Unnatural Law
The New Yorker,
December 16, 2002
20 W. 43 St., NY, NY 10036
Fax: 212 840-8489
Email: themail@newyorker.com http://www.newyorker.com/talk/content/?021216ta_talk_hertzberg
By Hendrik Hertzberg
Like whist, whilst, and self-abuse, the word sodomy has an old-fashioned
ring to it. You don’t even see it alluded to much anymore, except in punning
tabloid headlines about the situation in Iraq. But it—or its kissin’
cousin, the nearly as archaic-sounding "deviate sexual intercourse"—can
be found in the criminal codes of thirteen states of the Union, where it is
punishable by penalties ranging from a parking-ticket-size fine to
(theoretically) ten years in prison. Even at this late date, many people are
vague about just exactly what sodomy is. Montesquieu defined it as "the
crime against nature," which is not especially helpful. Blackstone called
it "the infamous crime against nature, committed either with man or
beast," which gets us a little further, but not much. Back in the U.S.A.,
the statute books tend to be franker. Some states bring animals into the
picture, some don’t. The Texas Legislature’s definition is nonzoological.
According to Section 21.01 of the Texas Penal Code (readers of delicate
sensibilities may at this point wish to skip down a few lines), "‘Deviate
sexual intercourse’ means: (A) any contact between any part of the genitals
of one person and the mouth or anus of another person; or (B) the penetration
of the genitals or the anus of another person with an object."
What the Lone Star State does and does not view as some kinda deviated
preversion became of national interest last week, when the United States
Supreme Court agreed to consider Lawrence v. Texas.
The Lawrence of the case is John G. Lawrence, fifty-nine years old, of
Houston, who, on the evening of September 17, 1998, was in his apartment with
a guest, Tyron Garner, who is thirty-five. Texas got involved when police,
having been tipped off by a neighbor that a "weapons disturbance"
was in progress, busted down the door. (The tip was a deliberate lie on the
part of the neighbor, who was later convicted of filing a false report.) What
the officers found Lawrence and Garner doing is really none of our business,
any more than it was any of Texas’s; suffice it to say that it was
consensual, nonviolent, and noise-free. The two men were arrested, jailed
overnight, and eventually fined two hundred dollars each. They appealed, a
three-judge panel of a district appeals court reversed their conviction, the
full nine-judge appeals court reversed the reversal, and the Texas Court of
Criminal Appeals declined to do any more reversing. And so to Washington.
The statute under which Lawrence and Garner were convicted, Section 21.06
of the Texas Penal Code, is officially known as the Homosexual Conduct Law.
Ironically, this statute was a product of the progressive mood of the early
nineteen-seventies. In most of the states that still criminalize sodomy, it
doesn’t matter, legally, whether a couple engaging in behavior (A), above,
consists of two men, two women, or one of each. That’s how it was in Texas,
too, until 1974. In that bell-bottomed year, the Texas Legislature made
heterosexual sodomy legal, but it couldn’t quite bring itself to do the same
for gays. The result is that Texas is now one of only four states (the others
being Kansas, Missouri, and Oklahoma) where it is a crime for gays to please
each other in ways that are perfectly legal for straights. The panel that
overturned the conviction saw this as discrimination on the basis of sexual
orientation. The full state court disagreed. Rather, confirming what Anatole
France called "the majestic egalitarianism of the law, which forbids the
rich as well as the poor to sleep under bridges," the court pointed out
that in Texas homosexuality is illegal for heterosexuals and homosexuals
alike. No discrimination there.
According to the Times’s Linda Greenhouse, the Supreme Court probably
wouldn’t have taken the case unless a majority had already decided to
"revisit" Bowers v. Hardwick
(1986), which upheld the constitutionality of Georgia’s sodomy law. The
decision in that case—by a vote of five to four, as with so many of the
Court’s clunkers—was an embarrassment. Both its language and its reasoning
were shockingly coarse. Writing for the majority, Justice Byron White defined
"the issue"—leeringly, sarcastically, obtusely, and repeatedly—as
"whether the Federal Constitution confers a fundamental right upon
homosexuals to engage in sodomy," or protects "a fundamental right
to engage in homosexual sodomy," or extends "a fundamental right to
homosexuals to engage in acts of consensual sodomy." Any such claim, he
added, "is, at best, facetious."
Caricaturing the well-established constitutional right to privacy in this
nyah-nyah way is like dismissing the First Amendment as being all about the
right to make doo-doo jokes. It was left to the author of the dissenting
opinion, Justice Harry Blackmun, to point out, quoting Justice Brandeis, that
the case was really "about ‘the most comprehensive of rights and the
right most valued by civilized men,’ namely ‘the right to be let alone.’"
Justice Lewis Powell, who tipped the balance in Bowers v. Hardwick,
expressed regret years later that he had voted the way he did. He’s gone
now. John Paul Stevens, who dissented, William Rehnquist, now Chief Justice,
and Sandra Day O’Connor are the only holdovers from the Court that upheld
Georgia’s sodomy law (which, by the way, was thrown out, a few months after
Lawrence and Garner were arrested in Houston, by Georgia’s supreme court,
for violating Georgia’s constitution).
Half the states that had sodomy laws when Bowers was decided have got rid
of them, and those that still have them seldom enforce them. But when they are
enforced the consequences can be more onerous than it may appear. Lawrence and
Garner aren’t just out four hundred bucks; they may also be banned from
certain professions, from nursing to school-bus driving, and are deprived of
other privileges denied to persons who have been convicted of "crimes of
moral turpitude." Anyway, sodomy laws are a standing insult to, among
others, millions of respectable citizens who happen to be gay. They are an
absurd anachronism and an obvious violation of the right to privacy. Whatever
they may have represented in Montesquieu’s day, or even Byron White’s, in
2002 they are nothing but an expression of bigotry. If the Supreme Court takes
a truly honest look at Section 21.06 of the Texas Penal Code, it will surely
agree with the view of Dickens’s Mr. Bumble: this is one case where, at
bottom, "the law is a ass."
[Home] [Editorials] [Lawrence
v. Texas]
