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Saturday, July 12, 2003

Here In Your Bedroom

So, state sodomy laws failed “rational basis” review after all. The question of what is “rational basis” for a law is always a dicey one, and courts have usually given wide latitude to the states and to Congress. So why not this time?

• Although gays are not a protected class for Equal Protection purposes, the Court struck down Amendment 2 in Colorado (Romer v. Evans), because it frowns on legislation clearly designed to be prejudicial toward any class, whether a protected class or not.
• Generations of law reformers since the first Model Penal Code have advocated for the jettisoning of one category of criminal statutes in particular – those that the government has no real intention of ever trying to enforce, since they are so routinely violated in most people’s everyday lives that to enforce them would make large numbers of citizens unwitting criminals.
• These laws are used far less often in and of itself than they are as a form of blackmail against those presumed to have violated them. Thus, gay men and lesbians are deemed unqualified for a host of public jobs and unfit parents in child custody cases. The main purpose of these laws is to make gay men and lesbians presumptive criminals.

I was really surprised how sweeping the opinion was in its scope – how it was an unapologetic full frontal attack on Bowers v. Hardwick, even going so far as to say that not only is it wrong today, but that it was wrongly decided in the first place. (The Court seldom repudiates a past decision in this fashion, especially one less than 20 years old.) Not only did the four states that singled out same-sex acts for punishment lose, but the nine states that made no distinction between same-sex and opposite-sex acts lost as well. The court did not even address the Equal Protection issue but preferred to toss the statute out on broader grounds. And the majority opinion was written by Justice Anthony Kennedy, a Reagan appointee not exactly known for his liberal leanings.

Justice Antonin Scalia wrote a dissent that was three pages longer than the majority opinion. I guess I’m just so disappointed with the shrill nature of much of Justice Scalia’s dissent – much of it sounds as if written by a brainwashed college freshman for a Focus on the Family newsletter rather than a brilliant legal mind for the highest court of the land. Even Scalia’s acolyte Clarence Thomas decided to add his own blurb about how he thought the Texas law was “silly,” in an attempt to distance himself from the worst elements of his colleague’s main dissent.

I won’t deal with the parts about the Court signing onto “the homosexual agenda” and the “culture war,” other than to mention that the civil rights decisions of the Warren Court, without which we might still have Jim Crow segregation laws in many states, were arguably part of the “culture war” as well. I’m also going to ignore the lengthy rants about abortion, because, well, this case and the questions surrounding it have essentially nothing to do with abortion.

I will object to his conflation and his confusion of the state of the law with the supposed “moral opprobrium” towards homosexuality that exists in much of society. It is not necessary to say that individuals cannot direct “moral opprobrium” toward others to deny said individuals the power to imprison those other just because they are engaging in conduct those individuals happen to dislike.

I mostly want to talk about how disappointed I am that Justice Scalia echoed the foolish comments of Sen. Rick Santorum (R-Pennsylvania) about what the implications of the end of Bowers would be. More specifically, he conjures up a parade of horrors that would follow in the wake of a court finding that “rational basis” means something other than the mere prejudices of legislators. Polygamy. Fornication. Adultery. Bestiality. Public Indecency. Obscenity. Incest. States could no longer shield its citizens from exposure to these abominations. Soon, the military would be forced to accept gays against its will by the Courts. Then, states would be forced to recognize same-sex marriages.

Now I expect this sort of overheated nonsense from a far-right politician. They need something to put in their fundraising letters. I feel I have a right to expect more from respected legal scholars and jurists in this setting.

Will, I will agree 100% with Scalia on a small part of his rant about the parade of horrors he thinks are about to follow this decision. Laws against masturbation, in and of itself, appear to be headed for oblivion. I expect that most people would have the same reaction to this as many people did to the announcement of the end of “Murphy Brown;” but instead of “that’s still on the air?” it would be “there were still laws against that?”
If you think that this is some sort of tragedy, I would only half-jokingly suggest emigration to a Taliban-held area of Afghanistan. Except that they probably don’t have “Murphy Brown” reruns in those areas.

Alabama’s infamous prohibition of sexual devices might be in trouble too. I’m not sure what to say about that, other than to express my sympathy with the people of Alabama, other than whoever is responsible for making Alabama such a ripe target for ridicule by passing this sort of legislation. I will charitably assume that no one actually campaigned on the issue of outlawing the dildo; I would hope that political campaigns in Alabama turned on issues more important or at least less silly.

I will even go so far as to agree that Justice Kennedy’s broad opinion in Lawrence probably makes any blanket prohibition of fornication - any sexual activity between persons not married to each other – problematic at best. Those laws could potentially accomplish the political goal of the religious right to single out gays for persecution, being specially denied the right to marry their partners, since homosexuals are still not a protected class under federal law. (However, since they are a protected class under many state laws, those states may have trouble squaring such anti-fornication laws with equal protection.) Though more consistent and intellectually honest as a rationale for proscribing sexual conduct than that which Texas and the other states with sodomy laws have tended to employ, such laws seem to run afoul of the recognized right to privacy as articulated in the Court’s latest decision. And if even if they didn’t, to those who want to go down this road, well, I would hazard a guess that there is almost no support for their position in the political arena anyway.

As for me, I’m saying good riddance to such laws, to the extent that they still exist. Their deaths are more overdue than the end of “Arli$$.”

But beyond those relatively uncontroversial topics, there need be no flood of fallen “morality” laws. Perhaps in the narrow world of arch-conservatives who feel the need to ban things to validate their existence, a look into the rationality of mores is a taboo. But in a post-Enlightenment society, our worldview ought to give us a deeper understanding of the roots of those mores so that we might better suit them to our society.

With regards to adultery, a sexual act where one of more of the partners is married to someone else, you have another set of issues besides mere moral opprobrium. You have the breach of a marriage agreement, and therefore you have an aggrieved party. You have the breaking of a covenant, presumably voluntarily agreed to, between the adulterer and the aggrieved spouse, that implicates long-recognized state interests. In short, you have a lot of things the law recognizes well over and above the idea that you have activity of which some politicians disapprove. Now, in strictly practical terms, I don’t think there’s much political support for making infidelity a criminal matter on a regular basis, but if push came to shove, a state could probably still outlaw adultery, in the narrow sense, if it so chose.

(As an aside, it’s odd that Scalia would cite a 1999 state case from Maryland on this particular issue which referred to Bowers as a key reason to outlaw adultery. That state threw out its own sodomy law in 1998. Apparently Maryland sees no inconsistency.)

With polygamy, again, there is a whole new set of issues, similar to the ones outlined in the above paragraphs on adultery. The issue of polygamy is tangential at best to the issue of sexual privacy, since laws against polygamy are only about which marriage agreements a state will recognize between whom.

Prostitution has a sexual component, though it has an economic component as well. At a fundamental level, prostitution does not outlaw sex acts themselves, but rather the payment for the sex acts. Moral opprobrium is one reason, but not the only reason, that most jurisdictions in this country outlaw prostitution. There is, among other things, the tendency of prostitution and drug use, and prostitution and violence, to go hand in hand.
As a personal matter, I am unconvinced that laws against prostitution - which drive what could otherwise be a better monitored and regulated business into an underground, illegal hidden economy - do more good than harm. But as a legal and constitutional matter, it does not follow that the end of criminalized sodomy means legalized prostitution.

Public indecency laws, contrary to the Scalia dissent’s implications, need not go anywhere either. They govern conduct in public. Even married persons engaging in wholesome, monogamous, procreative lovemaking of which Justice Scalia or Sen. Santorum would approve would still be criminals if they were doing so in public.
Not empowering Texas politicians, cops and judges to incarcerate people for what they do in their bedroom has no relevance to conduct that occurs in the view of the general public.

The general preservation of “public morality” as defined by lawmakers is far from the only justification for criminalizing obscenity. Though I am somewhat uncomfortable with the notion of censoring something based on its “offensive” content, I believe that the most compelling reasons to ban obscene content are to protect children from exposure, and to protect subjects in some cases from exploitation. Obscenity bans can easily survive the rationality review inspired by this decision.

And with regard to pedophilia and bestiality…those arguments are just attention-grabbing grasps at intellectual straws. A minor child is deemed to be incapable of giving consent to sexual activity of any kind. The same is true of animals – animals cannot be said to be capable of offering meaningful consent. I find it especially saddening that, in the 21st Century, a Supreme Court justice would stoop to conflating what two consenting adults did with each other with molesting an animal, and doing so in such an intellectually dishonest fashion.

The incest issue produced slightly more intellectually interesting implications, but there are still ample grounds to proscribe incest. As a practical matter, most incest is abuse of a minor, usually by an adult but sometimes by another minor. Most types of family relationships (particularly parent-child, even if both are adults) can be said to cast serious doubt on the consensual nature of even ostensibly consensual acts of incest. The prevention of genetically defective offspring seems a decent and sustainable justification for prohibiting at least procreative incestuous sexual acts.

Likewise, incestuous marriages can still be proscribed, because the marriage right is a different right governed by separate principles, for roughly the same reasons that polygamous marriages can be proscribed.

(I am puzzled by one thing, however, from a purely intellectual standpoint…is there a good reason, and remaining grounds, to punish, say, two adult brothers or sisters for messing around with each other? As far as I know, this sort of thing essentially never happens, but if there’s a reason for bothering to outlaw this conduct, I haven’t found it. Nor, truth be told, have I ever found much reason to care.)

As for the military, well, the military has always received a good deal of latitude to set their own policies – the federal judiciary generally takes great pains to leave them alone. Members of the military are often denied the right to activities allowed to civilians. (That said, the ban on gays in the military is more than a little silly as a policy; a conservative can hardly claim that the British and Israeli militaries, among others, are world laughingstocks because they allow gays in their ranks.)

This leaves the issue of same-sex marriage. Now, naturally, I am in favor of them, so this next paragraph is tough to write.

However, as I have been saying, marriage implicates the government in a way that private sexual conduct does not or should not. When the state sanctions your marriage covenant, it becomes a public act. The public – and by extension, the government - has an interest in a marriage over and above any interests they may have in the parties to the covenant themselves. This fact has several public policy implications that serve as the foundation for divorce law, among other things. The government – state and federal - has the ability to define the parameters for conduct that implicates them in a way they do not or should not for purely private conduct.

Indeed, at some level, if you’re not passing laws that by definition make every gay man and woman a criminal, solely because they cannot marry each other, you’ve taken away one fairly strong argument for same-sex marriage.

In short, no, the end of the world is not coming. If Denmark, the Netherlands, and Canada haven’t been pelted with burning sulfur yet, neither will the United States.

The only losers in this decision are a band of bluenosed, busybodying bullies who have had their way on this issue for far too long. And even they didn’t lose very much – they’ll just sulk over a group of archaic laws that no one bothers to enforce for a bit and forget about it shortly thereafter. Everyone else is a winner.

Remember the following the next time you vote.
1. Sen. Santorum thinks that he and other politicians should be able to write a list of approved and unapproved sexual practices for all citizens. This includes straight people as well as gay people – well, actually gays are supposed to be 100% celibate. If Sen. Santorum finds the idea of any act you should happen to perform repugnant, he thinks you should go to jail. Sen. Santorum has stated that he believes there should be no right to privacy, whether in bed or not.

2. Justice Scalia has said that he agrees with Sen. Santorum. Two other justices more or less agree with Scalia.

3. Most of the people who feel the same way as Scalia and Santorum do on this issue and related issues constitute the biggest base of support for President Bush.

4. President Bush, who is taking great pains to dodge this issue as long as he can, has said that he sees Justice Scalia as a model for future Supreme Court appointments. Also, his top law enforcement official, Attorney General John Ashcroft, can make Santorum and Scalia look like moderates by comparison.

5. If President Bush is allowed to nominate and confirm two or three justices who agree with Scalia, their view will be the law of the land. In practical terms, we are already seeing this being played out to an extent in lower federal courts.

6. So your real-world odds (even if you happen to be gay) of going to jail because you do something in bed that Sen. Santorum (or his equivalents in your state legislature) disapproves would still be quite low. Still, do you want your rights defined by people like these? What other aspects of your private life are they going to decide are their business? Besides, if the judiciary cannot restrain people like Santorum and Ashcroft, what will? How long will it be before they decide that something you or a friend or a loved one do or say in private is immoral, or unpatriotic and worthy of punishment? That such politicians now need more of a reason than “Because I said so” should be a comforting thought.


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