In the Bedroom

Last edited: January 02, 2005

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 125ƒhƒ‹ 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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