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Twenty years of Law Dork
From June 4, 2003 to today. Lawrence v. Texas was the case that started Law Dork. The case is all the more relevant today.
Twenty years ago today, I hit “publish” on my first two posts at Blogger.
With them, Law Dork was born.
“I have no idea how regularly this blog will be updated or -- to be honest -- what exactly this blog will evolve into, but I wanted to start one,” I wrote that day.
I truly had no idea.
Twenty years later, as another June begins with big Supreme Court decisions on the horizon, I am writing at this, the third iteration of Law Dork, and more than 14,000 of you have subscribed with a free or paid subscription in less than a year.
I couldn’t be more grateful to the people who helped me to make that decision to start the Law Dork blog 20 years ago. You all can thank (or blame!) them, in part, for me being here doing what I’m doing today.
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I was just finishing my first year of law school at Ohio State University’s Moritz College of Law at the time. For my first summer, I was going to be working as a research assistant for three incredible professors: Doug Berman, Ruth Colker, and Marc Spindelman.
For Marc, my first assignment was to review and code all of the briefs in 2003’s Lawrence v. Texas — questioning whether Texas’s “Homosexual Conduct” law was constitutional or not — for any mention of a few items he was going to be writing on.
Doing so changed my life.
I read every word of those briefs, learned the history of the Supreme Court’s 1986 Bowers v. Hardwick opinion upholding the constitutionality of sodomy laws, and saw the ins and outs of every argument to overturn Bowers (and get rid of the anti-gay criminal laws) and to keep it (and allow sodomy laws to continue criminalizing same-sex sexual activity and, in effect, gay lives).
In the course of doing that research, I decided I had something to say about an article someone else had written about the case. When a few national publications declined my offer of an essay from a random 1L in Ohio, a friend in law school suggested I start a blog.
I’d already been following some of the earliest blogs, including Josh Marshall’s Talking Points Memo and Andrew Sullivan’s Daily Dish (deep sigh), so it didn’t sound like a completely ridiculous idea. A few days later, I sat down and published that response.
The piece was a response to Steve Sanders, now a professor at Indiana University Bloomington’s Maurer School of Law, who’d written something that I called “excellent.”
The points I made were marginal, but, I thought my conclusion — referencing 1996’s Romer v. Evans, striking down a Colorado amendment that barred cities from passing nondiscrimination measures “Based on Homosexual, Lesbian, or Bisexual Orientation” — was worth re-upping.
When the decision came down a few weeks later — the first of retired Justice Anthony Kennedy’s trio of June 26 “gay rights” decisions — I was correct that Kennedy and retired Justice Sandra Day O’Connor would end sodomy laws, but not about heightened scrutiny. (The court has still not taken the steps to formally raise sexual orientation or gender identity to any form of constitutional heightened scrutiny, although the decisions suggest that more is at play than simple rational basis analysis.)
The focus on sexual orientation discrimination as a type of sex discrimination, although not formalized in a constitutional opinion at the Supreme Court, has been formalized in other contexts by the court. In Bostock v. Clayton County, Justice Neil Gorsuch’s 2020 opinion for the court held that sexual orientation discrimination and gender identity discrimination were types of sex discrimination and, thus, barred by Title VII of the Civil Rights Act of 1964.
That first post about Lawrence was 20 years ago. Since then, I’ve covered the end of “Don’t Ask, Don’t Tell,” employment protections for LGBTQ people, marriage equality and the end of the Defense of Marriage Act, Supreme Court nominations, and, eventually, much of what happens in our legal world across many publications. I’ve interviewed a president, worked with some of the best journalists in the country, and — on a personal note — gotten sober. It’s been a wild ride, but I was always, to many of you, Law Dork.
Today, as I was writing about Lawrence, discussions back then about sodomy laws and the way they were used as a cudgel against gay people seem extremely relevant yet again.
Several states, including Florida, have now passed laws that criminalize providing gender-affirming medical care to minors. Florida’s law, as I’ve written here, goes further, criminalizing adult gender-affirming medical care if not carried out in accordance with the law’s new restrictions.
Florida also passed a bill that criminalizes using single-sex restrooms in government buildings (and government-owned facilities) different than a person’s sex as established at birth — effectively criminalizing trans people in public spaces if they use the restroom that matches their gender identity.
In her concurring opinion in Lawrence, O’Connorhighlighted the spillover effects that such criminal laws can have:
And the effect of Texas’ sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas’ sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law “legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law,” including in the areas of “employment, family issues, and housing.”
While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.
Doubtless, as these new laws are challenged in court, we will be hearing a lot about both due process and equal protection violations inherent in the laws and actually applied against transgender people and those who would protect their ability to live their lives.
Twenty years later, I’m angry that this is where we’re at — but I am truly grateful that so many of you trust me to provide you with insightful, informed coverage of this moment. And that many of you who encouraged me back then are still doing so today.
To paraphrase that first day 20 years ago, I have no idea what exactly this newsletter will evolve into, but I wanted to do it. And, a little more than 11 months in, I’m so glad that I did.
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O’Connor was writing only for herself, ruling that Texas’s law violated equal protection principles. Kennedy’s opinion for the court relied on due process guarantees to decide the case and invalidate Texas’s sodomy law, but primarily, he wrote, because that was necessary to overturning Bowers, which was decided on due process grounds. Kennedy, on behalf of himself and four other justices, nonetheless referred to the equal protection claim as “a tenable argument” in the opinion for the court.