Friday, July 3, 2015

We are All the Same / Different

Afterwards, of course, it became clear to me what I wanted to say.

In Lawrence v. Texas and other gay rights cases there’s a dual track appeal to liberty and to equality. Liberty celebrates, or least permits, Difference. Equality eliminates or ignores it. We are not Other in the respect to which we are all equal. (We wouldn’t be equal in that respect otherwise.) The safer approach for petitioners has been that gay people and straight people are essentially (!?) the same and so it’s unfair for gay people to be treated differently. This has been the preferred approach because it doesn’t “frighten the horses.” It stays far away from "organs and orifices.”

This mainstreaming was perhaps the appropriate approach in Obefgefell v. Hodges, and earlier in Perry v. Schwarzenegger. But it qualifies the celebration we feel for Lawrence v. Texas. In Bowers v. Hardwick a predominantly Liberty (-tarian) approach had been tried and failed. It is certainly better to have won than to have lost, but I applaud the under-sung hero of Flagrant Conduct, Lane Lewis who said:

The Supreme Court never had the right or authority to take away my right to express love or sex through sodomy … Why are we all down on our knees thanking them for giving us something they should never have taken away?