Reply to Prof. Wildenthal’s Response to My Column, "When Democrats Do Bad
Things"
By Dale Carpenter, July 7, 2000
dalecarp@tc.umn.edu
I am sure Professor Wildenthal had somebody’s arguments in mind when he wrote his
"Response" to my column entitled, "When Democrats Do Bad Things." But
he wasn’t responding to my arguments. It’s clear that he — and his
"many friends and family in Texas who supported" Richards — is a Richards
partisan. I can certainly understand why he and other Richards devotees would want to
minimize her role in preserving, and strengthening, Texas’ anti-gay sodomy law. But
that shouldn’t keep the rest of us from dispassionately weighing Richards’
actual legacy.
As a native Texan who actually lived there during the sorry spectacle of Richards’
surrender on the sodomy law issue, I have to correct a few errors in his understanding of
my original piece and in his understanding of the relevant history. Contrary to
Wildenthal’s charge, I have never written that Richards actively supports the sodomy
law. She may well oppose it on paper, as Wildenthal thinks. My point is that she did
nothing practical to oppose it and in fact is partly responsible for its current existence
in Texas law.
Professor Wildenthal is right that — as I pointed out in the original column
— the current version of the Texas sodomy law was part of a comprehensive overhaul of
the state criminal code. But he’s wrong that Richards did anything substantive to
eliminate the Texas sodomy law.
When the original revision to the code that came out of committee omitted a sodomy law,
at first no one noticed. Then an Austin newspaper reported the omission. Thereupon, social
conservatives lobbied hard to have a sodomy law included. Richards, however, did nothing
to lobby the legislature against its inclusion. As with President Clinton on the
"Don’t Ask, Don’t Tell" gay military ban, Richards may have taken the
right stand in theory ("opposing" the offensive law, as Clinton
"opposed" the gay military ban) but she did nothing in practice to stand in the
way of anti-gay political forces. Not only did she fail to lobby the legislature on the
issue, she gave no public speeches urging that the sodomy law be eliminated. Thus,
Richards, deservedly famous for her oratorical skill, was strangely silent when this most
fundamental issue for gay civil rights and personal privacy arose.
It’s not enough for a politician to mouth the right things, such as opposition to
a sodomy law. We need politicians who won’t go AWOL when we need them. On the sodomy
law, Richards was manifestly and demonstrably AWOL.
After deserting us during the drafting process, Richards was confronted with a choice:
either sign the comprehensive criminal code provision containing the sodomy law she
"opposed" or veto it.
Professor Wildenthal acknowledges that Richards signed the law containing the criminal
sodomy provision. Yet he thinks her veto would have been useless since the previous
version of the sodomy law would have remained. Yet had Richards mustered the courage to
veto the bill, the legislature would have likely re-drafted it to omit the provisions that
theoretically offended her. That would have been politically risky for Richards, to be
sure, but then that’s the kind of risk we ask of politicians who are supposedly our
heroes.
More interestingly, Wildenthal concedes that Richards was motivated to sign the
anti-gay sodomy bill because vetoing it "would have sacrificed many other unrelated
progressive improvements in the code." This is the heart of the matter. Rarely have I
seen a more candid confession that progressive politics takes precedence over gay civil
rights for some of our "friendly" politicians. That act may or may not be
justified in a given context, depending on what’s at stake, but at least we should
acknowledge that’s what’s occurring. It’s a case where gay civil rights and
personal privacy are sacrificed on liberalism’s altar. I’m glad Wildenthal
agrees with that empirical observation.
With so little to say in defense of Richards, Professor Wildenthal attacks Governor
Bush for supporting the sodomy law Richards signed. This is a common strategy in the
defense of wayward Democrats: we can’t really defend "our" guys so we say
the Republicans are worse. It’s similar to the strategy we’re seeing on the
debate over the ban on gays in the military: Bush is now blamed for supporting the policy
"compromise" ("Don’t Ask, Don’t Tell") the Clinton-Gore
administration signed into law.
I, too, have been critical of Governor Bush’s verbal support for the sodomy law,
as readers of the sodomylaws.org website well know (see "Governor Bush, Sodomy Law
Defender"). (By the way, contrary to Wildenthal’s claim, I have not announced
support for Bush’s presidential bid. In fact, in the above-mentioned column posted on
this website, I explicitly stated that I would not support Bush as long as he publicly
backs sodomy laws.)
Yet Wildenthal carries his condmenation of Bush too far. He notes that Bush is
Texas’ "chief executive," implicitly suggesting that Bush might be able to
halt the prosecution of two men in Houston for violating the law. But the Houston men are
being prosecuted by the Harris County District Attorney’s office, over which Bush has
no control. The case is on appeal (with the most recent court invalidating the state
sodomy law), so it would be premature and unprecedented for Bush to try to
"pardon" the men, as Wildenthal proposes. I’m unaware of instance in which
Gov. Richards pardoned a sodomy law offender.
There is plenty of blame to go around for the existence of an anti-gay sodomy law in
Texas. Much of it surely belongs on the Republicans and Democrats in the
Democratic-controlled Texas legislature that passed the law back in 1993. Everyone agrees
with that. But Richards has so far gotten a free pass on the issue. It’s time to stop
making excuses for her passivity. Richards may have been a "great progressive
governor," as Wildenthal believes, but let’s not pretend that her record on gay
civil rights is nearly so great.
Dale Carpenter, Associate Professor, University of Minnesota Law School
[Home] [Editorials] [Texas]
