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Thursday, December 05, 2002

The Supreme Court has agreed to hear a Texas case, giving it an opportunity to revisit the infamous 1986 Bowers v. Hardwick decision, in which the Court decided 5-4 to uphold statutes criminalizing “sodomy” as constitutional. The Texas court system has thusfar upheld the constitutionality of the state’s anti-sodomy statute.

Now, those of you who know me can fairly easily predict which side I’m on here. So I’ll do my best to periodically entertain you along the way.

The facts of the case are somewhat interesting. Apparently, a neighbor who allegedly has some grudge against gays called the police in Houston about “a crazy armed man” running around the neighbors’ house. The police found no such man, but they did find John Lawrence and Tyron Garner engaged in anal sex. The neighbor, Roger Nance, was later charged with making a false complaint to police. The couple, instead of simply paying a fine, chose to litigate the issue.

OK, so what’s the big deal, you may ask? It’s not like these laws are enforced much in Texas or anywhere else in the U.S. You don’t really see people going to jail for sodomy, and when you do, it’s generally people who committed sodomy with children, with prostitutes, in the act of raping or otherwise sexually assaulting someone else, or in public places where good ol’ fashioned penis-vagina intercourse would be illegal as well. (And no one’s claiming that any of the above should be decriminalized, although I suppose there are people speaking up for public sex.)

I don’t think it matters how often the law in question is “enforced.” Obviously, law enforcement is going to have better things to do most of the time than inspect our bedrooms (or wherever else in our houses or other private spaces) for violations of sodomy laws. As this article shows, where these laws are still on the books, they are used as tools by anti-gay groups to achieve discriminatory ends that may bear little or no relation to the enforcement of the laws in and of themselves.

The very existence of these laws can also be used to place a presumption of criminality on gays and lesbians, a presumption that places them at a disadvantage in a variety of non-criminal areas of law, most importantly in domestic relations, marriage and divorce, and child custody cases. The same presumption has popped up in immigration law as well, albeit to a lesser degree.

And in any case, leaving a law on the books with the assumption that it won’t be enforced is not a good idea. It simply undermines respect for the law if there are obscure laws lying around – some of them carrying surprisingly harsh punishments – that are being violated on a daily basis by large numbers of people. More seriously, it’s an open invitation to arbitrary enforcement and abuses of discretion by police and prosecutors, not to mention a trap for unwary citizens. In the right sort of case, such laws are ripe for giving rise to blackmail, or, as in the instant case, an incentive on the part of spiteful neighbors to make frivolous complaints to police. And for what purpose?

In Texas, and some other states, violation of these laws exposes people to “moral turpitude” citations, leaving them open to professional discipline (including disbarment proceedings if they are lawyers) in many cases. In four states people convicted of sodomy would be required to register as “sex offenders,” same as a rapist or child molester. According to this article, in Texas, a sodomy conviction could limit, among other things, one’s right to be an interior decorator. (Yes, read that sentence again. In theory, Texas does not allow gay men to be interior decorators.)

From a personal standpoint, I looked for any evidence that an attorney in Virginia, the jurisdiction in which I am barred, could be subject to professional discipline for violating its sodomy laws based on its supposed “moral turpitude.” In Virginia, sodomy, quite broadly defined to include oral and anal sex between two persons of either sex, is a felony. The Virginia State Bar Code of Professional Responsibility does mention adultery as a possible basis for a finding of “moral turpitude,” but is silent on the sodomy issue. I didn’t come across anything that suggested one could be disbarred for sodomy specifically, but it’s not a comforting thought to say the least.

In all fairness to the Virginia State Bar, this year they have asked the Supreme Court to approve changes to their Code of Professional Conduct that would “add a qualification to the prohibition against dishonesty, fraud, deceit, or misrepresentation so that the prohibition would only apply to such conduct that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law.” (cite here) Which would seem to be a rule change aimed at eliminating the chances of Virginia’s ridiculous, draconian “crimes against nature” laws being the impetus for bar discipline.)

Now of course, it’s the political branches of government who write our laws. Obviously, it would be better if legislators could agree that these laws served no real purpose and got rid of them. All else being equal, you don’t really want to see a lot of what many call “judicial activism” for a variety of reasons.

But what sort of change would a court that threw out these laws truly be effecting? In a sense, law enforcement has already made a decision about how useful these laws are. Not very, or else there’d be more resources spent on enforcing them and publicizing their existence. And there’s been no effort to enforce them, other than in the relatively narrow context of public spaces. (And, surely, laws specifically covering public sexual activities are far better and more narrowly tailored for regulating such conduct.)

Most state sodomy laws target both oral and anal sex, although colloquially the word “sodomy” is generally associated with anal sex. I can’t think of many people my age, of either gender and of any orientation, that have never engaged in an act of oral sex. I would also imagine that many of them, whether or not they are gay men, have tried anal intercourse at least once.

A cursory examination of Virginia’s laws governing sexual conduct definitely gives the lie to the popular tourist slogan “Virginia is for lovers.” Virginia is only for lovers who are heterosexual, married, and boring. Otherwise, they might get up to five years in prison. (No, that’s not a typo. Five years in prison.) They even make Texas look reasonable by comparison.

Perhaps recognizing the inherent silliness of making criminals out of, well, damn near everyone, Texas and three other states (Kansas, Missouri, and Oklahoma) only punish same-sex acts of sodomy.

Now, gay men and lesbians are not, either in the federal system or in any of the above states or indeed most other states, protected legal classes. However, is there any permissible rationale for limiting the right to perform oral sex on a man to women? Or vice versa?

Facial neutrality does necessarily mean that a statute is non-discriminatory. That a statute imposes a burden that is “equal” on two different classes does not necessarily mean it passes the muster of Fourteenth Amendment’s Equal Protection Clause. Laws prohibiting interracial marriage on their face burdened both whites and non-whites equally, and were still struck down in Loving v. Virginia(1967). Poll taxes and voter literacy tests are two other historical examples.

There is Supreme Court jurisprudence that suggests that laws designed with an animus towards gays, even though they are not specifically a protected class, might run afoul of the Fourteenth Amendment’s Equal Protection Clause. Yes, plenty of same-sex sexual activity happens that involves people who do not identify themselves, externally or internally, as homo- or bi-sexual. But laws that target only same-sex activity place a burden specifically on actions based entirely on the gender of the actors.

Laws burdening this sexual conduct among all persons are arguably fairer, but even more absurd in their effect or potential effect.

Now, you may indeed find majority support in many states for keeping such laws on the books, whether its legislators or citizens you’re talking about. If you say they have the right to write their prejudices into law on this issue, what’s to stop a majority from writing other prejudices into law? What would stop a majority from reinstituting school segregation? Or outlawing women from working certain jobs? If it were left only to majority rule, Jim Crow laws would probably still be on the books.

In order for a government of any level to have the right to restrict the liberty of people to go about their business, it must have a rational basis for doing so. Usually, proponents of such laws cite public health, public morals, or simply the right of a majority to rule. The last reason is not a valid reason for legislation, or else a Christian majority could demand a ban on construction of synagogues or mosques in a state. Is there any evidence that sodomy laws, especially when no state wants to bother with enforcing them, do anything to promote public health or public morals? This is supposed to be a limited government, and conservatives in particular are fond of pointing out that legislatures can’t just pass any old thing they feel like.

Are these laws just, as Jerry Falwell has suggested, a mere “symbol” of some moral code? I wish they were. If it’s a symbol Rev. Falwell wants, how about Congress or the Virginia General Assembly pass a law declaring some chosen week or month of the year “Say No To Sodomy Week/Month” and be done with it? Or pass a resolution reprimanding of the people of the Commonwealth of Virginia (or the United States as a whole) for engaging in or tolerating the deviant practice of sodomy with each other? Merely “symbolic” pieces of legislation shouldn’t carry long prison terms with them.
(Go here and skip down to the part where Barney Frank slices and dices Falwell to pieces. Thaks to Atrios for the link.)

I respect this take on the possible political implications of a decision to overturn or limit Bowers. But I disagree with its reasoning,

How come?

Well, this issue simply doesn’t affect people on the other side of the fence much. This isn’t gay marriage, the sort of “public” thing that it’s easy to imagine conservatives or anyone else getting outraged over. Nobody’s going to ride into office on the crest of a wave of public support for the continued existence of sodomy laws. These laws have been disappearing for years in state after state. Heck, I looked at this page and was stunned to find out that 37 states had either repealed or invalidated their sodomy laws. It’s been happening so quietly even I barely noticed. No noticeable decline in public morals can be traced their repeal.

Do most people really want to punish people for private conduct that badly, other than the same people who are already voting with and contributing to the radical religious right?

And, at the risk of sounding tiresome and preachy, this is a civil rights issue, for all the reasons I have listed above. If progressives can’t stand up to this sort of outmoded nonsense, what good are they? Besides, it was even not a liberal who said “Democracy is trivialized when it is reduced to simple majoritarianism,” it was conservative George Will. Let the historical record clearly show that the political branches of government were dragged, kicking and screaming, by the judiciary into supporting the voting rights and other civil rights of minorities in the 1950s and 1960s. This change did not come without cost, but I would suggest that few progressives would dare suggest our world would be better if we had let the George Wallaces and Orval Faubuses have their way.

Finally, in the long view, the future is on our side. Does any progressive doubt that the gay-baiters on the right of today will sound every bit as ludicrous in 35 years as a Klansman sounds today to most people?

It’s about time to relegate these useless, hateful, anachronistic, and flat out stupid laws to the dustbin of American history.

(By the way, this sort of stuff is exactly why having elected judges as if they were just another set of politicians is a Bad Thing.)


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