Commentary: Santorum, Lawrence v. Texas and sodomy laws


Commentators were grossly offended by Senator Santorum’s comparison of sodomy to incest, adultery and polygamy in his defense of sodomy laws. As a baby-boomer gay man, however, I was struck by his claim that my own freedom of private choices in sexual behavior undermines families, especially by claiming my social equality.


One way this putatively happens relates to my disposable income, to compete with others with families to support. Recently, child-free advocacy groups have drawn blunt fire from pro-family forces, who now baldly accuse people like me of refusing to accept parenthood as a self-evident obligation in a free society. Of course, such right-wing demagogues crave the enormous social and public policy support given to traditional families today, and will argue that a society stressed with economic hardships must be even more favorable to families. 


Some lesbians and gay men have built stable same-sex couples and raised children. Why aren’t things fair, then, if lesbians and gay men can marry, adopt children or serve openly in the military, and then are also expected to do so?


Santorum hints that the underlying issue is confidence. Homosexuality, he feels, is inherently narcissistic, whereas the heterosexual family norm is based on postulated mechanisms of complementarity. The basic model of courtship and marriage—the “tender trap”—needs to work so that average people believe that the family will be there for them (and especially for their children and elderly parents) when they need it. This concept is roughly like our notion of confidence in financial markets. But then, doesn’t using a practically unenforceable criminal statute to maintain a subjective social value system undermine confidence in the law itself?


I certainly have borne my share of stigma under this nebulous “family value” system. I was thrown out of college as a freshman for telling the Dean that I am gay, although I would subsequently serve in the Army without incident. I was never fired from a job for being gay, but I manipulated my career in information technology to keep my work life completely separate from my “private choices,” to the extent that I did not advance. This strategy is no longer realistic in today’s economy. During the late 1980s, in one job search, I did find that employers viewed a never-married man as a potential AIDS health insurance risk. 


 Allegedly, I never outgrew a certain obsession with my own thoughts, values and fantasies enough to relate to women and incorporate into myself the experience of lineage and family. Therefore the whole question of “choice” or immutability becomes morally irrelevant for me. But my own experience turns this question around. Marriage, it seemed  when I was younger, provides a convenient place to hide for men who are “good” with women but otherwise untalented, and I resented this.


Homosexuality fits in with the growing individualism of the past thirty years. There are previously unimagined freedoms and ways to fail personally because of direct and indirect consequences of one’s chosen actions (and inactions). Individualism and meritocracy tempt us into a mindset of caring only about others when they excite us or “measure up.” Understandably, this scares many people, who look to social programs and wealth redistribution (the left) and to the obligatory nuclear family (the right) as a way to “save” people who otherwise drop out into the cold. Family does have the benefit of other-directing people without highlighting personal sacrifice.


The religious right has raised good questions about the moral legitimacy of personal choices when made without regard to the needs of others. The right has also stigmatized me based on my most intimate passions and personal values. Yet the gay lobby usually runs from discussing the legitimacy of choice, because private choice now has some public visibility and consequences, and because our legal system has grown lazy by dealing with people in classes (even in pursuing “equal protection”).


Regrettably, and despite “due process,” it is likely that the Supreme Court will again leave intact some prerogative by states to use criminal code to provide indirect protection of social standards. The legal questions are not as important as the underlying practical questions about the limits and meaning of individual choices in a competitive world.




This commentary was sent to several newspapers in May, 2003.


In addition, the following should be said:


In Bowers v. Hardwick (1986) the Supreme Court majority indicated that the due process clause in the 14th Amendment does not, as a constitutional matter, preclude states from implementing communitarian social or moral codes indirectly through criminal codes, even with laws that can result in relatively few (although not zero) arrests and prosecutions.  Logically, this would mean that states could reinforce the moral idea of “family values” through sodomy laws that apply to everyone (although some of the majority writing in Hardwick did focus on “homosexual sodomy”).


But the Romer v. Evans decision (1996) against Colorado Amendment 2 would give some credibility, constitutionally, for equal protection challenges to “homosexual only” sodomy laws such as Texas. The Court is not likely to recognize the idea of gays as a “suspect class” to the extent that homosexuality is equated to chosen behavior. This gets into the crude attempt by some majority members in Hardwick to equate sodomy with homosexual orientation. However, a large body of credible literature supports the idea of sexual orientation having some biological component, and some environmental components behind the individual’s control. Homosexual orientation relates to the way the individual carves out his or her own life “purposes” (as in Matrix language), but it sometimes also relates to such fundamental traits as aggressiveness and personal reaction to expected gender roles. It is impossible to disapprove or handicap persons who practice “homosexual conduct” without punishing those who for, whatever immutable reason, cannot relate to gender-related roles that society would like to assign to them. Some moralists, of course, may see gender role rejection as itself a kind or narcissism or refusal to “grow up.” In any case, homosexual-only sodomy laws may be seen as an attempt to create a stigmatized class of persons, a class that would not otherwise exist without legal or social artifice. According to Romer’s equal protection logic, then, homosexual-only sodomy laws may well constitute an unconstitutional abridgement of the equal protection clause. 


Ultimately, however, sodomy laws invoke the question as to whether homosexuals are going to be regarded as second-class citizens, expected to help support the children borne by the sexual choices of heterosexuals at their (the homosexuals’) own expense, without the opportunity to take a similar level of socially supported responsibility and at some loss of personal freedom or opportunity. Many conservatives, after all, view heterosexual courtship and familism (as the granularity of “individualism”) as a “given” and do not really view sexual lifestyle as a legitimate “option” or “choice”; that is the ultimate irony of the equal protection arguments. However, walking in their shoes would suggest that every one (particularly every male) has a “responsibility” to “grow up” with heterosexual values of courtship and marriage, or else be relegated to an inferior and subservient station in life; this is certainly a morally objectionable paradigm.


Note: The Supreme Court overturned the Texas sodomy law on June 26, 2003. Go to and


The Majority Opinion, written by Justice Kennedy and concurred by five of the nine justices, is remarkable in that, after all, it affirmed consensual adult sexual privacy as a fundamental right under the Due Process clause and apparently reverses Bowers v. Hardwick.  That is, all state sodomy laws (not just those applying only to homosexuals) are invalidated on due-process grounds. Justice O’Connor wrote a separate opinion based on Equal Protection, similar to the comments above.


Justice Kennedy talks about an “emerging awareness” of (consenting adult) sexual privacy as a fundamental right that should be outside of criminal sanction except when there is compelling state interest.  I had discussed an idea like this in my “Bill of Rights 2” essay and proposed that public awareness could be affirmed for constitutional purposes by shadow conventions or town halls. But even such specific public events are apparently not necessary to establish a change in tradition, even over a period as short as seventeen years. Emerging awareness has been well established in public debate of such issues as gays in the military, gay marriage and gay adoption and child custody, debates that started in earnest in the 1990s and that would not have been expected even ten years before, when the gay community was reeling from the political impact of AIDS. Awareness has also been shown by more refined discussions by publicly conservative columnists and commentators that now want to expand individual rights as long as these rights are accompanied by accountability and what D’Souza calls “authentication.” The media has played a major role, with the emergence of motion pictures and both network and cable television series showing gay characters, and these media efforts are gradually but inevitably becoming more ambitious economically.  “Gay rights” have been indirectly litigated in some free speech cases, especially the Child Online Protection Act (COPA), of which I am a litigant. And, I believe that I set a unique example with my “Do Ask, Do Tell” materials by placing them on the Internet to be found by thousands of readers over six years, with a writing style in which I anticipate and then answer almost any conceivable counter argument that the “opposition” can make, rather than by taking the customary and “politically correct” approach of derailing opponents by ignoring their arguments. So I believe that I have contributed to this “emerging awareness.”


Some conservative scholars have criticized the “emerging awareness” paradigm for “inventing” new fundamental rights through tradition, and maintain that justices should stick strictly to what is enumerated in the Constitution and Bill of Rights. Other conservatives (like Morton Kaplan of the April 1999 The World and I) had suggested that tradition and community values have always been important in shaping the fundamental precepts of individual liberties. Indeed, Byron White in writing the 1986 majority opinion for Bowers v. Hardwick had appealed to this idea for the opposite purpose, to deny that “homosexual sodomy” could be construed as a fundamental right.  The emerging awareness doctrine can probably be inferred from the Ninth Amendment (the “Penumbra clause”) in conjunction with the Fourteenth Amendment. However, if accepted, it has another moral and legal consequence. Homosexuals like myself who were injured by past discrimination are not entitled to damage due to actions predicated upon stricter social standards of the past, and are not excused from obligations because of that. Beyond the obvious statute of limitations defense, for example, William and Mary could use this idea if I tried to sue the College based on the 1961 incident. The College was legally entitled to follow prevailing beliefs at the time. (Admittedly, with race, the issues are even more complicated because race is obviously immutable; homosexuality, to the extent that it leads to behavioral choices, is always dealing with prevailing social standards of right and wrong as well as legal concepts of fundamental (privacy) rights and basic liberty interests.) It is also worthy of note that the “homosexual identity” invokes much less of a privacy argument and much more a free speech concept (especially in the days of the Internet) than does “homosexual behavior.”


Justice Kennedy does talk about public morality as an important and valuable concept, one tied to deep ethical, spiritual or religious views of many people. In due process litigation, “morality” has been generally viewed as a kind of black box or (in analogy to software engineering) “class.”  But the most important “moral” problem must be how to balance individual self-promotion (and self-satisfaction) with meeting the needs of others in a socially just way. What we call “family values,” in conjunction with general notions of public policy, mesh with moral notions in complicated ways dealing with such issues as taking care of the vulnerable, setting examples for children, sharing the cost of eldercare and child-rearing, lineage, and social privilege.  These are all important problems; but it is no longer acceptable to address them by punishing private consensual adult sexual conduct or by intentionally (if indirectly) stigmatizing individuals who may grow up emotionally diverse, often in a way that is actually good for the community. Indeed, the tone of Justice Kennedy’s writing suggests a libertarian approach, where people may experiment with moral notions and apply them in their own dealings with others.


Even so, the surprising tone of the ruling, which really wasn’t even close, may deal a severe blow to “religious right” interests in the cultural war, at least to the extent that the right wants to use coercive measures to impose its own ideal of morality.


Accordingly, the religious right is likely to press for constitutional amendments to prevent same-sex marriage (which arguably could be defended in light of this decision and recent developments in Europe and Canada). The “don’t ask don’t tell” policy regarding gays in the military may also be affected, as will the UCMJ Article 125 (the sodomy law for the military), although the Constitution gives explicit powers to Congress and the Executive Branch to regulate the military as a somewhat “separate society” and these explicit powers (“deference to the military”) can be used (by social conservatives or by the Pentagon itself) to defend the ban in future constitutional challenges.


The Court earlier had decided two closely related cases regarding affirmative action and the University of Michigan’s admissions policies. Here, the Court really did stress a modern idea of personal accountability and a movement away from collective solutions to social justice issues, even if affirmative action is still acceptable when carefully and narrowly tailored to meet genuine diversity requirements in business or education, rather than just to remedy the failure of past racial policies with numerical formulas.  


On December 3, 2003 The Washington Times reported that Tom Green is trying to overturn his polygamy conviction in the Utah Supreme Court by appealing to the due process portion of Lawrence v. Texas. He is also, however, convicted of criminal nonsupport of his children. Story is by Joyce Howard Price, “Polygamist Cites Ruling on Sodomy: Utah man fights for his five wives.”


Also, see Camille Williams, “Why the Law Should Discourage Some Sexual Practices,” The World and I, June 2004, p. 249. I respond to this at


ăCopyright 2003 by Bill Boushka, subject to fair use. This may be reproduced in full by media companies to which it has been submitted.



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