This year marks the 40th Anniversary of Roe v. Wade (decided on January 22, 1973) and the 10th anniversary of Lawrence v. Texas (decided on June 26, 2003). The progressive legal field has been abuzz with various events commemorating and reflecting on these milestones. Lawrence struck down sodomy laws in Texas and thirteen other states. After John Lawrence and Tyron Garner were arrested for consensual sex in the privacy of Lawrence’s home, they pled guilty to violating Texas’s sodomy law (see Dale Carpenter’s book, Flagrant Conduct, for an excellent discussion of the case, including the possibility that Lawrence and Garner were never engaged in sex at all). Lambda Legal brought the case all the way to the Supreme Court, resulting in a ruling that sodomy laws violated both liberty and equality interests of same-sex couples.
I’ve been thinking a lot about how we describe the liberty interests involved in Lawrence. The liberty interests can be described in terms of privacy or autonomy. Individuals have a right to privacy in their intimate relationships vs. individuals have a right to autonomy that includes their intimate relationships. My sense is that over the past decade, there’s been an increasing emphasis on the autonomy prong of this liberty interest. Activists increasingly celebrate Lawrence for its recognition of autonomy. This matters because expecting the state to respect the autonomy and self-definition of people is a much bigger statement than merely expecting the state to respect privacy in the home. As I progress with my dissertation research, I’m going to pay attention to how activists describe Lawrence, so I might write more about this in the future.
For now I’m interested in another question. Is this shift from privacy to autonomy reflected in public opinion? Is the public even aware of this distinction? Because of the prominence of Lawrence and Roe in our field, it is sometimes easy to overplay their prominence for the broader public. When I told my grandparents about the Williams Institute Conference I attended last month, they did not know what the Lawrence decision was. I was surprised. They follow national news and politics, and my grandpa always has a position on any issue. And despite its cultural prominence, a recent poll suggests that most people under 30 don’t know what Roe v. Wade was about!
This got me thinking about the role of the media in our collective memory of Supreme Court decisions. How does the media shape whether and how we remember decisions? Can the media change how we symbolize a decision over time? While I would like to think that the increasing emphasis on autonomy themes of Lawrence is reflected in a broader public discourse, is that even possible if it is not picked up by the media?
To begin thinking about this question, I ran some quick searches in ProQuest’s National Newspapers Premier database. Over the last 12 months, 571 stories include “Roe v. Wade”. Over that same time period, only 39 articles include “Lawrence v. Texas”! I expected more stories for Roe, but this magnitude of difference was shocking. The anniversary of Roe just passed on January 22, while the anniversary of Lawrence is four months away, on June 26. Maybe that explains part of the discrepancy? So I ran another search for “Roe v. Wade” from 9/23/2011 to 9/22/2012 (end date is four months before Roe‘s anniversary). This search turned up 408 stories, still 10 times more than my Lawrence search!
Even this quick search makes it abundantly clear that Lawrence is not remembered in the media in anywhere near the same way as Roe. By not mentioning Lawrence, the media lets us forget it. Why does this matter? For one thing, it matters to our collective memory of LGBT history. It’s a lot easier to argue against protections for LGBT people, such as the Employment Non-Discrimination Act, when you can erase the history of discrimination against them. Sodomy laws were a potent symbol of state discrimination. My advisor told me that her teenage son was surprised to learn that sodomy was illegal in some states in his lifetime. If we forget Lawrence, then it’s easy to forget how recent that was the case.
But media discussion of Lawrence would do much more than just build collective memory of a particular form of state discrimination. It would also provide a frame for discussing other LGBT concerns. In particular, the absence of news articles discussing Lawrence might be especially surprising given that Lawrence is one of the key precedents involved in the same-sex marriage cases at the Supreme Court right now.
Here, a comparison to Roe is again illustrative. A search for “abortion” over the past 12 months turned up 6,871 news stories. 491 of those stories also include “Roe v. Wade,” about 7% of the stories. In this way, Roe provides a ready frame for discussing privacy in relation to abortion. Roe might not be always explicitly mentioned, but it is difficult to discuss abortion politics without at least thinking about its framework. A similar search for “same-sex marriage” over the past 12 months turned up 4,165 news stories. Only 18 of those stories, less than .5%, also mention “Lawrence v. Texas.” Clearly, discussions of abortion are automatically connected to Roe in a way that discussions of same-sex marriage and other LGBT issues are not automatically connected to Lawrence.
What would happen if 7% of stories on same-sex marriage (or other LGBT politics) mentioned Lawrence? What would happen if Lawrence played a similar framing role in media discourse as Roe? Broader prominence for Lawrence could give the public an easier way to think about how same-sex marriage, the Employment Non-Discrimination Act, non-discriminatory access to restrooms, and other issues impact the privacy and autonomy concerns of LGBT people. While Roe may be vilified by a large segment of the population, it at least provides a cultural hook to discuss privacy and choice in relation to abortion. Lawrence is not even vilified by a population that can’t identify how it stands for privacy and autonomy. This forces us to think more about the role of media in framing the relevance of courts to broader political debates.