Sodomy and Other Crimes Against Nature
Gay Wired, December
17, 1998
By Stephen H. Miller
Imagine you’re enjoying a romantic evening at home with your paramour. Suddenly,
your front door is slammed open and thugs crash their way into your bedroom. But wait,
these "thugs" are wearing police uniforms and they’re here to arrest you
for the criminal activity that you and your love mate are engaged in - so-called
"sodomy."
This is not a fictional scenario. On September 17, police burst into a suburban
apartment in Houston, Texas, and arrested two consenting adults - Tyrone Garner and John
Geddes Lawrence. The men were charged with homosexual conduct and spent the night in jail.
The cops were investigating a report of a disturbance involving armed men - a report that
later turned out to be false, called in by a neighbor who appeared to have a grudge
against gays. Garner and Lawrence were subsequently arraigned and pled no contest.
While the two men initially kept a low profile following the incident, their lawyers
say they are now determined to apply for a criminal trial in order to challenge what they
regard as an unfair and anachronistic statute.
Fourteen states and Puerto Rico still have sodomy laws that apply to both heterosexual
and homosexual couples (outlawing what used to be termed "unnatural"
intercourse, generally oral and anal copulation). Five states, including Texas, target
only homosexual activity. Punishments for those convicted vary from fines (it’s $500
in Texas) to a theoretical maximum of 20 years in jail in Georgia or Virginia.
Of course, these laws are rarely enforced and there would be an uproar if a state court
actually were to sentence a gay couple to 20 years imprisonment. However, because the laws
remain on the books, they can be used to justify government discrimination against gays
and lesbians in a host of areas. Courts in sodomy states routinely deny a gay or lesbian
parent child custody or even visitation rights because he or she is openly engaging in
criminal activity (that is, they are involved in a same-sex relationship). Ditto for
approval of adoptions. Police departments have refused to hire lesbian and gay officers
because they pursue a "lifestyle" that flouts the law.
And in Georgia, Robin Shahar’s offer of a staff attorney position in Georgia
attorney general Michael Bower’s office was withdrawn when he learned of her upcoming
commitment ceremony with her partner, Fran, and decided she would be perceived as
unwilling to enforce the sodomy law. Bowers, or course, is the same attorney general who
had successfully defended state sodomy statutes before the Supreme Court back in 1986.
But the effects are even broader, impeding a wider acceptance of gay people. How can
the United States appoint an openly gay ambassador, say the anti-gay crusaders, when his
domestic relationship is a violation of the law in 19 states of the union? How can we
allow tolerance of homosexuality - a criminal activity - to be taught in schools? How can
the U.S. armed forces be expected to admit openly gay service members when their private
lives are illegal in many states where they’d be stationed (not to mention under the
military’s own sodomy prohibition in its code of military conduct)? And how can
states recognize gay marriage when the honeymoon would be felonious?
Earlier this year, after the American Civil Liberties Union filed a class-action
lawsuit, a Maryland court threw out that state’s statute making homosexual oral sex a
criminal act. One of the plaintiffs in this case had been arrested simply because he had
agreed to go home with an undercover male officer. The man, a federal employee,
subsequently had trouble obtaining a security clearance when he was promoted. In sodomy
states, victims still fall prey to similar incidents of police entrapment. Arrests for
merely agreeing to a solicitation to have same-sex relations, even if the sex is to be
engaged in at home, can mean a criminal prosecution, fines, your name in the papers loss
of a job, and untold personal trauma.
Let’s not forget the political implications. In Arizona, a legislative debate last
February highlighted some of the fault lines among the two wings of the GOP regarding the
government’s role in policing consensual behavior among consenting adults. State Rep.
Winifred "Freddie" Hershberger, a Republican, led an unsuccessful attempt to get
rid of that state’s prohibition on "the infamous crime against nature" - a
state law interpreted as outlawing same-sex relations. "I’ve always said that
government interference in personal life is wrong," she Hershberger. She was joined
by another Republican, Rep. Barry Wong, who observed that "The broader philosophy is
what is government’s role with regard to morality - and the government’s role in
the bedroom." Those who call themselves conservatives, he added, should be consistent
in their belief that the state shouldn’t be legislating these issues,
"regardless of your views of these types of activities between adults."
That libertarian concept, however, didn’t sit well with two other GOP
representatives in the state house, both of whom are backed by the religious right. Rep.
Karen Johnson was unwilling to leave such issues to spiritual rather than legal guidance.
"We legislate morality every day," she said. "It’s either my morality
or somebody else’s." And Rep. Dan Schottel chimed in that the law was necessary
to preserve "our morals and our ethics." Back in Texas, Harris County Republican
Party Chairman Gary Polland last week said gay-rights groups would have a fight on their
hands if they try to challenge the 119-year-old state law, saying, "We think it would
definitely send a wrong message and signal a continuing deterioration of morals in our
society."
Thirteen years ago, the Supreme Court upheld state sodomy laws in its infamous Bowers
vs. Hardwick decision. That ruling, with a slim 5-4 majority, focused on
Georgia’s statute prohibiting sodomy among both straight and gay couples (although
Michael Hardwick and his partner were gay - the police don’t arrest consenting adult
heterosexuals in the privacy of their bedrooms). Since the Texas statute applies only to
same-sex couples, there may be an opening here for a reversal should the current case
eventually make its way to the nation’s highest court. If it stays in the state court
system, it might at least bring about the demise of the Texas statute. While a national
victory would be reason to rejoice, if these battles must be fought state by state, so be
it. But, for justice’s sake, fight we must.
Stephen H. Miller is a writer based in Washington, D.C.
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