerable detail how, in Bowers v. Hardwick, 1 Justice R. Byron White's mischaracterization of the Georgia statute as prohibiting "homosexual sodomy" 2 exploited sodomy's "instability ... along the parallel registers of act and identity." 3 By itself, this is a remarkable achievement. Yet Halley pursues an even more ambitious goal: to demonstrate that sodomy's volatile incoherence is "crucial to the ordering of sexual-orientation identities, particularly to the subordination of homosexuality and the superordination of heterosexual identity." 4 This goal the article does not quite achieve.
Because Halley's article uses the Hardwick decision as a "laboratory" for exploring the links between homosexual act and homosexual identity, 5 its analysis treats particularities of the Hardwick case as typical, even necessary, features of any regime that renders heterosexuals and heterosexuality immune and invisible while subordinating and condemning homosexuals and homosexuality. Hardwick was charged with doing a prohibited act. While Halley shows that the Court's justification for validating that prohibition mingled act with identity, there are other ways to subordinate "homosexuals" than by enacting general prohibitions on noncoital sexual acts and then enforcing them selectively against same-sex conduct.
This Commentary explores Halley's thesis. It traces the development in the criminal law of the volatility Halley attributes to "homosexual sodomy" and then examines several newer regimes that impose and immunize heterosexuality while condemning homosexuality. These regimes are constructed quite differently and thus raise the question whether volatile ...
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