Citation is: 115 Yale L.J. 756 (2006). Does not appear to be available for free downloading anywhere, unfortunately. Here’s the abstract:
“In Lawrence v. Texas, the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence, however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illicit sex, the genus of licit sex, and marriage. Viewed from this perspective, Lawrence marks the latest intervention in a legal conversation that began when Congress enacted the 1907 Immigration Act and the 1910 Mann Act, each of which prohibited the movement of women across borders:the former, international, the latter, interstate:for”immoral purposes.”In the early twentieth century, through these provisions, lawmakers and judges constructed an isomorphic relationship between marriage/nonmarriage and licit sex/illicit sex. The”marriage cure”transported sex across the illicit/licit divide. But courts and legislators came to view these curative powers as a threat to marriage’s place in the sociolegal order because individuals used marriage as a tool to evade legal penalties. Thus, they checked the powers of the marriage cure and, in so doing, uncoupled both parts of their original isomorphism. Lawrence represents the culmination of this process: the movement of a sexual relationship across the illicit/licit divide at least in part because it made no claim to marriage. This move reflects the persistent status of marriage as simultaneously powerful in its ability to confer legal privileges and to shield people from the dangers of sexual illicitness, and powerless to protect itself from the taint of those same illicit practices.”
