Last edited: February 14, 2005

Reply to Prof. Wildenthal’s Response to My Column, "When Democrats Do Bad Things"

By Dale Carpenter, July 7, 2000

I am sure Professor Wildenthal had somebody’s arguments in mind when he wrote his "Response" to my column entitled, "When Democrats Do Bad Things." But he wasn’t responding to my arguments. It’s clear that he — and his "many friends and family in Texas who supported" Richards — is a Richards partisan. I can certainly understand why he and other Richards devotees would want to minimize her role in preserving, and strengthening, Texas’ anti-gay sodomy law. But that shouldn’t keep the rest of us from dispassionately weighing Richards’ actual legacy.

As a native Texan who actually lived there during the sorry spectacle of Richards’ surrender on the sodomy law issue, I have to correct a few errors in his understanding of my original piece and in his understanding of the relevant history. Contrary to Wildenthal’s charge, I have never written that Richards actively supports the sodomy law. She may well oppose it on paper, as Wildenthal thinks. My point is that she did nothing practical to oppose it and in fact is partly responsible for its current existence in Texas law.

Professor Wildenthal is right that — as I pointed out in the original column — the current version of the Texas sodomy law was part of a comprehensive overhaul of the state criminal code. But he’s wrong that Richards did anything substantive to eliminate the Texas sodomy law.

When the original revision to the code that came out of committee omitted a sodomy law, at first no one noticed. Then an Austin newspaper reported the omission. Thereupon, social conservatives lobbied hard to have a sodomy law included. Richards, however, did nothing to lobby the legislature against its inclusion. As with President Clinton on the "Don’t Ask, Don’t Tell" gay military ban, Richards may have taken the right stand in theory ("opposing" the offensive law, as Clinton "opposed" the gay military ban) but she did nothing in practice to stand in the way of anti-gay political forces. Not only did she fail to lobby the legislature on the issue, she gave no public speeches urging that the sodomy law be eliminated. Thus, Richards, deservedly famous for her oratorical skill, was strangely silent when this most fundamental issue for gay civil rights and personal privacy arose.

It’s not enough for a politician to mouth the right things, such as opposition to a sodomy law. We need politicians who won’t go AWOL when we need them. On the sodomy law, Richards was manifestly and demonstrably AWOL.

After deserting us during the drafting process, Richards was confronted with a choice: either sign the comprehensive criminal code provision containing the sodomy law she "opposed" or veto it.

Professor Wildenthal acknowledges that Richards signed the law containing the criminal sodomy provision. Yet he thinks her veto would have been useless since the previous version of the sodomy law would have remained. Yet had Richards mustered the courage to veto the bill, the legislature would have likely re-drafted it to omit the provisions that theoretically offended her. That would have been politically risky for Richards, to be sure, but then that’s the kind of risk we ask of politicians who are supposedly our heroes.

More interestingly, Wildenthal concedes that Richards was motivated to sign the anti-gay sodomy bill because vetoing it "would have sacrificed many other unrelated progressive improvements in the code." This is the heart of the matter. Rarely have I seen a more candid confession that progressive politics takes precedence over gay civil rights for some of our "friendly" politicians. That act may or may not be justified in a given context, depending on what’s at stake, but at least we should acknowledge that’s what’s occurring. It’s a case where gay civil rights and personal privacy are sacrificed on liberalism’s altar. I’m glad Wildenthal agrees with that empirical observation.

With so little to say in defense of Richards, Professor Wildenthal attacks Governor Bush for supporting the sodomy law Richards signed. This is a common strategy in the defense of wayward Democrats: we can’t really defend "our" guys so we say the Republicans are worse. It’s similar to the strategy we’re seeing on the debate over the ban on gays in the military: Bush is now blamed for supporting the policy "compromise" ("Don’t Ask, Don’t Tell") the Clinton-Gore administration signed into law.

I, too, have been critical of Governor Bush’s verbal support for the sodomy law, as readers of the website well know (see "Governor Bush, Sodomy Law Defender"). (By the way, contrary to Wildenthal’s claim, I have not announced support for Bush’s presidential bid. In fact, in the above-mentioned column posted on this website, I explicitly stated that I would not support Bush as long as he publicly backs sodomy laws.)

Yet Wildenthal carries his condmenation of Bush too far. He notes that Bush is Texas’ "chief executive," implicitly suggesting that Bush might be able to halt the prosecution of two men in Houston for violating the law. But the Houston men are being prosecuted by the Harris County District Attorney’s office, over which Bush has no control. The case is on appeal (with the most recent court invalidating the state sodomy law), so it would be premature and unprecedented for Bush to try to "pardon" the men, as Wildenthal proposes. I’m unaware of instance in which Gov. Richards pardoned a sodomy law offender.

There is plenty of blame to go around for the existence of an anti-gay sodomy law in Texas. Much of it surely belongs on the Republicans and Democrats in the Democratic-controlled Texas legislature that passed the law back in 1993. Everyone agrees with that. But Richards has so far gotten a free pass on the issue. It’s time to stop making excuses for her passivity. Richards may have been a "great progressive governor," as Wildenthal believes, but let’s not pretend that her record on gay civil rights is nearly so great.

Dale Carpenter, Associate Professor, University of Minnesota Law School

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