Lawrence v. Texas (2003), Revisited
A recent issue of The World and I seriously challenged the somewhat libertarian majority opinion of the Supreme Court in Lawrence v. Texas (2003), striking down the Texas homosexual-only sodomy law. A major argument raised in this article, public health [particularly HIV], has been largely ignored in most of the litigation regarding sodomy laws (it was not even mentioned in the 1986 Bowers v. Hardwick decision). A few quotes from the article set the tone:
“All societies gave regulated sexual behavior, not only to protect the individuals immediately involved, but to protect society at large. The expansive notion of privacy announced by the Court in Lawrence cannot be sustained in the law without doing much mischief to our social life. The Court appeared to ignore the fact that because private sexual activity has public consequences, some sexual practices are harmful, and laws in general are based on moral beliefs, our society has the right, if not the obligation, to regulate sexual conduct to some degree…
“Glaringly absent from the Court’s discussion of the historical prohibition of homosexual sex is the contemporary reason for discouraging such conduct: it is not healthful. It can be dangerous…”
“The Court may be the only entity capable of mustering respect for what appears to be a contemporary, macabre dance of death.”
A Letter to the Editor of The Washington Times, Aug. 15, 2004, the letter titled "No Place in the Schools." authored by Earle Fox, makes this comment:
"There has never been a candid, respectful
public discussion of the real issue, homosexual behavior, because homosexual
advocates cannot afford to discuss such self-destructive behavior in public, and
conservatives almost universally are too prudish to do so."
Ironically, I had gone over the medical arguments in detail in Chapter 3 of my own first Do Ask, Do Tell book, to the point that when I made it available for free browsing and searching online, I feared running afoul of the Child Online Protection Act (COPA) and became a plaintiff challenging it! The (first) writer here makes a graphic comparison of gay male sexual practices to Russian roulette, the game in Part II of the 1979 film The Deer Hunter.
I take a moment here to update my personal perspective. Back in 1978, when I was living between the two Greenwich Villages in the Cast Iron Building, I had a personal experience that would give me a foreshadowing of what could happen a few years later, that a bizarre medical epidemic could sweep through the male gay community because of the collective sum of its sexual practices. Philosophically, this brings up the old fashioned idea that the world and our planet earth is always potentially a dangerous place, with many theoretical threats that might happen as people claim more freedom for themselves; it is the unpredictability of external troubles that adds to the need to pay attention to collective values and survival. In fact, I have discussed with a literary agent a novel proposal and sample where a new and even more bizarre (but so far fictitious) “slow virus” epidemic springs upon our civilization and threatens to bring it to an end as we know it. It makes, at least, an intriguing thought experiment.
I was living in Dallas during the worst days, the mid 1980s, when groups like the “Dallas Doctors against AIDS” almost got a very draconian law passed in Texas that would have eliminated homosexuals by statute from many occupations (making the military’s “don’t ask don’t tell” policy seem tame in comparison). I remember seeing many of my friends fall. I became a “baby buddy” at the Oak Lawn Counseling Center, and would deal with seeing recently attractive men show up with their forearms mostly shaved smooth for pentamadine iv’s treating pneumocystis pneumonia, and a few legs disfigured by huge areas of bluish Kaposi’s sarcoma tumor mass exploding just underneath the skin surface (though somehow the hair could grow through). Nevertheless, the epidemic seemed to come under some control; its exponential growth (as a geometric progression) within the gay male community slowed as it moved on, like a tornado. By the early 1990s, after I had moved back to the D.C. area, new cases of friends going down with opportunistic infections and tumors became much less frequent—partly because of safer sexual practices, and partly because of medications. It is now perceived as a manageable problem, even as one reads about the “protease paunch.” Nevertheless, the epidemic flares up from time to time in younger men in cities like San Francisco, while now it decimates lower income communities often through heterosexual contact and drug abuse. Well-intended proposals for single payor health care would run into the problem that taxpayers would really fit the bill for reckless sexual behavior and have a direct “state interest” in regulating it, although the same could be said about cigarette smoking, fast foods, and many other behaviors.
But what strikes me is how far the debate has moved out of the public health area. In the 1990s, the main argument against letting homosexuals serve openly in the military was “unit cohesion” and the “privacy” of heterosexuals in the barracks; the military had long tested for HIV infection at enlistment (although it did not necessarily discharge HIV infected soldiers). And now gay marriage is at the center stage, and the subtlety of the psychological battle is striking indeed. The main argument, after all is said in done, starts with the economic and cultural stress on the nuclear family and ends with the fear that gay marriage would insult the idea of bloodline, lineage and biological kinship that has for generations motivated most people to have and raise families as a prerequisite for continued adulthood.
Of course, the whole cultural paradigm of the family is what drove me into my own separate existence. I was not prepared to compete well to become a “patriarch,” so I chose upward affiliation instead. Like the rich young ruler in the Biblical parable, I would get to choose who is “good.” Or perhaps I would claim inappropriate level of control over my own “talents.” With some thought, one can see how others would see my goals as eventually insulting or threatening to them. My episodic sexual behavior, while (as a "private choice") it is incidental to psychological purpose, then has a collective context which might eventually become dangerous to others or to civilization as we know it. And this is all disturbing. For the legal right to serve openly in the military, to marry a partner of my own choosing with full legal equality, and to become a parent--all these would mean first class citizenship, the ability to fill responsibilities that go with rights. The alternative is a subservient existence, or a separate one, which society, given external threats, might not always allow me. The only legitimate personal choice (for an invert like me) in a world that accepts sodomy laws and the idea of "chilling effect legislation" is, "play by our rules, promote our goals and your own family, try your best to become a husband or wife and parent, or else become a slave. And, oh, if you play our game, we will really help you!" So much for self-expression or self-definition.
©Copyright 2004 by Bill Boushka, subject to fair use
See also links at this site for gay marriage, COPA, and "solidarity and hyperindividualism." Here is the link for Lawrence v. Texas; the Court opinion text is at this link.
 Camille Williams, “Why the Law Should Discourage Some Sexual Practices,” The World and I, June 2004, p. 249. This periodical is a publication of The Washington Times.