Marriage and the Genus of Illicit Sex

In an article appearing in the newest issue of the Yale Law Journal, Ariela Dubler portrays Lawrence as the culmination of a key historical development.  Here is the conclusion:

In Lawrence v. Texas the Supreme Court situates its opinion within a particular historical narrative: the history of the enactment and repudiation of laws banning sodomy. Lawrence, however, is part of another body of legal history as well. It is part of the history of attempts by federal lawmakers and judges to define the respective genera of licit and illicit sex. Viewed from this perspective, Lawrence marks the latest intervention in a legal conversation that began when Congress enacted the 1907 Immigration Act and the 1910 Mann Act, each of which prohibited the movement of women across borders for “immoral purposes.” Situating the case in this context makes sense of the role played by marriage in all three of the major opinions in Lawrence—a case in which no party made any legal claim to marriage, but Justices Kennedy, O’Connor, and Scalia all understood marriage to be implicated. The Lawrence Court, like the legislators and judges who crafted and interpreted the “immoral purpose” provisions, uses marriage to police the line between illicit and licit sex.

One hundred years ago, however, lawmakers and judges constructed an isomorphic relationship between marriage/nonmarriage and licit sex/illicit sex. The “marriage cure” transported sex across the illicit-licit divide. Lawrence marks the final repudiation of this logic: The Court moved a sexual relationship from the genus of illicit sex into the genus of licit sex noting precisely that the relationship made no claim to marriage. As was the case historically, this judicial move reflects the persistent status of marriage in the American sociolegal order as a legal institution understood to be simultaneously tremendously powerful and powerless. Marriage is at once powerful to confer legal privileges and to shield people from the dangers of sexual illicitness, and powerless to protect itself from the taint of those very practices.

Rob