Wired Mesh

Banning the Rock Hudson

Much weeping and rending of garmets from Christian conservative sorts today over the Heap Big Court's decision to overturn Texas' anti-sodomy law. But I'm going to go out on a limb here and say the court made the right choice for the wrong reasons.

Sandra Day O'Connor came awfully close to getting it right in her concurring opinion. She argued: "The statute at issue here makes sodomy a crime only if a person 'engages in deviate sexual intercourse with another individual of the same sex.' Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants."

In other words, the state of Texas is saying that if heterosexuals want to engage in an act that I will heretofore refer to as "the Rock Hudson," it's okey-dokey. But if gays want to do the Rock Hudson, that's illegal. And in O'Connor's estimate, that law violates the Equal Protection Clause. The issue isn't whether the state can legislate personal morality (or course it can) but whether that legislation is applied to everyone, or just to people you don't like.

But like I said, O'Connor was only half-right. Because it seems to me that a state could ban all sexual acts between people of the same sex, if that ban was based on some transcendent moral standard, such as Biblical injunctions. This would mean the same act indeed would be judged differently depending on who was involved in it, but that distiction would have a moral grounding other than personal distaste.

But if the state chooses to play by Biblical standards for sexual behavior, that means, at the very least, also banning any type of sex, Rock Hudson or otherwise, between anybody who isn't married. However, I suspect that level of consistency would make even a good many conservative Christians a bit nervous. So if even the most religious of lawmakers don't want the government prosecuting "fornication" and adultery, why should they push the government to prosecute homosexual acts? Either stick to a strict moral code, or let people do what they want. And personally, I'm inclined to let people outside the authority of the church do as they like, so long as their actions only affect themselves. That's why we live in America, not Iran.

This doesn't mean that I'm in favor of gay marriage, or any other attempts to "erode the traditional family." As O'Connor concluded: "That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage." The state can define marriage under traditional moral guidelines without prosecuting those who have sex without the sacred bonds. Heck, states have been ignoring heterosexual fooling around for centuries.

Sorry if this is way too much discussion of jurisprudence for a Friday night. I listen to a lot of NPR on the way home from work, and Michelle Norris has been yammering on about this for days now. I promise that tomorrow I will return to frivolity.