EARLY IN MAY, Judge Jonathan Heher of the Johannesburg High Court struck down South Africa's sodomy law on the grounds that it violated the nation's new constitution barring discrimination on the basis of sexual orientation.
Just a few months earlier Ecuador's Supreme Court ruled that nation's sodomy law unconstitutional. And Romania's new prime minister recently promised to repeal his nation's sodomy law so it could join the European Union.
In the civilized nations of the world there are few sodomy laws remaining. Mostly they linger in ignorant and savage nations of the third world, where religious faith inhibits rationality, provincialism is praised as patriotism, and fanaticism is proof of piety.
As South Africa's judge Heher noted with unusual eloquence in his ruling, to penalize a gay or lesbian person "for the expression of his or her sexuality can only be defended from a standpoint which depends on the baneful influences of religious intolerance, ignorance, superstition, bigotry, fear of what is different from or alien to everyday experience and the millstone of history."
Among the developed nations of the world only the United States of America still retains sodomy laws-in 20 of its 50 states.
Half of those states are in the heavily Baptist, former slave-owning Confederate South. If the Old South is no longer a "solid south" for racist Democrats, it is, at least, still largely solid in its legislated homophobia.
The other states are the western strip of Arizona, heavily Mormon Utah and Idaho; the traditionally Catholic states of Massachusetts, Rhode Island, and Maryland; Lutheran dominated Minnesota; and the conservative midwestern cluster of Missouri, Kansas and Oklahoma.
These sodomy laws are seldom enforced. They do not appear to impinge on the lives of most gays and do not seem worrisome to most gay-friendly legislators. That would help explain the remarkable anomaly that three states with gay non-discrimination laws still have sodomy statutes: Minnesota, Massachusetts and Rhode Island. And the only states to have reelected openly gay congressmen by large margins are both states with sodomy laws: Massachusetts and Arizona.
However, anti-gay politicians who, like pro-gay politicians, seem content with non-enforcement of sodomy laws nonetheless fight vigorously to retain them.
This is extremely odd because no one claims that the laws actually reduce the incidence of sodomy. In fact, in arguing before the Montana Supreme Court, the the state's attorney general tried to make it an argument for retaining the sodomy law that no one had been arrested under it for decades.
But why then retain them?
When George W. Bush was running for governor of Texas he was asked whether he favored retention of Texas' sodomy law (currently in legal limbo). He said, yes, he thought the state should keep the law, chiefly for its symbolic value.
A symbol of what? A symbol, I think, of social disapproval. A symbol that society regards gay sexuality as defective, inferior and distasteful, tolerates it only contingently, and reserves the theoretical right to prohibit gay sexual expression because it is something we have no natural right to do.
It is a symbol that not only our pleasures, but our deepest relational commitments are shallower and less deserving of respect than those of heterosexuals, and, in short, that we are simply inferior human beings, not to be accorded the full autonomy, dignity or esteem granted to other citizens.
It follows from this that sodomy laws not only express social disapproval and lesser regard for gays, but they also serve the conservative function of reinforcing existing social disapproval and giving it a stamp of legitimacy.
One has to wonder why some bright young reporter did not speak up to ask the young Bush, "Do you mean to suggest, sir, that in your view the superiority of heterosexuality is not sufficiently evident to the public without the support of such legal symbols?
"And, sir, a follow-up question if I may? If the social superiority of heterosexuality is not readily evident to people, then wherein does its non-evident superiority lie?"
But heterosexual reporters probably did not think to ask the question, and gay reporters likely were too far in the closet to feel comfortable asking it.
Bush's statement, however, suggests he believes it is legitimate to devalue some people in order to bolster some other group of people. This is an odd claim to make in a country dedicated to either liberty or equality, though it may have a certain intelligibility in the Confederate South.
But apart from the devaluing function of sodomy laws, there are also substantive "collateral harms" that sodomy laws create.
They are used to label gays and lesbians as known law-violators and thus create evidence of unfit character for responsible positions such as custodial parent, foster parents, teachers and the like.
Sodomy laws create opportunities for police abuse. They can invite corruption (bribery, extortion), entrapment of gays, and selective law enforcement. It is important to remember, too, that the police absorb their attitudes toward gays from the way the law categorizes them. If the law states that gays are felons, the police will tend to treat known gays with less civility.
Rhode Island prosecutors acknowledged that the state's sodomy law was useful because it enabled juries to convict on the lesser sodomy charge in cases of alleged sexual assault involving sodomy where consent was uncertain. But that seems to be an argument against sodomy laws. If oral or anal sex is not wrong, then why should people engaging in anal or (chiefly) oral sex where consent is uncertain be convicted of something while those engaging in vaginal sex with uncertain consent not be?
By devaluing gay lives, sodomy laws also subtly encourage and legitimize young male vigilantes who assault, rob or even kill gays. On this ground, one could argue that legislators who support sodomy law are accessories before the fact in gay-bashing incidents.
Despite their offensiveness, sodomy laws remain on the law books in many states because local gay activists have not made repealing them a priority. But for all these reasons, repeal should be a higher priority.
One of the best arguments for the marches on the 50 state capitols in 1999 is that they will provide an occasion to demand the right to sexual privacy and the repeal of state sodomy laws.
Sodomy laws anywhere in this nation are a offensive reminder to all of us that legislators think that our lives are defective and less worthy of respect.