Time to end anti-sex laws


I was in high school when I lost my virginity. Like any self-possessed teenager, I spent hours staring into the mirror and scrawling in my journal about what that special night “meant.” But I was an unusual kid in two ways: extraordinarily nerdy, and gay. Soon thereafter, confused by rumors, I visited my local law library and dug up the relevant statute: “Sodomy”, a Class IX felony, maximum penalty ten years’ imprisonment. I put my head down on the desk and sobbed. It took me years to realize that the crying shame belonged not on me, but on the leaders who had left this antiquated and intrusive law on the books.

This term, the United States Supreme Court indicated a willingness to catch up with the times when it granted certiorari in Lawrence v. Texas. On March 26, the justices will hear arguments on whether Texas can proscribe private, consensual sexual activity. The answer is clear: The time has come to get the state out of the bedroom.

Texas, Oklahoma, Missouri and Kansas specifically outlaw homosexual sodomy. In 10 other states, any oral or anal sexual activity is technically illegal, even between a man and a woman (thus inspiring the T-shirt “So-do-my friends, so-do-my neighbors….”).

Lawrence poses a direct challenge to Bowers v. Hardwick, the 1986 case in which the Court upheld Georgia’s sodomy law by a vote of five to four. Justice Lewis Powell later admitted that he had “probably made a mistake” in casting the swing vote. In a modern-day parable on speaking truth to power, 1985-1986 Powell clerk Cabell Chinniss later admitted that despite the justice’s repeatedly asking him questions about Bowers, he never explained that he himself was gay.

The time is ripe for rectifying the Bowers mistake. In the last decade, a number of state courts have struck down sodomy laws, and state legislatures have repealed several others. As more and more Americans “come out,” even conservative Christians are forced to acknowledge that the sexual acts they decry are but one component of gay people’s lives and relationships. Gay visibility and societal integration have inched forward via such victories as President Clinton’s willingness to say aloud the words “gay and lesbian,” the much-hyped if largely asexual TV presences of Will, Ellen and Rosie, the passage of state and local anti-discrimination ordinances and the proliferation of high school Gay-Straight Alliances. A legal guarantee of sexual privacy will be another advance on the long road to equality.

Eliminating sodomy laws is important both practically and symbolically. Although criminal penalties are rarely imposed, the laws are still often cited as justification to deny gays, lesbians and bisexuals equal treatment in areas like parenting rights and employment law. They also contribute to queer-identified individuals’ standing as second-class citizens, and to many Americans’ skepticism about the moral stability of our legal system.

The legal justifications for repealing Bowers are many. Sodomy laws violate the due process and equal protection clauses of the 14th Amendment, since they lack a legitimate secular basis for state intervention and are imposed disproportionately against gay individuals. They also blatantly affront the right of privacy, delineated in Griswold v. Connecticut and tailored to focus on “human dignity” by subsequent Supreme Court cases. Other constitutional, precedential, and policy-based arguments are spelled out in the numerous amicus briefs filed on behalf of the Lawrence petitioners, by groups ranging from the American Bar Association to Amnesty International to the Republican Unity Coalition.

Acknowledging that private consensual sex is not a subject for police intervention does not necessarily mean accepting or supporting homosexuality. Fellow citizens have the right to damn practicing homosexuals to hell, or to omit us in forming private associations, but that shouldn’t correlate to criminal prosecution. Legislating religious teachings is the way of a fundamentalist society. Our courts have gradually recognized that state legislatures can’t ban everything they find distasteful. Even Jerry Falwell has said he advocates making homosexuality “taboo” but not sending people to jail for it.

In his RECORD column last week (“‘Private’ acts, ‘public’ harm”) LL.M. Lee Strang complains on behalf of those who disapprove of homosexuality in an era when tolerance is growing: “They are made to feel like aliens in their own society.”

Ironically, I know the sensation. Ten years ago, in a dark corner of the T.C. Williams Law Library, it took firm hold. I would feel a lot less alienated if I were allowed to serve in my country’s military, or if my partner and I had the option of getting married. But feelings aren’t the government’s responsibility, per se. Equal protection of civil liberties is, and overturning Bowers is an important piece of business that the Supreme Court needs to complete. Meanwhile, if Strang feels alienated from America’s pluralistic norms, he’s welcome to leave.

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