The Law Is an Arse

Chris O'Carroll

I’m talkin’ queers, my friends. I’m talkin’ gay, and that starts with G, and that rhymes with P, and that stands for perversion. I’m talkin’ guys who do it with other guys. (Gals who do it with other gals are also walking on the verboten side of the street in Texas, and I don’t mean for them to feel left out here, but Lawrence and Garner v. Texas, the test case currently puffing moist, warm air up the robes of the Rehnquist Court, involves the sexual conduct of two men.)

I have to confess that I’m not entirely clear on how heterosexual marriage benefits from the criminalization of homosexual activity. Maybe there are only a certain number of orgasms to go around and those crazy gay party animals are hogging more than their fair share? But I do know that a Texas prosecutor, appearing last month before the nation’s highest court to present oral arguments against anal penetration, maintained that a law against sodomy forms a vital bulwark for the defense of marriage. Moreover, written filings in the case hold that the law violated by Lawrence and Garner represents “the reasoned judgment of the Texas Legislature” and “the collective good sense of the people of the State of Texas” united in their “effort to enforce public morality and promote family values.”

Ever since the Colonial era, the collective good sense of the American people has frequently expressed itself in efforts to enforce public morality by punishing those who deviate from a narrowly defined sexual norm. Horror of oral and anal sex is right up there with wife beating, slavery, and persecution of religious minorities as an American tradition whose pedigree dates back many years before the Revolution. (In fact, given Colonial America’s intimate relations with English common law, it can even be said to predate Jamestown and Plymouth Rock.) As recently as 1960, when the great Texan Lyndon Johnson was elected Vice President, all 50 states had laws against sodomy.

In the ensuing decades, however, that unanimity has evaporated. Texas finds itself today fighting a rearguard action on behalf of an increasingly discredited Taliban-style hostility to erotic freedom. Only 13 states now claim sovereignty over the sex organs of their citizens. Four - Kansas, Missouri, Oklahoma, and Texas - outlaw contact between the genitals of one person and mouth or anus of another person of the same sex. Nine more - Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia - prohibit such contact without regard to the gender (or marital status) of the persons involved. The Catholics of Louisiana, the Baptists of Mississippi, and the Mormons of Utah may have their differences of opinion about who’ll be getting into heaven, but they are evidently united in the belief that any French and Greek indulgence on the part of spouses or lovers is more outrageous than the state-sponsored keyhole-peeping necessary to enforce a law against such carryings on.

You probably used to think that “sodomy” was a synonym for “buggery,” that it referred only to anal intercourse. Well, I don’t really have any way of knowing what you used to think, but I used to think that, and I’d hate to believe that I’m the only ignoramus. The first time I heard the phrase “oral sodomy,” I thought I was listening to somebody who literally didn’t know his head from his ass. So I looked it up and learned that while all buggery is sodomy, not all sodomy is buggery. The S-word actually encompasses far more carnal outlawry than I’d been giving it credit for. Now that I know how many different forms sodomy can take, I worry that the citizens of Gomorrah, unable to boast of a single namesake sex act, must feel like dreadful underachievers.

Time was when sodomy laws in the United States were considerably less explicit than they are today, defining forbidden conduct with such phrases as “abominable and detestable crime against nature.” (I’m picturing George Bush and Dick Cheney caucusing secretly with oil industry cronies to plot an orgy of drilling in protected wilderness areas.) And while the language of the old law was fraught with nudge-nudge-wink-wink-know-what-I-mean vagueness, the stakes were a lot higher than they are today. If you got all abominable and detestable a few centuries ago, you could find yourself up on death penalty charges.

More recently, Texas law used to prescribe 5-15 years in prison for anyone who copulated with any “opening of the body, except sexual parts” or who brought his mouth into contact with said sexual parts “for the purpose of having carnal copulation.” (Talk about a loophole you could drive a lavender SUV through. All a guy would have to do would be to claim some other purpose - practicing for a rattlesnake bite emergency, say, or checking to see if it really tastes like chicken.) The state’s current statute, the one it wants the Supreme Court to uphold, defines homosexual conduct as a misdemeanor punishable by a fine of no more than $500, which is less severe than the penalty for marijuana possession. That’s right, as the law stands nowadays, smoking a bone in Texas is a less serious offense than smoking a bone. When Lawrence and Garner were busted for anal intercourse, their separate fines added up to less than $500, roughly what a straight guy might expect to pay for a legal romp with a Nevada prostitute, and a whole lot less than the state is spending to fight for its right to keep on hassling sodomites.

In its Lawrence and Garner v. Texas representations to the Supreme Court, the state lays great emphasis on the contrast between the draconian past and the lenient present, as if to say that the gay bashing of previous generations may have been a bit much, but today’s gay bashing lite is too trivial to raise constitutional concerns. Texas also points out that its sodomy law does not criminalize same-sex kissing, nor manual stimulation by gay lovers of one another’s genitals. Lordy, the state is practically Provincetown-on-the-Rio-Grande. Fags and dykes are free to make out and to give each other hand jobs; they enjoy all the rights of horny teenagers at the junior prom. You’re telling me they want more than that? Sounds like the talk-radio hyperventilators have been right all along - the gay agenda really is about demands for special privileges.

The most delightfully audacious claim that Texas advances in this case is the assertion that its law prohibiting “deviate sexual intercourse with another individual” does not discriminate against gay citizens since it prohibits anyone, gay or straight, from engaging in homosexual conduct. This recalls Anatole France’s famous observation, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

I am, as you have no doubt surmised, rooting for the Supremes to nail Texas in an opening of the body and for Lawrence and Garner to win their case. I do note with some disappointment, though, that neither man has as cool a name as this pivotal moment in sexual legal history would seem to require. In 1986, the last time the Supreme Court took up the issue of a state’s right to criminalize gay sex, the case involved a Georgia man named Hardwick, surely the most apropos appellation to appear on the court’s docket since Loving v. Virginia in 1967, the case that led to the invalidation of laws against interracial marriage. Hardwick had been arrested for oral sex, which at that time under Peach State law carried a maximum penalty of 20 years in prison. It was perfectly OK for your wick to get hard in Georgia, but you were in big trouble if it got wet.

The gay arrestee’s fabulously felicitous name, combined with his state’s fruity nickname and the potential for wry, Prufrockian “Do I dare to eat a peach?” jokes made Bowers v. Hardwick the case that had everything. Everything, sadly, except victory for the right side. In an embarrassingly coarse and idiotic opinion - one informed more by culture-war huffing and puffing than by respectable legal reasoning - Byron White wrote for a 5-4 majority that the Constitution protects no “fundamental right to engage in homosexual sodomy.”

Harry Blackmun, writing for the four dissenting Justices, dismissed that formulation as an exercise in deliberate obtuseness. The true issue, he said, was that Georgia’s sodomy law “interferes with constitutionally protected interests in privacy and freedom of intimate association.” He reminded the court of the Constitution’s implicit “promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.” And he enunciated the principle that “depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do.”

To the Bowers v. Hardwick majority (whose opinion is still the law of the land, though I see a strong likelihood that Lawrence and Garner v. Texas will finally undo its error and injustice) the sacrifice of those deeply rooted values and constitutionally protected privacy interests was a price they were happy to pay in order to establish the legal doctrine that queers are yucky. The homophobia underlying the opinion is evident not only in its chanting of the “homosexual sodomy” mantra, but also in its explicit statement that the opinion was not addressing the issue of a state’s right to enforce sodomy prohibitions against heterosexual couples.

Georgia is one of many states that have done away with their sodomy laws in the years since Bowers v. Hardwick. Some have done so by legislative enactment, others by court rulings based on privacy protections in state constitutions. Those states that have failed to do so would find at best shaky support in the 1986 decision if they were to bust a straight couple for oral or anal sex. But the four states that set their sights exclusively on gay sex have, for the time being, the blessing of the federal bench. If William Rehnquist, Sandra Day O’Connor, and Antonin Scalia were to find themselves in a hotel suite in Texas (or in Kansas, Missouri, or Oklahoma), and if the two Associate Justices were to seize the opportunity to salute their Chief with a blow job, O’Connor could walk away from the incident scot-free, but Rehnquist and Scalia could be handcuffed and hauled into court. That doesn’t look like equal justice to me, and that’s why I want to see the 1986 ruling overturned. A decision in Lawrence and Garner v. Texas is due before the end of the summer.

Chris O'Carroll