As a footnote, nine states — Alabama, Florida, Idaho, Louisiana,
Mississippi, North Carolina, South Carolina, Utah, and Virginia — still have
anti-sodomy statutes on the books that ostensibly apply to gays and straights
alike; four others — Texas, Oklahoma, Kansas, and Missouri — prohibit
only gay sodomy. Texas altered its law in 1974 to decriminalize heterosexual
sodomy but keep the criminal penalties for same-sex sodomy.
And so, unlucky to be in Texas, Lawrence and Garner were held overnight in
jail and fined $200 each. The neighbor was later convicted of filing a false
report. After an overturn of the sodomy convictions by one Texas court and
reinstatement of the convictions by another, things have now moved to the U.S.
Supreme Court, where arguments were heard on March 26 on a whole range of matters
relating to sex, equal protection, privacy, and the constitutionality of anti-gay
sodomy laws.
Charles A. Rosenthal Jr., the district attorney from Harris County, Texas,
opened his argument by saying it's okay for the government to go beyond the doors
of the unmarried, if something immoral is going on. Justice Stephen Breyer said
that many felt during World War I that it was immoral to teach German, and that
some states outlawed it. Justice David Souter asked why Texas doesn't ban sodomy
for heterosexuals if it's harmful. Rosenthal, sounding like Monica's mother,
answered that sodomy in the case of heterosexuals could lead to marriage and
procreation.
Justice Ruth Bader Ginsburg asked whether Texas allows same-sex couples to
adopt, and how Texas defines a family. Rosenthal said he didn't know. Ginsburg
asked whether a criminal in Texas could run for office. Rosenthal, saying that
gays have been elected to office in Texas, explained that being gay doesn't make
a person a criminal in Texas, only acting on it does. In other words, to be
legal, a gay politician in Texas must be a perpetual virgin, like those monks in
the Cistercian Order of the Strict Observance who make those 27 flavors of
jelly.
I hesitate to bring all this down to the grubby level of an economist's
cost-benefit analysis, but at least the monks, with zero sex and a few million
jars of elderberry jelly under their belts, have the benefit of thinking that
eternity is going to be a huge step up.
In any case, the real nuts and bolts of the issue came when Paul Smith, an
attorney representing Lawrence and Garner, argued that Texas law means "you can't
have sexual activity at all if you're gay." Justice Antonin Scalia objected:
"They just say you can't have sexual intimacy with a person of the same sex."
They just say, in short, that gays in Texas are perfectly at liberty to have
heterosexual sex.
Scalia, saying that laws against bigamy are bigoted against bigamists, asked
why a state couldn't favor heterosexual sex or marital sex. Breyer asked whether
Texas could outlaw telling egregious lies at the family dinner table. Justice
John Paul Stevens asked if Texas criminalizes adultery or sex between unmarried
straight couples. Justice William Rehnquist reminded everyone about censure and
the law's regulatory instinct: "Almost all laws are based on disapproval of some
people or some conduct. That's why people regulate."
Rosenthal summed up by arguing that the Texas law must stand in order to
protect marriage, something that's especially important, he explained, because
Texas is a community property state. Addressing concerns about equal protection,
Rosenthal closed by asserting that the two homosexuals caught doing homosexual
things in this case might not actually be homosexuals. Said Scalia: "I don't
understand what that means."
Less unsure, Sen. Santorum told the Associated Press exactly what all this
means: "If the Supreme Court says that you have the right to consensual sex
within your home, then you have the right to bigamy, you have the right to
polygamy, you have the right to incest, you have the right to adultery. You have
the right to anything."
In other words, ya got trouble, folks! Right here in River City! Trouble with
a capital T and that rhymes with P and that stands for pool! And what? We knock
down the bedroom doors of Andrew Sullivan and Camille Paglia, of Melissa
Etheridge and Elton John, of Gore Vidal and Martina Navratilova, and hide from
children the books of Henry David Thoreau, Oscar Wilde, Gertrude Stein, James
Baldwin, Truman Capote, and Tennessee Williams, and go out next looking for
adulterers?
The issues here aren't about privacy or sex or equal protection. They are
about individual liberty and the proper scope of government power.
