Last edited: February 06, 2005

Our Liberties at Home

Tradition does not justify denying homosexuals their rights.

Philadelphia Inquirer, March 28, 2003
PO Box 8263, Philadelphia, PA 19101
Fax: 215-854-4483

By Jane Eisner

Enough about war. Let’s talk about sex.

Not my usual topic, true, since in my humble opinion, sex is a most private act—too casually discussed on television and written about in breathless supermarket magazines, but that’s not real life. In real life, it is a potentially beautiful act of intimacy, love, pleasure and commitment that is, frankly, no one else’s damn business.

But the U.S. Supreme Court on Wednesday talked about sex. The justices heard oral arguments in a challenge to Texas’ sodomy law, which makes it a crime for gay couples to engage in sexual acts that are legal for heterosexual couples and, in fact, even legal between humans and animals.

Seems that in Houston it’s safer to sleep with a horse than with someone of your own gender.

Here we are, with brave soldiers dying in the Iraqi desert to assert an American claim of freedom, while in the great state of Texas, the police can barge unannounced into a man’s apartment and turn him into a criminal for having consensual sex with another man.

And not only in Texas. Three other states—Kansas, Oklahoma and Missouri—also outlaw sodomy when the participants are homosexual. Meanwhile, nine other states still have broader sodomy laws, making it a crime to have sex that is not specifically for procreation.

Fortunately for infertile men, post-menopausal women and anyone who uses contraception, Pennsylvania and New Jersey repealed their sodomy laws decades ago. Their police are free to try to catch real criminals.

Is this what we want our government to do? Monitor who is having sex—when no minor is involved, when no coercion or violence is suspected?

These questions are not just rhetorical. They go to the very heart of the freedom, tolerance and respect that we must vigilantly support at home, especially now, when we are fighting for it on behalf of strangers overseas.

The Texas law is particularly galling because the arguments in its favor are so weak. (Many speculate that’s why the Supreme Court chose to hear the case, in which a decision is expected in late spring.)

The state argues that such laws are a tradition in Texas. Some tradition: The sodomy laws were amended just 30 years ago to decriminalize anal and oral sex (for heterosexuals) along with bestiality, and to direct the criminal code to focus only on gays.

In fact, this obsession with banning homosexual sex is a relatively new one in American history. The Founders never mentioned it. The word homosexual doesn’t creep into American speech until 1892.

Other social prohibitions that once were considered essential for maintaining social order now seem outdated—or worse. Consider the tradition of banning interracial marriage. Even a conservative justice such as Clarence Thomas must believe that some laws ought to be consigned to history. (He is, after all, a black man married to a white woman.)

The state argues morality, which also deserves scrutiny. Do we want a government barging down doors to uphold the morality code of some—but not all—of its citizens? The Bible does prohibit homosexual activity. The Bible also prohibits the consumption of certain meat and shellfish. Should the police enforce that rule, too?

Some claim that decriminalizing consensual homosexual sex will harm the institution of marriage, but that anxiety is grossly misplaced. Society absolutely has a stake in strengthening marriage, as a pillar of the social order and the very best way to raise children.

But two gay men in a Houston apartment aren’t hastening the decline of this venerable, important institution. It’s heterosexual men who father children out of wedlock with no thought to their support, women who brashly think they can go it alone and couples who don’t do the hard work of maintaining relationships. It’s a throw-away culture that values instant pleasure over long-term commitment.

“There is a long history of the state making moral judgments,” Supreme Court Justice Antonin Scalia tartly noted on Wednesday. Yes, but those judgments must be balanced by other state interests: the right to privacy, respect for individuals, tolerance, and the basic question of whether it is desirable or practical for the government to police behavior that offends some and harms no one.

Funny, I thought those were the values we were fighting elsewhere to uphold.

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