Making A Moral Case For Gay Rights

3 April 2003

By Stentor Danielson

Gay rights advocates are understandably excited about a case now before the Supreme Court challenging Texas's anti-sodomy law. While the court upheld the constitutionality of anti-sodomy laws in the 1987 case of Bowers v. Hardwick, they hope (and many "defense of marriage" partisans fear) that the particulars of the Texas case and the changing attitudes of American society toward homosexuality will create an opportunity to reverse the precedent.

Houston residents John Lawrence and Tyron Gardner spent a night in jail and were fined $200 after police -- responding to a false complaint from a neighbor that there was someone "going crazy" in the house -- found them having sex. The men pled no contest, as they were caught red-handed doing something that is quite explicitly illegal under Texas law. But they went on to challenge their convictions on the grounds that the anti-sodomy law is invalid.

The case against the anti-sodomy law rests on two claims. The major claim is that anti-sodomy laws violate the right to privacy. This claim is built on court precedent legalizing such practices as contraceptives and abortion. Nevertheless, this claim is potentially a weak one because the right to privacy is only implicit in the Constitution, so it can be more easily bent by the winds of homophobia or claims that the state has an interest in preventing homosexual acts.

The appeal also gives the court an out that would allow it to strike down Texas' anti-sodomy law without endorsing a right to gay sex: the court could rule that Texas' law violates the principle of equal protection because it only outlaws homosexual sodomy. This line of thought led to one of the more bitterly amusing moments of the case thus far. A lawyer for Texas argued that the law did not violate equal protection because gays are allowed to have heterosexual sex.

I imagine that most people reading this already agree with me that the anti-sodomy law (and by extension the remaining similar laws in other states) ought to be struck down with no hesitation on the grounds outlined above. It is important to remember, however, that such libertarian legal arguments -- "sex is none of the government's business" -- are not always persuasive when an issue with the visceral weight of homosexuality comes up.

Consider Chief Justice Warren Burger's comments in support of the Bowers decision (as quoted in The New Republic by Andrew Sullivan): "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in JudaeoChristian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law ... [Eighteenth century English legal scholar Sir William] Blackstone described the 'infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act, 'the very mention of which is a disgrace to human nature' and 'a crime not fit to be named.' ... To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

Burger's position is clear: morality trumps legality. His deep aversion to accepting homosexuality overwhelms standard judicial practice of judging laws by their adherence to the Constitution and legal precedent. (And before anyone gets too self-righteous about twisting the law to suit morality, remember that most federal environmental regulations rest on a loose interpretation of the interstate commerce clause that is allowed to stand in part because judges feel that protecting the environment is simply the right thing to do.) The case against homosexuality has always been a moral one, regardless of what rhetorical trappings have been put on it.

The moral case against homosexuality needs to be balanced by a moral case for homosexuality. Gay sex is not just permissible, it's desirable for certain people -- i.e., homosexuals and bisexuals whose best prospect for a partner happens to be of the same sex.

I don't mean to imply that gay rights advocates haven't made moral cases for homosexuality. Rather, I want to emphasize the importance of engaging in a moral debate rather than relying on legal limits to government interference. Moral convictions, not Constitutional technicalities, are what rally people to a cause. Few people found errors in the Roe v. Wade decision and then became pro-life, whereas many have been motivated by their anti-abortion feelings to decide that Roe is fallacious. Gay rights advocates need to instill this kind of drive in the public.

Social conservatives say that homosexuality is unnatural. So we need to point out that there is little less natural than suppressing a person's true desires (while recognizing that such unnaturalness is necessary at times -- in the case of a desire to murder, for example). Nature has given us an incredible variety of people, so it would violate human nature to force everyone into a single mold for how to be a good person.

Social conservatives say that homosexuality undermines the family. So we need to point out that legal and social stigmas against homosexuality undermine families. They estrange gays from family members who canít accept homosexuality, and hinder gay couples from forming strong and functional households. Despite all the sanctimonious talk about traditional marriage, heterosexual couples have a host of problems, and there's no reason to think homosexuals will have any worse luck. If strong and loving families are our goal, what sense does it make to bar a substantial proportion of the population from even trying to form them?

Privacy arguments for allowing homosexuality can be useful in creating a compromise between pro-gay people and social conservatives who may be willing to let the responsibility for sin rest on the heads of the perpetrators. But to maintain a political climate that will uphold gay rights, we must aspire to more than simply allowing homosexuality. We must create a constituency that insists on a right to homosexuality regardless of what the law may say.

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