Last edited: February 14, 2005

Sodomy and Other Crimes Against Nature

Gay Wired, December 17, 1998

By Stephen H. Miller

Imagine you’re enjoying a romantic evening at home with your paramour. Suddenly, your front door is slammed open and thugs crash their way into your bedroom. But wait, these "thugs" are wearing police uniforms and they’re here to arrest you for the criminal activity that you and your love mate are engaged in - so-called "sodomy."

This is not a fictional scenario. On September 17, police burst into a suburban apartment in Houston, Texas, and arrested two consenting adults - Tyrone Garner and John Geddes Lawrence. The men were charged with homosexual conduct and spent the night in jail. The cops were investigating a report of a disturbance involving armed men - a report that later turned out to be false, called in by a neighbor who appeared to have a grudge against gays. Garner and Lawrence were subsequently arraigned and pled no contest.

While the two men initially kept a low profile following the incident, their lawyers say they are now determined to apply for a criminal trial in order to challenge what they regard as an unfair and anachronistic statute.

Fourteen states and Puerto Rico still have sodomy laws that apply to both heterosexual and homosexual couples (outlawing what used to be termed "unnatural" intercourse, generally oral and anal copulation). Five states, including Texas, target only homosexual activity. Punishments for those convicted vary from fines (it’s $500 in Texas) to a theoretical maximum of 20 years in jail in Georgia or Virginia.

Of course, these laws are rarely enforced and there would be an uproar if a state court actually were to sentence a gay couple to 20 years imprisonment. However, because the laws remain on the books, they can be used to justify government discrimination against gays and lesbians in a host of areas. Courts in sodomy states routinely deny a gay or lesbian parent child custody or even visitation rights because he or she is openly engaging in criminal activity (that is, they are involved in a same-sex relationship). Ditto for approval of adoptions. Police departments have refused to hire lesbian and gay officers because they pursue a "lifestyle" that flouts the law.

And in Georgia, Robin Shahar’s offer of a staff attorney position in Georgia attorney general Michael Bower’s office was withdrawn when he learned of her upcoming commitment ceremony with her partner, Fran, and decided she would be perceived as unwilling to enforce the sodomy law. Bowers, or course, is the same attorney general who had successfully defended state sodomy statutes before the Supreme Court back in 1986.

But the effects are even broader, impeding a wider acceptance of gay people. How can the United States appoint an openly gay ambassador, say the anti-gay crusaders, when his domestic relationship is a violation of the law in 19 states of the union? How can we allow tolerance of homosexuality - a criminal activity - to be taught in schools? How can the U.S. armed forces be expected to admit openly gay service members when their private lives are illegal in many states where they’d be stationed (not to mention under the military’s own sodomy prohibition in its code of military conduct)? And how can states recognize gay marriage when the honeymoon would be felonious?

Earlier this year, after the American Civil Liberties Union filed a class-action lawsuit, a Maryland court threw out that state’s statute making homosexual oral sex a criminal act. One of the plaintiffs in this case had been arrested simply because he had agreed to go home with an undercover male officer. The man, a federal employee, subsequently had trouble obtaining a security clearance when he was promoted. In sodomy states, victims still fall prey to similar incidents of police entrapment. Arrests for merely agreeing to a solicitation to have same-sex relations, even if the sex is to be engaged in at home, can mean a criminal prosecution, fines, your name in the papers loss of a job, and untold personal trauma.

Let’s not forget the political implications. In Arizona, a legislative debate last February highlighted some of the fault lines among the two wings of the GOP regarding the government’s role in policing consensual behavior among consenting adults. State Rep. Winifred "Freddie" Hershberger, a Republican, led an unsuccessful attempt to get rid of that state’s prohibition on "the infamous crime against nature" - a state law interpreted as outlawing same-sex relations. "I’ve always said that government interference in personal life is wrong," she Hershberger. She was joined by another Republican, Rep. Barry Wong, who observed that "The broader philosophy is what is government’s role with regard to morality - and the government’s role in the bedroom." Those who call themselves conservatives, he added, should be consistent in their belief that the state shouldn’t be legislating these issues, "regardless of your views of these types of activities between adults."

That libertarian concept, however, didn’t sit well with two other GOP representatives in the state house, both of whom are backed by the religious right. Rep. Karen Johnson was unwilling to leave such issues to spiritual rather than legal guidance. "We legislate morality every day," she said. "It’s either my morality or somebody else’s." And Rep. Dan Schottel chimed in that the law was necessary to preserve "our morals and our ethics." Back in Texas, Harris County Republican Party Chairman Gary Polland last week said gay-rights groups would have a fight on their hands if they try to challenge the 119-year-old state law, saying, "We think it would definitely send a wrong message and signal a continuing deterioration of morals in our society."

Thirteen years ago, the Supreme Court upheld state sodomy laws in its infamous Bowers vs. Hardwick decision. That ruling, with a slim 5-4 majority, focused on Georgia’s statute prohibiting sodomy among both straight and gay couples (although Michael Hardwick and his partner were gay - the police don’t arrest consenting adult heterosexuals in the privacy of their bedrooms). Since the Texas statute applies only to same-sex couples, there may be an opening here for a reversal should the current case eventually make its way to the nation’s highest court. If it stays in the state court system, it might at least bring about the demise of the Texas statute. While a national victory would be reason to rejoice, if these battles must be fought state by state, so be it. But, for justice’s sake, fight we must.

Stephen H. Miller is a writer based in Washington, D.C.

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