Last edited: February 06, 2005

Playing Catch-Up on Gay Sex Ban

Boston Globe, June 29, 2003
Box 2378, Boston, MA 02107
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By Ellen Goodman

And so we bid farewell to the Texas Taliban as they ride into the legal sunset. The Supreme Court has finally put an end to a long line of theocrats and theojudges who told consenting adults what they could do to whom and with which body parts.

The case began when police burst into a Houston apartment on a false report that two men were fighting. When they found the men making love instead, they arrested, fined, and jailed the pair.

Thursday, a 6-3 majority ruled that the antisodomy law violated a homosexual’s right to privacy. In an eloquent opinion that spoke of dignity and enduring personal bonds, Justice Anthony Kennedy said, “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. ... The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

The decision was declared a landmark with cheers on one side and outrage on the other. Justice Antonin Scalia, reading his dissent aloud, fumed that “The court ... has largely signed on to the so-called homosexual agenda.”

But for all the hullabaloo, this case feels less like it’s breaking new ground than mopping up some old and tired terrain.

Back in 1960, every state in the union had a law against sodomy, whether it was between man and man or man and woman. Today only 13 states call it a crime and four of them are targeted solely to gays.

As recently as 1986, an earlier Supreme Court shamefully upheld antisodomy laws because, in Chief Justice Warren Burger’s words, homosexuality was “morally reprehensible” conduct, and that was reason enough to make it illegal. Justice Byron White added that there was “no connection between family, marriage, or procreation on the one hand and homosexual activity on the other ...”

But over the last decade, the cutting edge of the gay rights movement has moved toward matters of family and marriage. While gay couples in Texas remained partners in crime, gay couples in Vermont became partners in almost-marriage.

The latest census report lists 600,000 same-sex couples. The “love that dare not speak its name” now announces commitment ceremonies on the pages of the newspaper.

So here we are. The Supreme Court has just declared that homosexuals aren’t outlaws. But the New Jersey and Massachusetts courts are getting ready to decide if homosexuals can be husband and husband, wife and wife. Indeed, while our court has just decided gays shouldn’t be locked up, a Canadian court has declared they can get hitched up. For Gay Pride weekend, they’re planning to keep the Toronto City Hall open for business.

As gay rights lawyer Evan Wolfson put it, “The gay movement has moved from merely seeking to be left alone in our homes to wanting to participate fully in marriage and family under the protection of the law.”

In short, and not without irony, a movement that began in search of sexual freedom is now in pursuit of the bonds of matrimony. Those who want to get the government out of relationships now want the government to formalize their relationships.

In Justice Scalia’s scathing dissent, he says disapprovingly that the court’s argument leaves no justification left “for denying the benefits of marriage to homosexual couples.” I suspect he’s right.

He and others clearly regard the gay rights movement as a threat to marriage, a fear that was behind the Defense of Marriage Act passed in 1996 to limit marriage to heterosexuals. Gays don’t want to attack marriage, they want to join it. While many see this as radical, it is, at heart, profoundly socially conservative.

Same-sex couples now come to the courts and to the public eye largely as family members who want to adopt children or share pension benefits. The gay poster children aren’t libertines. They’re two Michaels who want to register at Crate and Barrel. They’re two mommies with one Baby Bjorn.

This conservatism may well have changed public images as well as the courts’ attitudes. Today, some 59 percent of college freshman approve of gay marriage.

The way things are going, homosexuals will win the equal right to enter into those long discussions that heterosexuals have come to know and dread. Where is this relationship going? Is this the person I want to spend my life with? For better or for worse? They’re going to enter the wonderful world of prenuptial agreements and nappies—and divorce.

With this court decision, gays are escaping the reach of the Taliban. They are now one step closer to the liberated day when their moms too will be asking, “So, when are you going to get married?”

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