The seeds of successful constitutional challenges are often planted decades before the actual cases in question are brought. There are few U.S. legal scholars who are better at tracing the nurture and growth of those seeds than David Richards. In his new book, Richards provides a comprehensive and engaging sociological, political, and legal history of the U.S. Supreme Court's sodomy cases.

Richards weaves many different strands into his rich and multilayered account, including the arguments for the legal recognition of women's basic human right to intimate life raised by Margaret Sanger and other early feminists, the history of free speech advocacy in favor of restricting the reach of obscenity law, and, most important of all, the way in which the gay rights movement, starting in the 1970s, was able to tap into the growing judicial skepticism of political and legal manifestations of irrational stereotypes, whether they be based on racism, sexism, anti-Semitism, or homophobia.

The book, however, does not limit itself to tracing the historical origins of contemporary gay rights claims. Indeed, Richards is able to deftly transition between the sociological, political, and legal changes that made the sodomy challenges possible to the specifics of the two sodomy lawsuits considered by the Supreme Court. In doing so, Richards pays as much attention to the unsuccessful challenge (Bowers v. Hardwick [1986]) as he does to the successful one (Lawrence v. Texas [2003]). For each lawsuit, Richards provides a fascinating portrayal of the parties, the lawyers, and the justices, while also paying close attention to the doctrinal arguments raised and analyzed during the course of the litigation.

The discussion of Hardwick includes revealing memos and notes written by Justice Lewis Powell as he struggled to cast his deciding vote in the case. Also included in Richards's account is a crucial letter from Chief Justice Warren Burger to Powell in which the former implored the latter to join him in upholding Georgia's sodomy statute. In that letter, Burger made the extraordinary claim that a case involving the arrest of a man for engaging in consensual gay sex in his home “presents for me the most far-reaching issues of [my] 30 years” on the bench (91). In the end, a clearly conflicted and somewhat exasperated Justice Powell provided the crucial fifth vote that pleased Burger, but placed the Supreme Court on the wrong side of history.

The overruling of Hardwick by Lawrence may seem, in hindsight, like a foregone conclusion. The notion that the government can criminalize sexual intimacy between consenting adults based solely on considerations of majoritarian morality became, by the early twenty-first century, constitutionally untenable. In fact, future generations are likely to view Hardwick with the same incredulity with which we today view cases like Plessy v. Ferguson (1896) and Bradwell v. Illinois (1872).

It is precisely the (now) apparent obviousness of the constitutional claims raised in the sodomy cases that makes a book such as Richards's so important. Whether we like it or not, most of our society for most of the twentieth century rejected out of hand the claims to equality and autonomy made by lesbians and gay men. Indeed, the Hardwick Court itself dismissed the notion that gay people had a constitutional right to choose their sexual partners as being “at best, facetious.”

There was clearly a fundamental shift in the Court's thinking when it concluded seventeen years later in Lawrence that the intimate lives of lesbians and gay men are entitled to constitutional respect. As Richards makes clear in his book, the reasons for that shift are not to be found solely in events that took place during those intervening years. Instead, the shift can be traced back to the struggles and achievements of earlier social movements, including the civil rights and women's movements, that sought recognition of basic human rights in the areas of speech, conscience, and intimacy. It was these movements that laid the moral and legal foundations for the Court's eventual acknowledgment that lesbians and gay men share a basic human dignity with others that demands constitutional respect for their sexual relationships.