Last edited: January 03, 2005

A War That Should End

Washington Post, March 15, 2003
1150 15th Street NW, Washington, DC 20071

By Ellen Goodman

BOSTON—Funny how the culture wars seem to diminish in the face of a real war. With all the talk of international liberty, we may even have a moment or two to think about civil liberty.

On March 26 the Supreme Court is getting another chance to root out one of our own Taliban moments.

The story the justices will hear began in Texas in September 1998 when someone dropped a dime on John Lawrence and Tyron Garner. That someone told the Houston police there was an armed man in their apartment building “going crazy.”

When the cops broke into Lawrence’s apartment, they found him and Garner engaged in sex, not violence. Nevertheless, they were arrested, jailed for 24 hours and fined $200 each under a law that bans oral and anal sex between homosexuals.

Later on, constitutional scholar Larry Tribe said, “The key question is not what were Lawrence and his partner doing in that bedroom but what was Texas doing there.” But, of course, we know what Texas was doing. The same thing most states once did.

There’s a long history of laws written to regulate who did what to whom with which body part. Sex for recreation, not procreation—a crime against nature—was not just morally suspect but often criminal. Sodomy, fornication and adultery warranted the death penalty in some parts of colonial New England under theocracies that now remind us of fundamentalist Islamic rule.

Indeed it wasn’t until the last half-century that the laws between consenting adults began to collapse. The Supreme Court didn’t end the ban on interracial marriage until 1967. It began to define and defend a right to privacy in the bedroom in 1965, when it struck down the laws banning contraception in Connecticut.

The laws against gay sex were the most tenacious. In 1986, when there were still 24 states with laws against sodomy, the Supreme Court upheld a Georgia law in an opinion full of scorn for gay rights. The right to privacy, wrote the majority, didn’t apply to “morally reprehensible” conduct that had nothing to do with “family, marriage or procreation.”

As gay-rights lawyer Evan Wolfson says of that case: “The opinion dripped with contempt. It said that moral disapproval is a good enough reason to make something criminal.”

Since then there’s been an enormous change in laws and attitudes. Another Supreme Court in a different case ruled that moral disapproval was not enough for government action. In the past half-dozen years, many states have overturned anti-sodomy laws. Only 13 states have laws against anal and oral sex, and only four of those states—Texas, Kansas, Missouri and Oklahoma—target them to gays only.

Meanwhile, the gay legal movement has moved from the bedroom to the family room. This month, a gay couple—a lawyer and a real estate broker—who have been raising two abandoned boys challenged in a federal appeals court Florida’s ban on adoption by gays. In the same week, the Massachusetts high court heard a challenge by seven gay couples to the state’s ban on gay marriage.

After Hawaii and the civil union decision in Vermont, we’ve gotten used to seeing gay men and women coming to court as family members, not just sex partners. As Wolfson notes, “The center continues to move in our direction.” Last fall, 59 percent of college freshmen surveyed supported the freedom of gays to marry.

This doesn’t mean that the opposition has faded away. For every same-sex marriage victory, there’s a backlash referendum. The ban on gay adoptions in Florida was challenged, but another was introduced in the legislature in Iowa.

But in many ways, the case coming before the Supreme Court feels less like a trailblazer than a mop-up action. “The idea that the state has the authority to police bedrooms and tell people which body parts they can touch is shockingly cruel and embarrassing,” says Wolfson. Beyond that, it has real-life consequences.

The Texas misdemeanor not only disqualified John Lawrence and Tyron Garner from being employed in more than a dozen professions, but it would require them to register as sex offenders in at least four states. It’s been used against public employment of gays and in custody disputes.

Now at last the Supreme Court is being asked to close an old and unseemly chapter in our history. This could be the last battle against all those who defined sex between consensual adults as a crime. Maybe at last we can stop making war on making love.

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