THE BRIGHTEST MINDS of the religious right have spoken and that sound you hear is a collective intellectual thud. In 15 legal briefs filed in the Supreme Court recently, social-conservative groups supporting an anti-gay sodomy law rely on "facts" that are dubious and arguments that are anachronistic. Unable to come up with good reasons why the state should criminalize consensual sexual relations between two adults of the same sex, they've been reduced to scare-mongering about gay marriage.
The constitutional challenge arises in a case called Lawrence v. Texas, in which two men were arrested in a private home and convicted under a Texas law criminalizing oral and anal sex committed by same-sex couples, but not opposite-sex couples. A decision isn't expected until June, but the parties and their supporters have already filed their main briefs.
Texas' own brief, filed by the prosecuting county attorney's office, is relatively free of the anti-gay stereotypes and paranoia that mark its supporters' briefs. Texas argues primarily that its law is justified by states' traditional power to promote public morality, whatever the content of that morality. That's a contestable, but not necessarily anti-gay, legal basis for the law.
In brief after brief, the religious-conservative groups supporting the Texas law portray gay men as disease-ridden stalkers endangering public health. They obsess about the dangers of homosexual anal sex, including higher rates of sexually transmitted diseases among gay men (like HIV infections) than are seen among heterosexuals.
"Anal sodomy is an abusive act, i.e., a misuse of the organs involved," asserts the brief for the American Center for Law and Justice, as if it were 1955.
Several of the briefs, including the one filed by Concerned Women for America, rely on a recent Rolling Stone article about "bug-chasers," gay men who deliberately seek to become HIV-infected through unprotected anal sex. The fact that the article has been thoroughly discredited as inaccurate and sensationalized goes unmentioned.
A couple of the briefs, including one from a group of Christian physicians in Texas (upon whom the other briefs rely for evidence that gay sex poses a special health danger), even revive the specter of "gay bowel syndrome," a medical "diagnosis" last greeted without hilarity when bean-bag chairs were in vogue.
All this is said to offer a rational basis for Texas to criminalize homosexual sodomy but not heterosexual sodomy. There are three problems, aside from their exaggerated character, with using these sex-scare arguments to defend the Texas sodomy law.
One is that they deal only with the dangers supposedly presented by gay male sex. They largely ignore gay women. There is, for example, little evidence of HIV transmission between women. This is a serious omission in an argument supporting a statute that criminalizes both male-male and female-female sex.
A second flaw is that the public-health argument deals primarily with the supposedly elevated dangers of anal, not oral, sex. There is, for example, scant evidence of HIV transmission through oral sex. Yet both anal and oral are criminalized by the Texas law.
The third and most serious legal flaw with the public-health argument is that there is no evidence (and the briefs offer none) that sodomy laws in general, or the Texas law in particular, have any effect whatsoever on general STD or HIV transmission rates. One reason for this is that such laws - because they are almost never enforced - do not deter gay sex.
It's revealing that the brief for Texas, in defense of its own law, places no reliance on the public-health arguments of its supporters. Further, the state's brief admirably concedes that the law is unlikely to discourage gays from actually having sex. This undercuts the arguments of those supporting the state who contend the law is needed to prevent calamitous consequences.
For a law to be constitutional under even minimal standards, it must be (1) rationally related (2) to a legitimate state purpose. While protecting public health is a legitimate state purpose, there is no evidence that the Texas sodomy law bears any relationship (rational or otherwise) to that purpose.
Perhaps recognizing the weaknesses of these hysterical public-health arguments, the religious-conservative briefs warn the Court that the real danger of striking down sodomy laws is where it might lead.
Let consenting gay adults have sex in the privacy of their homes, they say, and the next thing you know we'll have legalized prostitution, adultery, necrophilia, bestiality, child pornography, incest, and pedophilia. (Texas law already allows adultery and bestiality, so strike those from the slippery slope.) Each of these is distinguishable from consensual same-sex sodomy between adults in terms of the actual harm they cause and/or a lack of true consent involved in the acts, but they aren't really the focus of social conservatives' concern.
The real fear, which dominates these briefs (though, again, conspicuously not the Texas brief itself), is that we're headed for same-sex marriage. According to one typical line of reasoning: "To accept the argument [against the Texas sodomy law] is to overthrow the legal institution of marriage as exclusively a union between one man and one woman."
Huh? Little explanation is given for this non sequitur; the briefs read almost like early draft arguments against an expected future challenge to the marriage laws, not a present challenge to sodomy laws. If I gave any of my first-year law students the task of writing an opinion holding sodomy laws unconstitutional but leaving marriage laws intact, I'm confident every one of them could do it.
The religious right is losing the cultural, political, and legal battle over gay equality. The increasing desperation of their arguments proves it.