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.