OutRight

by Dale Carpenter

LONE STAR HATE

The state skirts the real reason for defending the antigay sodomy law

As a native Texan, I know good and well why Texas has an antigay sodomy law, the one now being challenged in the Supreme Court. It's not because the state wants to protect the grand traditions of our moral heritage passed down from millennia of human experience and teaching, as Texas now claims before the Supreme Court.

That's just window-dressing for the real reason. It's an attempt to make the law look respectable, to divert attention away from what is really going on in Texas and in other states that have antigay sodomy laws.

No, the real reason legislators keep these laws is simple: They just hate queers. They have a sodomy law criminalizing gay people to express that gut reaction. But passing laws to express hatred against a group of people is unconstitutional.

How do we know the Texas sodomy law is an expression of hatred? Here are five reasons we know statute is infected with unconstitutional "animus"-simple hatred for a group of people. (Disclosure: This discussion is based on a Supreme Court brief I helped write for the Republican Unity Coalition urging that the Texas law be held unconstitutional.)

First, sodomy laws historically prohibited anal (and later oral) sex for both heterosexual and homosexual couples. Traditional morality, which objected to all non-procreative sex, condemned sodomy for all persons regardless of the sex of their partners. No state had any objection to homosexual conduct as a category unto itself until 1969 when Kansas became the first state to adopt a law targeted solely at gays. The Texas anti-sodomy law itself applied to both heterosexual and homosexual sex until the law was changed in 1973 to target only gays.

Texas thus offers a novel moral regime whereby conduct once condemned is now acceptable, but only for the political majority, while the identical conduct is prohibited for the political minority. By taking the uniform historical prohibitions on sodomy and abolishing them for all but the small political minority of gay couples, Texas betrays an animus toward gay couples rather than a concern for preserving "traditional" morality.

Second, in the recent past, objections to homosexuality have been based on a variety of now-discredited harm-based concerns thought to justify repression. For example, those seeking to restrict or punish gays have variously asserted that homosexuality is a sickness, that it is chosen or changeable, and that it could be discouraged or stamped out by repressive laws. Gays also were tarred as child molesters.

These and other myths have been debunked. Indeed, even Texas no longer pretends that there is any material harm to homosexual conduct or that its law can alter the incidence of homosexuality, but instead asserts only a moral interest conveniently immune from empirical falsification. The collapse of excuse after excuse for discriminating against gays and the recent manufacture of a novel, selective, and non-falsifiable moral claim indicates a lingering animus likely born of the old substantive libels against gays.

Third, even as it targeted gay sex alone for the first time in 1973, Texas also legalized bestiality. A Texan may have sex in private with an animal or an opposite-sex partner he met 10 minutes ago, and the law will take no heed. But let a Texan have sex with even a committed same-sex human partner, and the criminal law cries foul. Whatever morality Texas purports to protect with that regime, it is not traditional sexual morality. The message sent by the patchwork of Texas sex laws is that gay citizens are less worthy of a life of physical intimacy than are animals and those who molest them. If that is not an expression of animus against a class of persons, nothing is.

Fourth, like other states, Texas rarely prosecutes people for actual violation of its sodomy law. This suggests the state has a minor concern at best with the conduct at issue. The primary practical use of the statute seems to be to justify discrimination against gays in unrelated contexts, like employment or marriage. The infrequency of the direct enforcement of the law against specific conduct combined with its invocation to deny gays equal treatment in areas unrelated to the prohibited conduct reflect animus toward gays as a class rather than a moral disapproval for specific sexual practices.

Fifth, the broad and harsh consequences of the law, combined with the fact that these consequences fall solely on gay people, suggest animus. The gay citizen, and the gay citizen alone, must forever forego a life of intimacy. However, if he disobeys the sodomy law, the gay citizen flouts the criminal code and must live with the knowledge and fear that, in the eyes of the state, he is but an as-yet-undiscovered criminal.

And, if convicted of disobeying the law, he then faces a daunting series of obstacles throughout his life. He must, for example, reveal his conviction on applications for public and private employment. Evidence of his criminal conviction may be used against him in a child-custody dispute. In some places he must register as a sex offender. The list goes on.

Sweeping and fundamental are the consequences of this law to gay persons. If it is not a tool to deny gays a life of physical affection with another human being, it is a sword hanging over our heads threatening us with discrimination in obtaining life's necessities. While morality has its place in law, hatred has none.

Writing from the conservative end of the political spectrum, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor. He can be reached at OutRight@aol.com.