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Sexual Injustice: Supreme Court Decisions from Griswold to Roe

Sexual Injustice: Supreme Court Decisions from Griswold to Roe, published by the University of North Carolina Press in 2010, critically examines the development of a doctrine of “heteronormative supremacy” in U.S. law in the period from 1965 to 1973. It offers in-depth analyses of six important cases: Griswold (1965), which struck down state restrictions on birth control for married people; Fanny Hill (1966), which overturned an anti-obscenity decision because the materials in question were not "utterly without redeeming social value"; Loving (1967), which ruled against state bans on interracial marriage; Boutilier, which upheld a federal law that provided for the exclusion and deportation of aliens with psychopathic personalities, a law which was understood to apply to homosexuals; Eisenstadt, which struck down state restrictions on birth control for the unmarried; and Roe, which overturned restrictive anti-abortion laws. Challenging the notion that the U.S. Supreme Court recognized expansive rights of sexual freedom and equality in this period, the book argues that the justices endorsed special rights and privileges for heteronormative sexual expression, the belief that heterosexuality was the normal and preferred form of sexual desire.

The first part of the book examines the development of the Supreme Court's doctrine. The first chapter examines the heteronormative aspects of the "liberalizing" decisions, while the second focuses on the sexually conservative ruling in Boutilier. In both cases, the book shows that the heteronormative doctrine reproduced and reinforced class, gender, racial, and sexual hierarchies in the United States. In these decisions, the Court emphasized marital and reproductive rights, which the justices thought were protected by the Constitution, but it distinguished these rights from sexual rights, which the justices did not recognize.

The book's second part focuses on the activists and advocates who were responsible for bringing these cases to and through the courts. One chapter examines the movements and lawyers who worked on the abortion, birth control, interracial marriage, and obscenity cases. Their arguments supported the development of the Court's heteronormative doctrine. Another chapter looks at the three sets of activists and advocates who supported the litigation in Boutilier: radical immigration attorneys, homophile movement activists, and civil libertarians. The final chapter in this part of the book looks critically at the arguments offered by Boutilier's advocates, showing that they, too, supported the doctrine of heteronormative supremacy.

The book's third part addresses "readers and readings" of the Court's decisions on sex, marriage, and reproduction in this period. One chapter shows that various journalists, judges, and scholars interpreted the Court's "liberalizing" rulings as more sexually libertarian and egalitarian than the justices thought they were. While the Court emphasized marital and reproductive rights, many commentators presented the Court's decisions as recognizing sexual rights. Another chapter addresses Boutilier, showing that the decision was soon forgotten, in part because it did not readily conform to popular narratives of the Supreme Court's sexual liberalism. The chapter also addresses the complicated and tragic story of what happened to Clive Michael Boutilier, who was deported from the United States in 1968.

A concluding chapter discusses the post-Roe era, reviewing key Supreme Court decisions on abortion, birth control, obscenity, homosexuality, and other sexual matters in the last several decades. While many commentators suggest that the Supreme Court's rulings after Roe were inconsistent with the Court's sexual liberalism in the late 1960s and early 1970s, this chapter argues that the Court continued to work within the doctrine of heteronormative supremacy from 1973 to 2003. In that year's Lawrence decision, which struck down state sodomy laws as unconstitutional, the Court rejected, without acknowledging that it was doing so, the heteronormative logic that had guided the Court since the mid-1960s. The conclusion emphasizes, however, that Lawrence is based on new types of heteronormative arguments.  Recent Supreme Court decisions suggest that struggles for sexual freedom and equality will be ongoing.