My remarks at a recent gathering at UCLA Law School recognizing the 40th anniversary of Roe and the 10th anniversary of Lawrence.
Liberty, Equality & Sexual Freedom: A View from 29 Palms
The occasion to reflect on the 40th anniversary of Roe v. Wade and the 10th anniversary of Lawrence v. Texas at UCLA Law School offered an opportunity to squeeze in a little extra time in Southern California before the start of the spring semester, so my partner and I went to Joshua Tree National Park for a few days of hiking. While in Joshua Tree, we had an experience that relates to what I had planned to talk about here. As those who have visited Joshua Tree may know, the park borders the 29 Palms Marine Corps Air Ground Combat Center and Base, a gigantic expanse of the Mojave Desert where the majority of U.S. Marines get their training before being deployed to Iraq or Afghanistan. The base includes a fabricated “Middle Eastern village,” complete with a mosque, and fake “Middle eastern terrorists” with which the Marines can to prepare themselves for combat when they are deployed. When you hike in the desolate mountains of the park you hear the Marines dropping bombs all day long – it’s pretty surreal.
But the experience that relates to our gathering today and tomorrow happened at dinner one night. We went to a restaurant in 29 Palms, the town adjacent to the Marine Base, with some trepidation – figuring we might be the only non-military people there, and as two lesbians we had our radar up. We walked into the restaurant, and were both struck by how much it looked like a restaurant in Chelsea back in New York: it was full of fit, clean-cut male couples dining, and, like we might find in Chelsea, the bar was full of single men drinking. This was not a gay scene in the traditional sense, but rather the reality of life near a military base: a highly homosocial environment. The demographics of the 29 Palms night life is not surprising, since there are 6 men for every woman on the base, indeed the Marine Corps has the lowest percentage of women on active duty of all the branches of the military, at around 7%. The Airforce has three times as many women and the Army twice as many. So being near a Marine base means you’re not going to find that many women.
Given this, we were pretty surprised when half way through our meal two women drove up to the restaurant in a huge pick up truck and were seated across the room from us – they were clearly, or at least clearly to us, a couple, and were not in the military as both of them had long hair and looked pretty scruffy: flannel shirts, keys clipped to their belts, knit caps pulled down over their brows – pretty recognizable fashion statement in some sectors of the lesbian community. What happened next I just didn’t see coming, and it’s what relates to my thoughts on our gathering today: when the waitress came over to these two dykes’ table to take their order, the butch – and there was no doubting which one that was – told the waitress in a gravely, emphatic, and loud voice: my wife will have the chicken and I’ll take the steak.
No one batted an eye – except my partner and me, we were stunned. Not very many years ago it would have been foolish for two dykes to flaunt their dykiness right next to a military base in a room full of male Marines. So I watched this situation and was both amazed and horrified. Amazed at how things have changed for lesbian and gay people in the 10 short years since Lawrence was decided. These two dykes in 29 Palms are safe walking into a restaurant full of male Marines, and let everyone there know that they were married! But I was horrified that these women’s homosexuality was announced through the vernacular of a marital relationship where the lesbian husband did the deciding and the talking for the lesbian wife.
So here’s why I was so struck by this experience: it echoed some of the thinking we’ve been doing at Columbia together with the Center for Reproductive Rights looking at the state of gay rights and reproductive rights when held up next to one another. How is it that the needle has moved so quickly in a rights expanding direction when it comes to gay rights, while moving in the opposite direction for reproductive rights – particularly the right to an abortion? Are there lessons the abortion-rights movement can learn from the progress in the gay rights area? But almost of more importance, are there arguments, strategies, or tactics that have been pursued in the campaign to solidify gay rights – particularly marriage rights – that have reinforced, if not amplified, the precarity of abortion rights?
If there are, I think they can be traced to the transformation in many, but not all quarters of the gay rights movement from a movement for sexual liberty to a movement for family-based equality. Lawrence and the more recent marriage equality victories may signal the withering of a kind of hatred of gay people, but the homophobia that underwrote Bowers has enjoyed an afterlife, an afterlife that continues to haunt the domain of reproductive and abortion rights.
Starting with Justice Kennedy’s fictionalized description in Lawrence of the intimate relationship between John Lawrence and Tyron Garner, we have witnessed a new emplotment of gay life, one animated by characters who are kin not hook ups, and whose connection is described primarily as romantic or domestic rather than sexual. The homosexual portrayed in the media and in much litigation today is the soccer mom, the partner who is a good provider, the loving father, the sick partner who is left alone in a hospital room, the de-facto daughter-in-law, and the good gay who attends stamp-collecting conventions. The legitimate homosexual is he or she who is willing to keep quiet about the sex part of homosexual. In this sense, the spaced cleared out by the vanquishing of sodomy law’s homophobia is a space for the desexualized gay subject who longs for the stability and fidelity of the enduring personal bonds Justice Kennedy relied upon so heavily in Lawrence.
In the marriage cases, the decent, loving, faithful gay character is met by adamant arguments from the other side insisting that marriage is essentially a procreative enterprise, and that since only a man and a woman can procreate, marriage can only be made up of husbands and wives. In response to this hetero-sexualization of marriage, the same-sex couples insist that “we too have children, just not the way you do.” It makes sense for the plaintiffs in these cases to insist that there are ways to make babies that aren’t essentially heterosexual, but the consequence of this argument is that homo-sex, non-reproductive sex, loses any political, legal or social significance. To the extent that Bowers was all about sex, Lawrence and it’s aftermath have vanquished sex from the discussion almost entirely. Marriage, it seems, is where homo-sex goes to die. While the path of the argument may not have been one we initiated, quite often our politics and legal strategies reinforce the erasure of homo-sex and other forms of sex that are the excess over reproduction. Of course contraception and abortion have a stake in this politics as well. The way we won Lawrence has made it difficult for the lesbian and gay rights movement to carry a brief for sex, sex for its own sake, and as part of a politics of freedom.
Yet, the space evacuated by Lawrence’s repeal of sodomy laws need not be taken up immediately or entirely by the domain of kinship and the family – but there is a great risk that it would be. This space could be one in which a kind of sexual legibility might emerge that is not private, does not entail property relations, is not matrimonial, does not take the couple form, and is not necessarily enduring. It would not privilege values such as dignity, respectability, and even equality. The terms of its zoning might be beyond marriage, kinship, or the family. It is these spaces that are most threatened by homophobia’s afterlife, and it is these spaces where the precarity of abortion rights resides.
The two women in 29 Palms I described earlier feel safe announcing to a room of Marines that they are married. But imagine another scenario: should either of them have an unwanted pregnancy she’d have a really difficult time finding someone to provide it in that community. Even worse, if either of them were actually in the Marines, their taxpayer-funded health insurance plan would not cover an abortion. Of course, there was some good news on this score in the National Defense Authorization Act that President Obama signed a couple weeks ago, insofar as the military will now cover the costs of an abortion for enlisted women in the case of rape or incest. Given the frequency of sexual assault, including rape, committed against women in the military – particularly against women perceived to be lesbian – and the utter failure of the chain of command to take this problem seriously, this change in the law is the minimally decent policy change we’ve seen on this issue.
What shocked me about the two women in 29 Palms was not how it was safe to be lesbians in that town, but how safe it was to act like a yucky straight couple. In a sense their interaction with the waitress had more to do with hetero-normative gender roles than it did with homo-sexuality. And in that sense they weren’t really rocking the boat, instead they were just jumping on board. This integration of same sex couples into the institutional structure of the marital couple, leaves the cause of sexual liberty as a different struggle altogether. As an unfortunate consequence we’ve seen how certain forms of non-normative sex have been rendered all the more vulnerable to social and legal stigma. Here we find the afterlife of homophobia. Homophobia’s pernicious work has shifted from buttressing the criminalization of sodomy, and from justifying the ongoing exclusion of same-sex couples from legal marriage, to imposing a kind of penalty on those people, regardless of their sexual orientation, who cannot or will not organize their desires in a way that sets up marriage as the solution to their exclusion from sexual citizenship. Suffering this penalty are those of us who think kinship in complex ways, indeed those who favor sex for its own sake over the privileges of kinship and family altogether. Also included are those who don’t want to be punished for having sex by being forced to bear and raise a child they do not want, as Reva Siegel has so persuasively framed the abortion right in her Reasoning from the Body article.
Roe’s troubled legacy has found little aid or comfort from the relative successes for lesbian and gay rights that have flowed in aftermath of Lawrence. The stigma that is associated with homosexuality has diminished to such a degree that Jody Foster (sort of) coming out before a TV audience of millions seemed so, well, quaint. Yet, by contrast, it is almost unimaginable for a celebrity of her stature to publicly acknowledge having an abortion. While the increasing social acceptance of homosexuality we are witnessing is not necessarily causing the enhanced social and legal stigma associated with abortion, yet some of the work we do to enlarge a domain of equality for gay and lesbian people has in some cases indirectly sanctioned a contraction of a domain of sexual liberty for others. I remain convinced that these two domains have stakes in one another and look forward to the day when the blessings of Lawrence’s legacy are felt more directly by those whose interests are tied to the enduring viability of Roe.
 Isidor and Seville Sulzbacher Professor of Law and Director, Center for Gender & Sexuality Law, Columbia Law School. © 2013 by Katherine Franke. All rights reserved.
 Roe v. Wade, 410 U.S. 113 (1973).
 Lawrence v. Texas, 539 U.S. 558 (2003).
 Women In Military Service For America Memorial Foundation, Inc, Statistics on Women in the Military, available at: www.womensmemorial.org/PDFs/StatsonWIM.pdf
 See Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas (2012).
 See, for example, the complaints in Lazaro v. Orr, available at: http://www.aclu.org/files/assets/complaint_-_final_with_electronic_sig.pdf, or Perry v. Schwarzenegger, available at: http://www.lambdalegal.org/in-court/legal-docs/perry_ca_20090522_complaint-us-district-court.
 Lawrence v. Texas, 539 U.S. 558, 567 (2003) (“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”).
 House Report 104-664 (July 9, 1996) at http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrpt664.pdf at 13 (quoting Marriage in America: A Report to the Nation 10 (Council on Families in America 1995) reprinted in PROMISES TO KEEP: DECLINE AND RENEWAL OF MARRIAGE IN AMERICA 303 (David Popenoe, et al., eds, 1996)); Bill Maguire, A Rational Basis for Marriage between One Man and One Woman, The Catholic World Report, November 28, 2012, available at: http://www.catholicworldreport.com/Item/1772/a_rational_basis_for_marriage_between_one_man_and_one_woman.aspx#_ftnref1.
 See Darby v. Orr, Compliant for Declaratory and Injunctive Relief, May 30, 2012, available at: http://www.lambdalegal.org/in-court/legal-docs/darby_il_20120530_complaint-declaratory-injunctive-relief; Golinski v. U.S. Office of Personnel Management, Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ and Bipartisan Legal Advisory Group’s Motions to Dismiss, available here: http://www.lambdalegal.org/sites/default/files/legal-docs/downloads/golinski_us_20110624_plaintiffs-memo-of-points-and-authorities.pdf.
 Bowers v. Hardwick, 478 U.S. 186 (1986).
 H.R.1540 — National Defense Authorization Act for Fiscal Year 2012,
 Department of Defense Annual Report on Sexual Assault in the Military, April 2011 available at: http://www.sapr.mil/media/pdf/reports/Department_of_Defense_Fiscal_Year_2011_Annual_Report_on_Sexual_Assault_in_the_Military.pdf
 I don’t mean this comment to be confused with a condemnation of butch-femme relationships or roles, which have a long and transgressive history in the lesbian community. See e.g. Audre Lourde Zami: A New Spelling of My Name (1982); Leslie Feinberg, Stone Butch Blues (1982); Butch-Femme Reader (Sally Munt ed. 1998); The Persistent Desire: A Femme-Butch Reader (Joan Nestle ed. 1992). What generated my critical attention in this context was the linking of heteronormative roles to marriage in the way these women presented themselves to the dining public at the restaurant. Others have made the argument that this kind of pairing, lesbians as spouses, is itself enormously transgressive and holds enormous potential to unsettle gender roles in marriage. See e.g. Nan D. Hunter, Introduction: The Future Impact of Same-Sex Marriage: More Questions Than Answers, 100 Geo. L.J. 1855 (2012). While I’m dubious that Hunter and others who hold her view are right on this point, I think that the new era of same-sex civil marriages ought to provoke a hard conversation within the lesbian and gay community about power within our relationships and how those power dynamics relate to larger societal gender norms and forms of inequality.
 See Nancy Polikoff’s recent work on what she calls the “new illegitimacy.” Nancy D. Polikoff, The New “Illegitimacy”: Winning Backward in the Protection of the Children of Lesbian Couples, 20 Am. U. J. Gender Soc. Pol’y & L. 721 (2012).
 Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 280 (1992).