We are indebted to Peter Sprigg of the Family Research Council and Bryan Fischer of the American Family Association - not to mention David Bahati, sponsor of Uganda's Anti-gay bill - for returning us to a debate that should have been put out of its misery in 2003: Should homosexual conduct be against the law?
Lawrence v. Texas answered the question for constitutional purposes. The government has no legitimate business making particular sexual acts a criminal offense if they are voluntary, adult and in private.
But the constitution isn't everything. For centuries, criminal prohibitions provided the foundation for official (i.e. legal and governmental) discrimination against homosexuals. The premises about homosexuality in those laws are what most older people, in particular, take for granted. We may no longer be criminals under the law, but in some people's minds we are certainly doing something that is wrong.
The unambiguous desire of Sprigg/Fischer/Bahati to reestablish a legal regime where homosexual conduct is criminal lets us look at the issue from today's entirely new perspective: Why is some sexual conduct between consenting adults in private wrong. By "wrong" I do not mean "a sin," since I am talking about the law here, not theology. Religious adherents are free to believe, among themselves, what their religion teaches about sin, whether it's murder or adultery or dancing. There is much overlap between criminal laws and theological transgressions, but the two realms are not identical. Criminal laws in a pluralistic society of varied religious beliefs have to have justifications beyond sinfulness, since there is inconsistency between, and even within religions, and since many people belong to no formalized religion at all, a choice the constitution requires all of us to respect.
Sprigg distinguishes between homosexual conduct and homosexual orientation. Homosexual conduct is bad, but mere orientation is no problem. Ironically, this is a distinction gay rights supporters have drawn as well, when it has been advantageous. But it doesn't answer any questions.
Justice Scalia illustrates the problem in his dissent in Lawrence: "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home."
Look how casually the thinking here moves from the notion of homosexual conduct as sex to homosexual conduct as - well, as being gay. It's safe to assume, I'd think, that few, if any of those business partners, scoutmasters, teachers or room-renters would be observing any sexual activity by these particular homosexuals (though the last category comes very close, which is why it is given universal exemption in housing discrimination laws). In the quote, it's not even necessary that any of those people have a partner at all. The homosexual conduct Justice Scalia is concerned about people so "openly" engaging in is living their lives without hiding their sexual orientation. Simply being gay, the way heterosexuals are straight, is to "openly engage in homosexual conduct."
The closest to "openly" engaging in conduct that could be considered sexual is when homosexuals kiss or hold hands while walking down the street. That's openly being gay, but it's not different (in the view of the people Scalia is worried about) from sodomizing your partner right there at the corner of Pico and Sepulveda.
There is no such concern about heterosexual kissing or hand-holding. More to the point, no sodomy law ever prohibited such acts. So why the difference for gays?
That difference is everything. In general, most people don't spend a lot of time imagining the sex lives of others; or when they do, it's considered impolite if not outright rude. Yet speculation like this is taken for granted when homosexuals are the subject.
It is that permissive speculation about sexual conduct that brings the bedroom right out into the open, and makes gays ripe for this kind of condemnation. It reaches its zenith of absurdity in DADT. DADT strays so far from a requirement of actual conduct that simply speaking about being gay is sufficient to have a servicemember ejected. The theory is that this shows a "propensity" to engage in homosexual conduct, and therefore a mere statement gives the military sufficient evidence of someone's unfitness.
Yet heterosexuals have a propensity to engage in heterosexual conduct - and "propensity" may be understating it for many of them. Some of their conduct will be the same kind of sodomy as homosexuals might engage in - specifically oral or anal sex. Yet for heterosexuals, we don't (as the kids say) go there.
The debate about sexual conduct is not about sexual conduct at all, but about being openly gay. It is that honesty which is objectionable. Even Peter Sprigg acknowledges that some people have a homosexual orientation. The criminal law has as little effect on that as it could have on preventing the tide from coming in. All it can do is prevent people from being honest - or, in Justice Scalia's words, of "openly" engaging in what he calls "conduct." But as we see in the debate over DADT, when honesty is a problem the law is trying to solve, there is something deeply wrong with our priorities.
11 Comments for “Doing Gay/Being Gay (Part I)”
posted by Jorge on
It is a very bitter thing.
posted by Amicus on
What never ceases to amaze is that homosex for homosexuals, which is for whom it makes sense, isn’t just a “wrong” or a “sin”, it’s that so many find it’s the worst-of-the-worst, the lowest possible rung, the ultimate abdication of restraint, the seventh seal. The recently disgraced Irish politico Iris Robinson was on record saying that it was worse than child molestation.
Two guys or girls kiss, and it is like the shot heard ’round the world.
I’ve never been fighting for the right of anyone to do anything, but rather for a small minority of people who truly find that it is their nature to have same-sex emotional and sexual attraction.
I think we can draw the line there, especially if a conservative wing would get on board with that as their new, abject pronouncement. Mother Church and many adherents disagree, so they become a self-fulfilling prophecy, in a way, rather than shaping a newer, more just world.
posted by Tom on
David: “But as we see in the debate over DADT, when honesty is a problem the law is trying to solve, there is something deeply wrong with our priorities.”
I’ve read this post three or four times, and let it sit in my head.
This statement baffles me. What is wrong with our priorities in this context?
Anyone who has been on the ground in this struggle, talking to social conservatives without the media savvy of folks like Maggie, knows that the far right social social conservatives want us in deep cover, and that’s what their agenda is all about. As the minister of one of our so-called “Bible” churches told me after a forum on Wisconsin’s anti-marriage amendment in 2006, “I don’t want my kids to know you exist …”
You want to expand on what it is about our priorities that is “deeply wrong” so your point it is a bit clearer?
posted by Throbert McGee on
David: “But as we see in the debate over DADT, when honesty is a problem the law is trying to solve, there is something deeply wrong with our priorities.”
I’m fairly sure that the logical antecedent of “our” in this case is supposed to be “America’s”, not “the Gay Community’s”.
But when writers get into the bad habit of overusing the 1st-person plural forms “we/us/our(s)”, either out of politeness or as a weasel word, this kind of confusion tends result.
posted by Tom on
Throbert: I’m fairly sure that the logical antecedent of “our” in this case is supposed to be “America’s”, not “the Gay Community’s”.
I guess that’s probably right in terms of what David meant, but I think that the correct antecedent is “social conservative’s”.
The American people are, as a general rule, a decent people who, within the limits of cultural filters, are honest.
Social conservatives, on the other hand, and particularly far-right Christian conservatives, have made deception the norm, dishonesty a virtue.
I think that the American people see right through the deception when it comes to DADT — after all, a significant majority think that it is time for DADT to go.
I think that’s why, despite the loud and angry outbursts of head cases like Peter Sprigg and Peter LaBarbera, we’ve heard little reaction from Republican politicians, and, with the exception of McCain’s petulance, what reaction we’ve heard has been confused and uncertain, like Hatch’s little dance.
While it can’t be fun to be a politician caught between a rock and a hard place — a choice between taking a position in opposition to the military and the American people, on the on hand, or in opposition to the “base”, on the other — I can’t say I’m sorry for McCain, Hatch and the rest of them.
The Republicans have been cynically manipulating fear and loathing to their political advantage for years, and I’m not sorry to see it coming back to bite them in the ass.
posted by Debrah on
“The Republicans have been cynically manipulating fear and loathing to their political advantage for years…..”
***********************************
Please, Tom.
Don’t characterize that particular method as being a feature of the Republican and conservative realm, solely.
Because you know much better than that.
posted by Lori Heine on
“Social conservatives, on the other hand, and particularly far-right Christian conservatives, have made deception the norm, dishonesty a virtue.”
How about SOME social conservatives, or even SOME far-right Christian conservatives? How many of these people do you actually know?
I think a fresh wind is blowing in this country — that people are tired of BOTH sides’ attempts to manipulate them. I regard this as a good thing.
The Keith-and-Rachel gang try to claim that America is tired of right-wing craziness. They are only half right. An increasing number of Americans are tired of craziness, period.
They don’t care which side it comes from. They are tired of listening to it, and they want it gone.
There are good people on both sides of the divide. There are those in each camp who are amenable to reason. I’m as tired of liberals trying to push my buttons as I am of conservatives who do the same thing.
The only way out of the madness is to refuse to buy into it. No matter where it comes from.
posted by Craig2 on
Let’s put it another way. What was good enough for Anita Bryant and Florida in the late seventies is equally applicable to Yoweri Museveni’s Ugandan regime in 2010. Sanctions and boycotts.
Craig2
Wellington, NZ
posted by Grant on
Lori, again, hits the nail on the head.
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