Rick Perlstein has written a fascinating piece for the Washington Post on the role the new academic discipline of gay studies played in the Supreme Court's recent ruling striking down a Texas law that sought to regulate "homosexual conduct." "Some court watchers have called Lawrence the most momentous civil rights decision since Brown v. Board of Education outlawed school segregation in 1954," Perlstein writes. "What hasn't been explained is the basis for Kennedy's landmark ruling. What has changed since Bowers was decided in 1986? The answer: nothing less than the historical understanding of laws regarding sexual conduct."

Perlstein notes that the Lawrence decision hinged on a debunking of the historical basis for Bowers--that "Proscriptions against [homosexual] conduct have ancient roots," and that therefore efforts to argue that homosexual behavior is Constitutionally protected were "at best, facetious." The basis for such debunking? Three amicus briefs based on the writings of a new generation of academics who specialize in a discipline even liberal sorts might at first regard as a featherweight field with questionable claims to academic legitimacy: gay studies.

"At the outset," Kennedy writes, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter."

That's a stunning repudiation of what White, Burger and the rest of the majority stated so matter-of-factly in Bowers. On what did Kennedy base that statement? On the historical research outlined by George Chauncey of the University of Chicago, and nine other professors in the historians' brief.

Here is what the historians told the justices:

"In colonial America, regulation of non-procreative sexual practices -- regulation that carried harsh penalties but was rarely enforced -- stemmed from Christian religious teachings and reflected the need for procreative sex to increase the population. Colonial sexual regulation included such non-procreative acts as masturbation, and sodomy laws applied equally to male-male, male-female and human-animal sexual activity. 'Sodomy' was not the equivalent of 'homosexual conduct.' . . . The phrase 'homosexual sodomy' would have been literally incomprehensible to the Framers of the Constitution . . . ."

Kennedy's opinion adopts that history, as well as the scholars' assertion that states have only recently sought to criminalize "homosexual conduct." As Kennedy notes, ". . . according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality . . . ."

So much for ancient roots.

The ACLU brief added, "A cramped understanding . . . of our nation's history lies at the heart of the error in Bowers v. Hardwick." Or, as Kennedy put it (politely), "In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated."

But why did states bother to ban certain kinds of sex -- applying equally to everyone, not partners of the same gender -- if they weren't concerned enough to enforce them? Kennedy explains: "A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent. . . ."

As the historians put it in their brief: "Even in periods when enforcement increased, it was rare for people to be prosecuted for consensual sexual relations conducted in private, even when the parties were of the same sex."

Starting in the 1960s, with the passage of new and better laws to prevent sexual abuse and curb sexual predators, states began repealing their sodomy laws as embarrassing anachronisms. Simultaneously, some states passed new laws directed at homosexuality. One of them was Texas, which enacted the 1973 law that came under review in Lawrence. "When homosexual conduct is made criminal by the law of the State," Kennedy wrote, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination in both the public and the private spheres." And thus, he found, the Texas law violates the Fourteenth Amendment guarantee of equal protection under the law. Along with an expansion of the right to privacy, that became the basis for overturning Bowers.

UPDATE: The debate about whether the Lawrence decision was really based on accurate history is on, and, appropriately enough, is being led by Michael Bellesiles' worst fact-checking nightmare, Clayton Cramer (keep scrolling). To read the original amicus brief, go here. Cramer has dug out some errors--or at least some elisions--on the part of the brief's authors. At the same time, he seems to be ignoring--or missing--the main point of the amicus brief, which argues that until the twentieth century, the relevant law focussed on forbidding non-procreative sexual acts rather than on "homosexuality" per se, which did not even conceptually exist until the late nineteenth century. It will be interesting to see how the authors of the brief, and how other historians in the field, respond--if they do at all.