When George W. Bush was governor of Texas, he supported the state’s anti-sodomy laws. He called them a “symbolic gesture of traditional values,” suggesting that they didn’t really harm anyone while encouraging pleasant things like church weddings and babies born in wedlock. This was compassionate conservatism, remember?
But substitute another word for sodomy, say, discrimination, and suddenly you have more than a symbolic problem. Would poll taxes or segregated water fountains be worth keeping on the books as a “symbolic gesture of traditional values”? Would it be reasonable to foresee how such laws could be used as a tool to abuse people?
Last week’s Supreme Court decision to strike down Texas’ same-sex sodomy law was not just housecleaning. It was not merely the act of sweeping a legal anachronism out of the closet. “The core of this opinion is that individuals have the right to choose and define their own intimate, personal relationships,” said R. Bradley Sears, director of UCLA’s Charles R. Williams Project on Sexual Orientation Law. “The connection that was made in the majority opinion is that sodomy doesn’t exist in a vacuum. That conduct exists in the context of gay and lesbian relationships and families.”
For years the argument was that sodomy laws didn’t need to be revoked because they were hardly ever enforced. But, as many pointed out — including plaintiffs Lawrence and Garner, who challenged their Texas sodomy conviction — the laws aren’t enforced until someone wants to discriminate.
In Alabama a few years back, a lesbian mom found that out the hard way when she showed up to court for her children’s custody hearing. The judge wanted to know if the lesbian mom and her partner had showered together that morning. Only when the mom told the judge that her mother had stayed with them in their hotel room was she off the hook. In Kansas, conservatives blocked the addition of “sexual orientation” to the state’s hate-crimes law, insisting that the Sunflower State had no need to protect criminals.
In her concurring opinion to last week’s ruling, Justice Sandra Day O’Connor noted that in Texas a sodomy conviction would prevent a person from becoming a doctor, an athletic trainer or, bizarrely enough, an interior designer — any profession that requires state certification and a crime-free record. A sodomy conviction also would force a person to register as a sex offender in four states. From Utah and Florida, sodomy laws have been used as the excuse for things as varied as preventing gay adoptions to thwarting sexual-orientation discrimination cases.
“This is not just about fucking,” said Jon W. Davidson, senior counsel with the Lambda Legal Defense and Education Fund, the gay-rights group that argued the case before the Supreme Court. Because of this ruling, “We are going to enter courtrooms on a more level and fair playing field.”
Even in the narrowest, most literal sense, the Supreme Court decision was breathtaking in its scope. The court majority invalidated sodomy laws in the four states that target gays, while also striking down laws in another nine states that made it a crime for consenting adults, gay or straight, to practice oral or anal sex in their own homes. Justice Anthony Kennedy, writing for the majority, went further than many court watchers expected. “When sexuality finds overt expression in intimate conduct with another person,” wrote Kennedy, a Reagan appointee, “the conduct can be but one element in a personal bond that is more enduring.”
Kennedy, who frequently sides with the court’s ultraconservatives, pretty much wrote that gay relationships are okay, and families with gay parents are okay, something the federal government has never come close to endorsing. It was a portentous extension of the American Dream to a class of people who, only a few decades ago, were routinely hospitalized to “cure” their sexual orientation.
No one seemed to understand this better than Justice Antonin Scalia, who wrote the dissent. To read the apoplectic Scalia, there was even more at stake than a world where gays and lesbians can look forward to equality. The court majority, said Scalia, has paved the way for adult incest, bestiality and bigamy. If the court was so determined to change direction — it had previously upheld sodomy laws — then it was high time, he argued, to revisit Roe v. Wade.
Scalia still clings to the earlier precedent of the 1986 Bowers v. Hardwick decision. “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching,” wrote then–Chief Justice Warren Burger. Of course, the Supreme Court also once upheld slavery and later validated segregation. The world around Scalia has changed even if Scalia refuses to.
One of the five votes in that 1986 ruling came from Justice Lewis F. Powell Jr., who claimed he’d never met a homosexual. Powell didn’t realize that one of his own law clerks at the time was gay, noted Edward Lazarus, author of Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court. These days, all the top law schools have gay-student groups. “That 17 years since Bowers, there’s been a real shift in the cultural barometer on gay rights. You couldn’t have a Justice Powell anymore who had complete ignorance of the issue,” said Lazarus.
That message was underscored by the resounding silence from some normally talkative quarters. Even Republican House Majority Leader Tom DeLay had nothing to say. No major religious groups filed friend-of-the-court briefs defending the Texas law. The right-leaning Cato Institute wrote a brief in support of the gay petitioners. Ditto the Washington law firm White & Case, a lead pro-Bush firm in the 2000 Florida election debacle, which filed a brief on behalf of Log Cabin Republicans, a gay political group.
The flag-waving, liberal-flogging Bush administration itself declined to file a brief. White House spokesman Ari Fleischer couldn’t dodge questions about the ruling fast enough, pointing out that the president (who has openly gay people serving in his administration) had nothing to say during the case’s oral arguments either.
So it was left to Scalia to rage about opening the door to such abominations as gay marriage. Gay activists only hope that he’s right about that one.