OutRight

by Dale Carpenter

COURT REPORT

The sodomy-case arguments illustrated major changes since the High Court last considered the issue

War and anachronism were everywhere. Consider the very room in which the oral argument occurred. You look up and see a marble Greek-inspired bas-relief featuring two large men seated beside one another. Draped in robes covering their privates, they are nearly naked from the waist up, revealing six-pack abs, chiseled pecs, and bulging biceps. To either side of them stand young, lithe, and even more scantily clad man servants. The young men’s athletic bodies face forward, but their heads are turned to gaze at groups of semi-nude, well-built, sword-bearing men, who stare back at them. It drips homoeroticism and bellicosity.

Beneath this tableau, on March 26, 2003, the Supreme Court of the United States considered the constitutional fate of a law banning gay sodomy.

The case before the Court pits two men against Texas. The police arrested them for intimacies in a bedroom, which violates a state law criminalizing “deviate sexual intercourse” (oral or anal sex), but only if it occurs between two people of the same sex. The law, one of only four such state laws left, is itself an anachronism: a novel enactment barely 30 years old defended as having “ancient roots.”

Much of the gay legal establishment was there for the oral argument, as was much of the antigay legal establishment. But it was clear to these eyes and ears that gay sympathizers dominated the limited public seating.

Lambda Legal, representing the Texas men, made two arguments. First, it contended gay Americans should have the same constitutionally protected right to privacy other Americans enjoy. Second, it argued that if the state insists on having an obnoxious law, it must at least apply it to everyone.

Against this, Texas argued only that it has the power to legislate morality, whatever that may entail. Texas did not argue its sodomy law prevents any tangible harm, marginalizing the “public-health” phantasms of its supporters.

The Court treated the proceedings far more seriously than it did when it last considered a challenge to sodomy laws in 1986, a cultural epoch ago, when it labeled the challenge “facetious.” As a friend of mine put it, a “hip gay air” filled the chambers that 17 years ago were sealed from the reality of gay life. This time it was the anti-sodomites who risked looking facetious.

Justice Breyer was an attack dog, alternately sparring with Justice Scalia and reciting nursery rhymes to the county district attorney defending Texas. When the Texas DA offered the state’s public-morality rationale—an argument that once would have paralyzed all comers—Breyer dismissed it as reminiscent of a line from the 17th-century satirist Tom Brown about a despised dean: “I do not like thee, Dr. Fell /The reason why, I cannot tell.”

Seventeenth-century satire was throwing shade on 16th-century morality in a 21st-century courtroom.

Scalia was skeptical of the men’s constitutional claim. That’s not surprising, since seven years ago he had written that the court has no business entering a kulturkampf, a culture war, over homosexuality. If sodomy is a right, he asked, why not flagpole-sitting? (Dr. Freud, call your office.) And anyway, how is this law different from laws against bigamy and adultery, which also reflect moral views?

Paul Smith, adroitly arguing the case for Lambda, responded that prohibitions on bigamy and adultery protect marriage, an institution the state sanctions for important purposes. Here was Smith, an openly gay man, rationalizing laws that safeguard marriage, an institution he cannot enter, under questions from a champion of tradition.

Back to the nursery. Chief Justice Rehnquist asked whether the state could prefer heterosexuals to homosexuals as kindergarten teachers. Smith responded that to do so the state must have some reason other than simply disliking gays.

Scalia, not once lapsing into German, submitted that such a law might keep children from being led into homosexuality by their teacher. In another era, that old warhorse of an argument might have held the fort. Now it met only rolled eyes in the courtroom, followed by . . . derisive laughter. Firing the longbow of antigay canard against a laser shield of learning, Scalia looks increasingly like an antediluvian soldier in a passé kulturkampf that’s nearing an armistice.

Justice Thomas was characteristically quiet, listening intently and looking up at the ceiling from time to time, as though deep in thought. Widely considered a sure vote to uphold the Texas law, Thomas might just see the literally unjustified discrimination here.

Justices O’Connor and Kennedy, moderate conservatives, said nothing that gave away their views. O’Connor did ask Smith whether the court would have to strike down sodomy laws that applied equally to heterosexuals and homosexuals (answer: no), which might suggest she is leaning toward a narrow rationale striking down the Texas law. But this is reading tealeaves.

The outgunned Texas DA closed his argument by warning, apropos of nothing, that there are people out there trying to lower the age of consent.

Afterward, the media converged outside the Court to interview interested parties. A spokesperson for a religious-conservative group opened his prepared statement thusly: “If the U.S. is to win the war in Iraq, the court must uphold sodomy laws.” At last, the missing link in the law’s defense!

The case actually tests a different proposition: that the country our soldiers will come home to is one where the promises of liberty and equality truly apply to all. Unless those principles are themselves anachronisms, fading ink on tattered parchment in an age of word processors, they must live today.

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.

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