Our Liberties at Home
Tradition does not justify denying homosexuals their
Inquirer, March 28, 2003
PO Box 8263, Philadelphia, PA 19101
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anyone who uses contraception, Pennsylvania and New Jersey repealed their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
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
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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