Posted on 12/10/2002 11:21:41 AM PST by Liz
Like whist, whilst, and self-abuse, the word sodomy has an old-fashioned ring to it. You don't even see it alluded to much anymore, except in punning tabloid headlines about the situation in Iraq. But it—or its kissin' cousin, the nearly as archaic-sounding "deviate sexual intercourse"—can be found in the criminal codes of thirteen states of the Union, where it is punishable by penalties ranging from a parking-ticket-size fine to (theoretically) ten years in prison.
Even at this late date, many people are vague about just exactly what sodomy is. Montesquieu defined it as "the crime against nature," which is not especially helpful. Blackstone called it "the infamous crime against nature, committed either with man or beast," which gets us a little further, but not much. Back in the U.S.A., the statute books tend to be franker. Some states bring animals into the picture, some don't. The Texas Legislature's definition is nonzoological.
SKIP THIS IF EXPLICIT LANGUAGE OFFENDS. According to Section 21.01 of the Texas Penal Code (readers of delicate sensibilities may at this point wish to skip down a few lines), " 'Deviate sexual intercourse' means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object."
RESUME READING HERE What the Lone Star State does and does not view as some kinda deviated preversion became of national interest last week, when the United States Supreme Court agreed to consider Lawrence v. Texas. The Lawrence of the case is John G. Lawrence, fifty-nine years old, of Houston, who, on the evening of September 17, 1998, was in his apartment with a guest, Tyron Garner, who is thirty-five. Texas got involved when police, having been tipped off by a neighbor that a "weapons disturbance" was in progress, busted down the door. (The tip was a deliberate lie on the part of the neighbor, who was later convicted of filing a false report.)
What the officers found Lawrence and Garner doing is really none of our business, any more than it was any of Texas's; suffice it to say that it was consensual, nonviolent, and noise-free. The two men were arrested, jailed overnight, and eventually fined two hundred dollars each. They appealed, a three-judge panel of a district appeals court reversed their conviction, the full nine-judge appeals court reversed the reversal, and the Texas Court of Criminal Appeals declined to do any more reversing. And so to Washington.
The statute under which Lawrence and Garner were convicted, Section 21.06 of the Texas Penal Code, is officially known as the Homosexual Conduct Law. Ironically, this statute was a product of the progressive mood of the early nineteen-seventies. In most of the states that still criminalize sodomy, it doesn't matter, legally, whether a couple engaging in behavior (A), above, consists of two men, two women, or one of each.
That's how it was in Texas, too, until 1974. In that bell-bottomed year, the Texas Legislature made heterosexual sodomy legal, but it couldn't quite bring itself to do the same for gays. The result is that Texas is now one of only four states (the others being Kansas, Missouri, and Oklahoma) where it is a crime for gays to please each other in ways that are perfectly legal for straights. The panel that overturned the conviction saw this as discrimination on the basis of sexual orientation.
The full state court disagreed. Rather, confirming what Anatole France called "the majestic egalitarianism of the law, which forbids the rich as well as the poor to sleep under bridges," the court pointed out that in Texas homosexuality is illegal for heterosexuals and homosexuals alike. No discrimination there.
According to the Times's Linda Greenhouse, the Supreme Court probably wouldn't have taken the case unless a majority had already decided to "revisit" Bowers v. Hardwick (1986), which upheld the constitutionality of Georgia's sodomy law.
The decision in that case—by a vote of five to four, as with so many of the Court's clunkers—was an embarrassment. Both its language and its reasoning were shockingly coarse. Writing for the majority, Justice Byron White defined "the issue"—leeringly, sarcastically, obtusely, and repeatedly—as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy," or protects "a fundamental right to engage in homosexual sodomy," or extends "a fundamental right to homosexuals to engage in acts of consensual sodomy." Any such claim, he added, "is, at best, facetious."
Caricaturing the well-established constitutional right to privacy in this nyah-nyah way is like dismissing the First Amendment as being all about the right to make doo-doo jokes. It was left to the author of the dissenting opinion, Justice Harry Blackmun, to point out, quoting Justice Brandeis, that the case was really "about 'the most comprehensive of rights and the right most valued by civilized men,' namely 'the right to be let alone.' "
Justice Lewis Powell, who tipped the balance in Bowers v. Hardwick, expressed regret years later that he had voted the way he did. He's gone now. John Paul Stevens, who dissented, William Rehnquist, now Chief Justice, and Sandra Day O'Connor are the only holdovers from the Court that upheld Georgia's sodomy law (which, by the way, was thrown out, a few months after Lawrence and Garner were arrested in Houston, by Georgia's supreme court, for violating Georgia's constitution).
Half the states that had sodomy laws when Bowers was decided have got rid of them, and those that still have them seldom enforce them. But when they are enforced the consequences can be more onerous than it may appear. Lawrence and Garner aren't just out four hundred bucks; they may also be banned from certain professions, from nursing to school-bus driving, and are deprived of other privileges denied to persons who have been convicted of "crimes of moral turpitude."
Anyway, sodomy laws are a standing insult to, among others, millions of respectable citizens who happen to be gay. They are an absurd anachronism and an obvious violation of the right to privacy. Whatever they may have represented in Montesquieu's day, or even Byron White's, in 2002 they are nothing but an expression of bigotry. If the Supreme Court takes a truly honest look at Section 21.06 of the Texas Penal Code, it will surely agree with the view of Dickens's Mr. Bumble: this is one case where, at bottom, "the law is a ass."
--SNIP -- Clink on source link for rest of story (go to next)
They leave out the fact that By the very early 1800's every state North of Delaware had outlawed slavery.
It was the Southern States that were the Slave Holders.
The Founders intended for it to be a state issue in order to keep the nation together. The Southern States would never have ratified a Consitution otherwise. It worked until 1861.
Even after the Civil War, Every State STILL had laws against sodomy, That was after the 13th and 14th amendments mind you.
So tell me, Every State had sodomy laws well into the mid-1900's, then all of the sudden the pot-heads of the 1960's hit, are you telling me that the 60's radicals are more enlightened than our nation until the 60's?
Really? Last I checked they applied to heterosexuals too. And heterosexuals have been charged and convicted of sodomy on several occaisons that I know of, including between man and wife in their home!
I believe the prostitution should be legal. And for those that think it should be illegal, prostitution is to combination of sex and commerce. Which of those are you against?
Should homosexuals be prosecuted for being homosexuals, convicted of a felony, and put in prison for 25 years? And if not, what should be the punishment for being an illegal homosexual?
Another shining example of libertarian thinking.
Libertarians are not pro-Consitution, They are pro-immorality.
. In most of the states that still criminalize sodomy, it doesn't matter, legally, whether a couple engaging in behavior (A), above, consists of two men, two women, or one of each.That's how it was in Texas, too, until 1974. In that bell-bottomed year, the Texas Legislature made heterosexual sodomy legal, but it couldn't quite bring itself to do the same for gays. The result is that Texas is now one of only four states (the others being Kansas, Missouri, and Oklahoma) where it is a crime for gays to please each other in ways that are perfectly legal for straights. The panel that overturned the conviction saw this as discrimination on the basis of sexual orientation.
Of course, this same battle of whether a state could prosecute a homosexual for behavior that is legal for a heterosexual could have been fought over "age of consent" laws. But that would have eliminated the term "consenting adults" and the fictional boogeyman Big Brother snooping in the bedrooms.
The fact of the matter is that overturning the law on this basis will "norm" age of consent laws downward for homosexual behavior. If the legislatures decide to revise their age of consent statutes, they will be doing it after their existing prohibitions of adults committing acts of homosexual sodomy (the only type of homosexual sex there is) on minors aged 14-17 have been struck down as discriminatory.
Homosexual adovocates and privacy defenders tell me that I'm taking this too far. I don't see how the courts could permit those laws to stand as written if they strike this one down under the grounds of "discrimination".
By the way, men and women are not discriminated against in Texas. Both may participate in acts of sodomy with one another, they are prohibited by law from participating in such acts with members of the same sex.
If this sounds like a sub-case of this lawsuit, be aware that there are those who have pushed for this precise change in age of consent laws (both in America and the UK).
Agreed. In fact, the exact opposite of what FF578 said is true. Every civilization EXCEPT the Jewish culture and it's religious offspring, Christianity, indulged in homosexual practices...the Greeks, the Romans, you name it, they did it. To be honest, being straight and monogamous was the DEVIANT behavior of the day.
The Lord God called a people, and commanded them to live holy, not like every other culture around them. It would seem that legislating morality would have been the obvious thing to do in order for a culture or society to maintain the blessing of God.
Unfortunately, there are those on this thread who hate God, and will defend their "right" to sin against all reason and common sense. So be it.
Phantom Lord said he supports Prostitution, I wonder if he also supports the end to the age of consent (or lowering the age of consent), the right to have sex with animals, the right to marry close relatives, and the right to multiple wives?
If not why not? If So, explain your thinking.
The Christians would do the killing instead of the Muslims.
The Founders did not allow women to vote. She we ban them from voting?
The Founders considered blacks to be 3/5ths of a person in the census. Should we return to that standard?
Using the founders as a basis in arguing for position A can put you in a horrible bind on position B
The early Romans did engage in Homosexuality, they were not civilized.
You are probably aware that later on the Roman Empire banned sodomy and made it a capital crime, The Corpus Juris Civilis is the sixth-century encyclopedic collection of Roman laws made under the sponsorship of Emperor Justinian. "It is Justinian's collection which served as the basis of canon law (the law of the Christian Church) and civil law (both European and English)."
The following is a statement in Law French from Corpus Juris: "'Sodomie est crime de majeste vers le Roy Celestre,' and [is] translated in a footnote as 'Sodomy is high treason against the King of Heaven.' At common law 'sodomy' and the phrase 'infamous crime against nature' were often used interchangeably."
And I am not a libertarian.
Nothing new there.
Scalia, Thomas, Renquist and O'Conner are not going to vote to overturn the law. (O'Conner and Renquist voted in the majority in Bowers V Hardwick. Scalia and Thomas will side with them.)
Kennedy will decide the vote.
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