Gov. Bush, Sodomy-Law Defender

THE MURKY MUCK OF compassionate conservatism is clearing up, and the emerging picture isn't always pretty. Texas Gov. George W. Bush's public statements so far in support of criminalizing gay sex, for example, reveal that his views aren't very compassionate. They're not really conservative, either.

The statements are all the more important as a signal about Bush's attitude toward gays because, although numerous states still have laws that forbid sodomy, only a handful aim solely at gay sex the way the Texas law does.

To be fair to Bush, he inherited his state's anti-gay sodomy law. Although it's been around for decades in one form or another, the current version was adopted by a Democratic state legislature in 1993 as part of a comprehensive overhaul of the state penal code. Then it was signed by a Democratic governor, the sainted Ann Richards, who opposed the measure but did almost nothing to stop it. Still, Bush cannot escape the consequences of what he is saying about it now - and neither can we.

Those who support anti-gay sodomy laws come two ways: hard and soft. The hard-on-sodomy position holds that gay sex should be illegal and those who practice it should be thrown in jail. The hard-liners are fully prepared to have the cops barge into your bedroom, arrest you, and haul you away to make license plates. It doesn't bother them that full implementation of their vision of a moral society would assault the traditional conservative principle of limited government. Rigorous enforcement of anti-gay sodomy laws would require the erection of a police state.

Bush is more flaccid when it comes to sodomy. He has promised to veto any attempt to repeal the Texas sodomy law, which he defends as "a symbolic gesture of traditional values."

Yet Bush has never called for actual enforcement of the law. Thousands of gay Texans violate it every night with little fear that a Bush-inspired Gestapo will kick down their doors. Although last year Houston police did arrest two men having sex in a private home, the incident was so bizarre that it was the exception that proves the rule of non-enforcement.

Implicit in Bush's endorsement of the sodomy law as a mere "symbol" and "gesture" is the idea that it should not be enforced. This soft defense is disingenuous. It says to the religious right, "I share your values." It then winks at everyone else and whispers, "But I don't really mean it." It's the kind of politics that promises something with its fingers crossed behind its back. Is this compassionate conservatism in action?

It is certainly not compassionate. Just what "symbolic gesture" does an anti-gay sodomy law make? It is a signal sent from one segment of the population to another and is clear as can be: You are so dirty and disgusting that even your most intimate, loving moments are a stench in our nostrils. It is a form of caste politics.

If you publicly denounce someone as a criminal, the compassionate act is then to jail him to protect him from the mob you've aroused.

But Bush's position is not conservative, either. The father of modern political conservatism, the 18th-century British statesman and political philosopher Edmund Burke, would be aghast at Bush's support for a criminal law he is not prepared to enforce.

"A penal law not ordinarily put in execution seems to me to be a very absurd and a very dangerous thing," Burke argued during a passionate speech urging tolerance for religious minorities. He reasoned that if the law at issue punishes a genuine evil it would be irresponsible not to administer it.

However, if its object is not the suppression of some real wrong, "then you ought not to hold even a terror to those whom you ought certainly not to punish." If it is not right to enforce the law against an offender, Burke argued, then "it is neither right nor wise to menace" him with it. "Take them which way you will," he said of unenforced criminal laws, "they are pressed with ugly alternatives."

A real conservative in the Burke mold would either have the courage of his convictions and enforce the law or drop the matter. The existence of sodomy laws as a middle-finger gesture from the traditional-values majority to gay citizens proves Burke's insight that unenforced criminal laws are a menace and a terror to those they target.

What issues politely from the mouth of a politician may finish crudely on a Wyoming plain. If Bush wants symbols, let him ponder Matthew Shepard on his fence. There's the anti-gay symbol of this era.

Shepard didn't get to that spot by accident. He got there because two boys grew up in a culture that judged gays symbolic criminals; because, as young men, they learned it was their place to execute that judgment, even if the law was unwilling to do so; and they learned that in part because - rather than standing up for real decency, the kind that encourages citizens in a diverse and free society to live side-by-side in peace - influential people like George W. Bush indulge a fake and pretentious decency, the kind that plays at moral judgments it no longer believes in.

I may side with Bush on everything from taxes to China, but as long as he thinks I'm an outlaw in my own land, he won't get this Republican's vote.

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