In
the Bedroom
Come July, the United States Might Finally Make
Homosexuality Legal
The
American Prospect, March 1, 2003
By E. J. Graff
You’re making love. Suddenly the police burst into your
apartment, arrest you for engaging in “deviate sexual intercourse” and
haul you off to jail in your underpants. Are you in: a) Afghanistan; b) Saudi
Arabia; c) Cuba; or d) Texas?
Yes, it’s Texas. On Sept. 17, 1998, the Harris County
sheriff’s office got a complaint about a gunman in a Houston building. After
being pointed to apartment 833, a cop pushed open the unlocked door, drew his
gun—and found two men in flagrante. Off to jail for the night went John
Lawrence and Tyrone Garner, each paying a $125 fine for violating section
21.06 of the Texas criminal code (aka the “Homosexual Conduct Law”), which
bans oral and anal sex between two men or two women.
But the state of Texas did more than merely embarrass
itself and mistreat two men: It gave the U.S. Supreme Court a chance to
reverse its 1986 decision in Bowers v. Hardwick. By ruling that the
Constitution authorized Georgia police to walk into Michael Hardwick’s
bedroom and arrest him for having sex with another man, the Court’s ruling
shocked editorial boards, lesbians and gay men alike. Because of “the
vicious, contemptuous tone in which Bowers was written,” says Matthew Coles,
director of the American Civil Liberties Union’s Lesbian and Gay Rights
Project, “Bowers v. Hardwick has been the font of virtually all the
significant anti-gay opinions in the federal courts.”
“Oh my God, have we been spoiling for this rematch
since 1986?” asks Sue Hyde, New England regional organizer for the National
Gay and Lesbian Task Force. “People have been waiting and looking and
wanting and hoping for just this kind of idiotic police behavior. Because in
order to bring a clean and clearly articulated case before the Supreme Court,
the police have to literally intervene in someone’s home. This is that
case.”
The Court will hear Lawrence v. Texas on March 26. Right
now, four states have sodomy laws that apply to same-sex pairs only; another
nine have all-purpose bans on anal or oral sex that, in practice, are used
only against lesbians and gay men. The hope is that Lawrence will be used to
overturn—or at least limit—Bowers. Which means that, by July, the United
States might finally declare that it’s legal to be gay.
A brief history of sodomy Laws against “homosexual
sodomy” are not in fact linked to “millennia of moral teaching,” as
then-Chief Justice Warren Burger wrote in his Bowers v. Hardwick opinion.
Historically, sodomy was thought nasty for anybody, no matter your partner,
because it meant you were enjoying sex without making babies. Even in the
United States, says Coles, “No sodomy laws focused on gay people before
1969.”
“Sodomy laws were never stand-alone statutes,”
explains John D’Emilio, a professor of history, gender and women’s studies
at the University of Illinois at Chicago. “They were always part of a much
larger package of law that prohibited all forms of nonprocreative and
nonmarital sex.” As Christianity developed its doctrine that sex turns us
away from God, it grouped into the heading “crimes against nature”—i.e.,
crimes against procreation—such activities as masturbation, withdrawal, sex
con bouche or con mano, drinking pennyroyal tea to prevent conception and
doing it with sheep. The early New England colonies used the death penalty as
an incentive to avoid the sinful triumvirate of crimes against
marriage—adultery, fornication and sodomy—the last of which was a
catch-all that could include such acts as molesting young girls without
penetration.
But in the 20th century, as birth control became ho-hum
and “fornication” became a word most people had to look up, sodomy morphed
into a code word for homosexuality. Mid-century, the American Law Institute
drafted a new model penal code that deleted those three archaic felonies,
which a few states adopted whole. But after 1969, in a backlash against the
emerging gay-rights movement, some states kept sodomy on the books—even
pointedly narrowing the law to refer only to two men or two women.
Moral decline or human-rights advance? By now, all other
developed countries (and most of Latin America) have repealed or struck down
their sodomy laws as human-rights violations. South Africa’s Constitutional
Court compared sodomy laws to apartheid, declaring them “a palpable invasion
of ... dignity.” Even here, since 1986, 12 U.S. sodomy laws have either been
overturned by state supreme courts or repealed by state legislatures. Most
deliciously, in 1998 the Georgia Supreme Court struck down the very law that
the U.S. Supreme Court had upheld in Bowers. Editorial writers across the
country, from the St. Petersburg Times to The New York Times, pronounced this
long overdue. Wrote the editors of The Macon Telegraph: “The court’s
decision does not foster moral meltdown. It merely reins in the power of
government to intrude and oppress.”
Of course, Bowers v. Hardwick itself had shocked
mainstream opiners even in 1986. In decisions leading up to Bowers—including
Griswold v. Connecticut, Eisenstadt v. Baird, Stanley v. Georgia, Moore v.
East Cleveland and, of course, Roe v. Wade—the Court had declared that
personal decisions about sex, contraception, abortion, pornography, marriage
and family makeup were beyond the reach of the state. Bowers declared an
abrupt end to that privacy jurisprudence. Since then, it has been cited
repeatedly to deny lesbians and gay men the right to child custody [see “The
Other Marriage War,” TAP, April 8, 2002], jobs, domestic-partnership
benefits and anti-discrimination laws. Sometimes a sodomy-state judge will ban
children from visiting a gay parent who lives with a same-sex partner because
such a visit would expose the children to “criminal activity.” In 1991,
Robin Shahar, a Georgia deputy attorney general, was fired when she told her
boss she and her female partner were having a wedding—implying criminal
activity. In January 2003, a Virginia state legislator suggested that Judge
Verbena Askew, up for reappointment, should be rejected because, as an
admitted lesbian ... you get the idea.
Some gay men, meanwhile, are prosecuted for sodomy
itself. In September 1997, a man in Rhode Island realized a man he’d picked
up had stolen his wallet. When he reported the theft, police charged him with
sodomy. Appalled, the state legislature repealed the law.
But Bowers has an even broader effect than these surface
evils: It’s profoundly humiliating to have your country brand you a criminal
for touching the person you love. “What would it be like to go through life
in a society that said the heart of your intimate life is criminal?” asks
D’Emilio. “I don’t think that’s something a heterosexual can even
imagine.”
The state of Texas, in its argument, says it’s aiming
at precisely that effect. Bill Delmore, a Harris County assistant district
attorney, says the Texas legislature is fully within its rights to keep the
law on the books as “a symbolic expression of disapproval.” Under the
Bowers reasoning, he would be right. But it’s not 1986 anymore. In its three
gay-rights decisions since then, the U.S. Supreme Court’s language toward
lesbians and gay men has been quite respectful—even in Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) and Boy Scouts
v. James Dale (2000), when it said private organizations could discriminate
against gay men. But can government? No, the Court said in its 1996 Romer v.
Evans decision, a state may not “single out” lesbians and gay men in a way
that makes them “unequal to everyone else.” Which is precisely what
Texas’s sodomy law does, banning only lesbians and gay men from oral and
anal sex.
Local Texas papers such as the Waco Tribune-Herald, the
Amarillo Globe-News and The (Galveston County) Daily News have been scathing
about the measure, writing that the “idiotic law” is a “legal
abomination,” that it’s comparable to Taliban rule and that government
should “stay out of Americans’ bedrooms ... even in Texas.” In fact,
except for The Washington Times, I couldn’t find any national publication or
organization that has editorialized in favor of upholding it. U.S. Rep. Barney
Frank (D-Mass.) believes that’s because conservatives are “embarrassed by
this. The right-wing position is, I think, they shouldn’t have been
prosecuted, but the Supreme Court shouldn’t throw the law out, which leaves
them with no coherent position.”
A little win ... or the big one? The worst possible
outcome—a ringing endorsement of Bowers—is considered neither very likely
nor very damaging by gay civil-rights lawyers. Explains Hyde, “That just
means we are where we are: very steadily knocking these things down state by
state, which will continue.”
The second possible outcome is an equal-protection win,
saying that states can criminalize oral or anal sex—but only if they ban it
for everyone. That would end the homosexual-only sodomy laws in Missouri,
Kansas, Oklahoma and Texas. Even better, it might defang the other nine state
laws as well, making it clear that they truly apply to everyone.
But here’s why many people are holding their breath:
The Court accepted review on whether it should overturn Bowers outright.
Lawrence could conceivably declare that American lesbians and gay men are no
longer moral lepers but ordinary citizens. “One of the most interesting
things about the gay and lesbian movement is that there have been almost no
major moments of victory,” says D’Emilio. “There’s no suffrage
amendment, no voting-rights act, no Brown decision, no Roe v. Wade.” If
Lawrence is that victory—well, let’s just say there might be a really big
celebration this July.
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