The Last Gasp of Jim Crow
National Journal,
November 21, 1998
1501 M St., NW #300, Washington, DC 20005
By Jonathan Rauch
At a moment when Washington’s eyes are fixed on Kenneth Starr and Saddam Hussein,
I make bold to ask you to divert your attention, for just a few moments, to two other men,
named John Geddes Lawrence and Tyrone Garner. In the occasionally great state of Texas, in
the sometimes peculiar United States of America, the two of them are scheduled to be
arraigned before a judge on Nov. 20 — the day this column is published — for the
crime of having sex in the privacy of Lawrence’s home.
At about 11 p.m. on the night of Sept. 17, Harris County sheriff’s deputies
entered Lawrence’s unlocked apartment in the suburbs of Houston. They had received a
tip, which was false, that an armed intruder had broken in. They found not a robber but
Lawrence and Garner having sex. Under Texas’ law, homosexual (but not heterosexual)
oral or anal intercourse is a class C misdemeanor carrying a fine of up to $ 500. So the
police arrested the two men. One of them, according to their attorney, Suzanne B. Goldberg
of the Lambda Legal Defense & Education Fund, was trundled out of the apartment in his
underwear. Before bail was arranged, they spent that night and the next day and some of
the next night in jail.
Well, the law is the law, right? "If we just say, ‘Let this thing go
away,’ " Harris County District Attorney John B. Holmes Jr. told the Houston
Chronicle, "then we’re not really complying with the law and I’m not
comfortable with that." Next up, the trial, the probable conviction, and a court
battle that gay activists hope may end in the overturning, at long last, of Texas’
119-year-old sodomy law.
"I’ve always said that the best way to get rid of a bad law is to enforce
it," Holmes said insouciantly. Nice that he could be so cheerful. "The
defendants, like anybody who’s arrested by the police, have had their lives turned
upside down," says Goldberg.
Today, 19 states have sodomy laws, five of which specifically apply only to homosexuals
and all of which are effectively enforced only against homosexuals. "One of the
arguments used for anti-sodomy laws is that they are never used," Rep. Barney Frank,
D-Mass., said in an interview. "This Texas situation totally rebuts that."
I know, you have enough on your mind right now without worrying about the odd
priorities of law enforcement in Texas. Still, let me suggest a few groups of people who
ought to care about ridding the country of sodomy laws. One group, of course, is
homosexuals. My partner and I, for example, don’t much enjoy being class 6 felons in
the state of Virginia, where he lives. Civil libertarians should care, and do. I want to
suggest, though, that several other groups of people — conservative moralists,
respecters of law, and you — should also care.
Conservative moralists now find themselves in a pickle. On the one hand, the elections
this month gave them a poke in the eye. Christian Right governors lost in two conservative
Southern states; Matt Fong, the Republicans’ failed Senate challenger in California,
got in trouble when it became known that he had given $50,000 to the Rev. Louis
Sheldon’s anti-gay Traditional Values Coalition. The Republicans who did best were
centrists who eschewed judgmental rhetoric, notably the Brothers Bush. One response would
be for Republicans to give up moralizing. They can’t, though, because their most
loyal voters are moralizers; and, much more important, they shouldn’t, because the
country needs to hear what the moralists have to say. In the long run, the politics of
vacuous nonjudgmentalism ducks issues that voters need to decide: who is accountable for
crime and social rot, what to do about teen pregnancy and out-of-wedlock childbirth, and
so on. Wherever personal lifestyles have public implications, morals talk is essential.
But the moralists have a problem, and it is one that Barry Goldwater would recognize:
Every time they open their mouths, they scare people. They sound intolerant, censorious,
crabby. Somehow, they need to convince the voters that they know the difference between
promoting morality and legislating it. Coming out for the repeal of sodomy laws furnishes
them with just such an opportunity.
Lately, religious conservatives, having painfully learned that anti-gay rhetoric has
become a wedge issue against Republicans more than against Democrats, are trying to turn
the tables by insisting that it is they who are oppressed and who favor real toleration.
"We just want to be left alone to raise our families our way," they say,
"with equal rights for everybody but no special rights for anybody." So why are
the voters unconvinced?
On ABC’s Nightline in July, Janet Folger of the Center for Reclaiming America, a
Christian conservative group, said, "No one wants to take away from the rights that
every citizen enjoys, the equal rights that are enjoyed even by those in the homosexual
community. . . . But what the problem is . . . (is) in special rights." In that case,
should homosexuals "enjoy" the "equal right" to make love in private?
Well, it turns out, some equal rights are more equal than others. Pressed on whether she
supported criminal sodomy laws, Folger danced all around the room before finally owning
up: "I guess if you’re looking at sodomy laws, there are sodomy laws on the
books that I very much support."
Those sodomy laws are America’s last true Jim Crow laws. To criminalize the
expression of intimacy between consenting adults, in the privacy of their homes, is malice
dressed up as morality. Now imagine that the Christian moralists stepped forward and
called for the repeal of sodomy laws, proclaiming, "We think homosexuality is sinful,
but it’s a matter for the pulpit, not the police." By showing that they do,
after all, take seriously the distinction between moralizing and criminalizing,
conservatives could earn some of the credit they need to gain the public’s trust on
moral issues.
People who value respect for law should also care. In Paula Corbin Jones’
sexual-harassment suit against President Clinton, the law demanded to know the name of
every woman other than his wife with whom Clinton had "had," "proposed
having," or "sought to have" sexual relations during the whole span of his
career, beginning when he was attorney general of Arkansas. When the law behaves like
that, the public decides that maybe lawbreaking isn’t so bad. And when the law busts
adults for expressing intimacy in private, it begs to be despised.
A third group should care: people who want America to be a better and more just place.
Many such people pooh-pooh sodomy laws on the grounds that they are rarely enforced. But
they are enforced, often indirectly. In July, the North Carolina courts revoked Fred
Smith’s custody of his two children partly because his relationship with his partner
involved illegal acts. The laws are enforced directly, too, and not just in Houston.
One warm spring day in 1995, in Topeka, Kan., Max Movsovitz parked his car in Gage Park
and busied himself with some paperwork. He knew he had parked in a spot where gay men meet
one another, and he was open to such a meeting, but he also knew that the police conducted
stings there and he had no intention of either soliciting sex or engaging in it in the
park. After a while, a man drove up and started a friendly conversation, soon steering the
discussion to sex. He said he was looking for friends and asked what Movsovitz was into.
Movsovitz acknowledged that he liked oral sex. Oh, said the man, would you do that to me?
Movsovitz agreed. The undercover officer arrested him on the spot.
Unbeknownst to Movsovitz, in Topeka it is illegal to agree, while in any "public
place," to have same-sex relations, even if the sex is to be conducted at home. If a
woman meets a man in the park, lets him chat her up, and accepts his invitation to go home
for a little you-know-what, that is perfectly legal. Movsovitz, on the other hand, was
convicted and, this past summer, lost on appeal. He was fined $199 and was ordered to stay
out of Gage Park for two years. The local newspaper reported his arrest for "trying
to solicit homosexual sex acts from plainclothes police officers in Gage Park." He
told me: "I was stunned. I always say it was like getting punched in the stomach. I
was like physically — I couldn’t eat. It was just so humiliating and
infuriating. Nothing like this happens in my family."
This year is the centennial of Oscar Wilde’s release from prison, where he served
more than two years for sodomy. After 100 years, Lawrence’s and Garner’s 24
hours or so in jail no doubt represents some sort of progress over Wilde’s two years
in jail. But in Topeka’s Gage Park, the stings are still going on. In Houston, a
sodomy trial begins.
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