Article by Larry Cata Backer
This Article explores the way in which recurring fact patterns drive jurisprudence, especially the jurisprudence of sexual-conduct regulation. It explores the ways in which state high courts have fused the hundreds of reported cases involving constitutional challenges to sodomy laws in the U.S., and the ways in which English courts did the same in the cases involving the interpretation of the Sexual Offenses Act, into a unified vision of what it means to be a gay man. The Article further examines the way in which these courts applied their visions to resist challenges to a severe regulation of (homo)sexual conduct. In considering the relevance of narrative and image to law, the Article suggests that lawmaking (jurisprudence) is driven by the creation of meta-narratives about the objects of the courts' attention (gay men). The Article then begins the examination of the meta-narrative itself, and the effectiveness of this narrative in driving sodomy jurisprudence in the United States and Britain. It concludes with an examination of the four ‘stock‘ characters that emerge as sodomy's meta-narrative: the predator (studies in the coercive sexual nonconformity of rape and physical power), the pied piper (studies in pedophilia, seduction, and the recruitment of youth), the Whore of Babylon (the embodiment of promiscuity, addiction, and contagion), and the defiler of the public space (the imperialism of public expressions of sexual nonconformity). Finally, the Article situates constitutional cases like Bowers v. Hardwick and R. v. Brown within this tradition of narrative antipathy. Bowers provides an excellent case study of the way in which the narrative antipathy of sodomy jurisprudence blinds courts to even the ‘best‘ set of facts, and Brown demonstrates the power of narrative to confirm the deviance of gay men and refuse them the solicitude of the law to private sexual conduct.
About the Author
Larry Cata Backer. Associate Professor of Law, University of Tulsa; B.A. 1977, Brandeis University; M.P.P. 1979, J.F. Kennedy School of Government, Harvard University; J.D. 1982, Columbia University.
Citation
71 Tul. L. Rev. 529 (1996)