David A. J. Richards's wonderful little book, The Sodomy Cases: Bowers v. Hardwick and Lawrence v. Texas, is about much more than these two cases. Richards writes, “This book is a historical study of Lawrence … which must include not only Bowers … but the entire development and elaboration of the constitutional right to privacy in U.S. law”(p. 1). At the same time, the book is a history of prejudice against gay people and of the movement for LGBT rights, and a view into the future of privacy, liberty, and equality in the Unites States—and not just for gay people.

The opening chapter, “Breaking the Silence,” provides an intellectual roadmap for what is to follow, beginning with a bold statement of the argument of the book: “[The] decision on behalf of gay and lesbian rights in Lawrence … [is] a landmark case in U.S. constitutional law for the gay rights movement in the same way Brown v. Board of Education and Reynolds v. Sims were for the civil rights movement” (p. 4).

In fact, young readers who grew up in the post-Lawrence era (the University of Kansas's Landmark Cases and American Society series is designed, in part, for student use) are likely to be shocked by the history of the abuse of gay people that is recounted by Richards. Many readers no doubt will be unaware of how gay men were burned alive in Rome or of how William Blackstone grounded his justification of capital punishment for sodomy not only in “the voice of nature and reason” but “the express law of God,” a punishment by “our ancient law … by condemning such miscreants to be burnt to death” (p. 6). For the modern reader, this places Justice Burger's approving citation of Blackstone in his concurring opinion in Bowers into its appropriate homophobic context.

While much of the book focuses on the development and meaning of privacy, one of Richards's most interesting insights is that the struggle for gay rights also is a struggle for First Amendment rights. There are two strands to this argument. One grows out of Blackstone's infamous description of homosexuality as a“crime not fit to be named … the very mention of which is a disgrace to human nature” (p. 6). Inevitably, questions of gay and lesbian rights involve questions of speech and questions of being silenced. Richards lucidly outlines the history of the cultural silencing of homosexuality and of those who argued that such silencing is unjust. If the very mention of sodomy is a disgrace to human nature, writing about the rights of gay people or describing the lives of gay people can be criminalized as obscene, thus silencing a political movement. Richards's comparison is to the use of these statutes to silence Margaret Sanger and to prevent discussion of contraception. Free speech rights become intertwined with privacy rights if one is to argue for sexual equality.

But there is a second strand to the argument: sexual identity is a matter of conscience. Richards argues that prejudice against gay/lesbian rights should be viewed as constitutionally forbidden because it forces or encourages people not to express their conscientious convictions. Such prejudice, he argues, is analogous to religious prejudice, and it follows that sexual identity, like religious freedom, ought to be constitutionally protected. This then leads to a discussion of how social structures encouraging people to conceal their identities serve to reinforce inequality.

Much of the following chapters are devoted to a learned discussion of the development and meaning of the right to privacy and the right to intimate association. By prefacing the discussion of the sodomy cases with a discussion of privacy rights as developed in the contraception and abortion cases, Richards makes it clear that the underlying sexism manifest in the unequal treatment of women often serves as the basis for homophobia, and that the constitutional rights articulated in these other cases function as the underpinning of the rights articulated in Lawrence.

Not content to limit his argument to sexism, Richards reminds us of how the U.S. history of slavery included the barbaric destruction of familial relationships and argues that “because … slavery and racism abridged, among other rights, the basic human right to intimate life, … it makes … sense to regard the right to intimate life as one of the unenumerated rights protected both by the Ninth Amendment and the Due Process and Privileges and Immunities clauses of the Fourteenth Amendment” (p. 41).

Bowers is the topic of three chapters, drawing on the rich historical record of court documents and internal memoranda as well as on interviews with clerks, litigators, and other key participants. Much of this narrative is eminently readable. Richards's closely argued legal theory probably places the book beyond most students in introductory courses but should be accessible to students who have some prior work in American politics and in political theory.

Perhaps the most newsworthy material here centers on Justice Powell's swing vote in Bowers. We see the Machiavellian memos written by his clerk, Michael Mosman, a Mormon, and the inability of Cabell Chinnis, Powell's gay clerk, to come out to Powell. We read Justice Burger's last-minute memorandum designed to switch Powell's vote to upholding the Georgia sodomy statute, including “Are we to excuse every ‘Jack the Ripper’?” (p. 91) We even learn that Justice Powell, who famously told his colleagues that he had never met a homosexual, actually met the famous lesbian couple Gertrude Stein and Alice B. Toklas while he was serving in France during World War II. Apparently, Powell used the term “homosexuals” only to apply to gay men—whom he viewed as the subject of Bowers.

The chapters on Lawrence are enriched by analysis of the many amicus briefs, particularly the scholarly briefs of historians and by a group of European scholars, lawyers, and public figures. These briefs effectively demolished the many historical errors about sodomy that infected the majority and concurring opinions in Bowers and provided a global perspective on recognizing the rights of gay people. Sadly, internal memoranda for Lawrence are not yet available.

The chapter on the consequences of Lawrence is particularly strong. While one might take Scalia's dissenting fulminations as being at best facetious, Richards takes them seriously. Scalia's argument that “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are … sustainable only in light of Bowers” (p. 157) becomes the object of thoughtful consideration for Richards, concluding that laws against adult incest, bestiality, bigamy, and polygamy should stand while adultery might best be considered a tort rather than a criminal matter and that laws against masturbation, obscenity, and commercial sex probably cannot withstand serious consideration. Same-sex marriage, according to Richards, is a matter of simple justice. As he writes, “Intimate life is … a basic human right because a loving sexual relationship is, like conscience and speech, at the core of what makes us human” (p. 179).

Richards is not a political scientist, and he does not address many of the debates that might be of interest to the profession. He is interested almost exclusively in the law, and broader political dynamics are not central to his account. He does not consider the possibility, for example, that the idea that justice for gay people will come from Supreme Court decisions is but a hollow hope. His book's great strengths are in its historical narrative, its depiction of the internal maneuverings of the Supreme Court, and its rigorous legal theorizing.