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Understanding the Right's Fear of Sex: How America's Absurd Oral Sex and Sodomy Laws Were Overturned

After Lawrence v. Texas, the mere mention of “morality” was no longer enough to deny basic constitutional privacy rights.

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Paul Murphy, the appeals-court judge who’d cast the deciding vote to overturn the law, had a different point of view. He told Carpenter that all anyone needed to know was that the state law that forbade “homosexual conduct” had legalized sex with animals.

Defending the law fell on the shoulders of Harris County district attorney Charles Rosenthal, whom Carpenter depicts as woefully unprepared. On the other hand, he had weak material to work with. He had to convince the Supreme Court that the law had a rational basis strong enough to justify violating privacy, and thus had to come up with more logical arguments than “butt-fucking is icky” and “God said it, I believe it, that settles it.” He also had to prove that it did not discriminate against gays and lesbians, even though it applied only to same-sex conduct.

In the oral arguments before the Court, Rosenthal tried to counter the privacy argument mainly by repeating the word “morality,” saying the state had the right to define and enforce it—much as the state also had the right to outlaw drug use in private. He argued that the law wasn’t discriminatory, because it also banned heterosexuals from doing it with someone of the same sex.

How can that make sense, a reporter from High Times asked at the impromptu press conference afterwards, when if someone can get sexually aroused enough to do it with someone of the same sex, they’re either gay or bisexual?

“What if they’re sexually aroused by 10-year-olds? Is that OK?” Rosenthal snapped back.

(A few years later, the DA would resign after revelations that he had used his office e-mail to carry on an affair with his secretary. An affair with his secretary had derailed the political career of Michael Bowers, the Georgia attorney general who argued the 1986 case.)

By a 6-3 vote, the Court held that the law was unconstitutional on the grounds that its invasion of personal privacy violated due process of law. “It is the promise of the Constitution that there is a realm of personal liberty which government may not enter,” Justice Anthony Kennedy wrote. Justice Sandra Day O’Connor wrote a concurring opinion focusing on the equal-protection claim, which the rest of the majority considered a secondary issue.

The decision, Carpenter says, would not have happened without the widespread cultural acceptance of gays and lesbians that had developed in the previous 17 years. The Bowers decision came a mere 17 years after Stonewall, and Justice Lewis Powell, who cast the deciding vote, did not know that one of his three law clerks was gay. By 2003, Carpenter notes, all the accredited law schools in the country had antidiscrimination policies (Regent and Liberty universities, the main Christian-right law schools, evade that by saying they don’t discriminate on the basis of sexual orientation, only against sexual “misconduct” or its advocacy), and most leading law firms had openly gay attorneys.

“It was remarkable how all the big-name law firms in town were on our side and nobody was on their side,” Paul Smith, the Washington lawyer who argued the case, told Carpenter. Justice Antonin Scalia’s dissent denounced the law profession for having “signed on to the so-called homosexual agenda.” (It also suggested that states had the right to outlaw masturbation.)

Though neither Lawrence nor Garner had been political, the bust outraged their sense of justice. “If it could happen to me, a poor little guy who worked forty hours a week and lived in his own home,” Lawrence told Carpenter in 2005, “this probably could have destroyed somebody’s life…. And I said no. No.” 

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