FOR SODOMY LAWS

In Defense of Sodomy Laws
By Scott Lively, Esq.

We need to keep sodomy laws on the books, and here's why...

In early December of this year the U.S. Supreme Court agreed to hear the case of Lawrence v. Texas, which once again challenges the right of states to criminalize consensual homosexual sodomy. I am the co-author, along with Richard Ackerman and Gary Kreep of the United States Justice Foundation, of the sole amicus brief opposing the Lawrence petition for review.

At issue in this case are two substantive legal questions and numerous political questions. The first legal question is whether the states have a right to regulate sexual conduct in the interest of public health, safety and morality. On this question, the "gay" movement hopes that the court will reconsider its decision in the 1986 case of Bowers v. Hardwick. In Bowers, the court declined to equate homosexual sodomy with marital sexual relations. Justice White wrote for the majority:

Respondent would have us announce ... a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. ... Proscriptions against this conduct have ancient roots. ... Against this background, to claim that a right to engage in this conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious.

I believe the court is unlikely to reverse Bowers for several reasons, not the least of which is that the underlying legal principles have not changed since the words above were written, even if public opinion has to some extent. An additional factor is this court's increasingly conservative record on the matter of states rights, meaning that it respects state sovereignty. Another reason may be inferred from Justice White's warning that making "consent" of the parties the primary criterion in deciding sex laws could lead to the legalization of all sexual crimes (incest, polygamy and pedophilia are three that quickly come to mind). That danger looms much larger in today's more highly sexualized culture than it did in 1986, a fact not likely to have escaped the attention of the justices.

Petitioners stand a slightly better chance of prevailing on the second legal question. It is the question of whether Texas' sodomy statute banning same-sex but not opposite-sex sodomy violates the Equal Protection Clause of the Constitution. The principle of equal protection is that government may not treat similarly situated parties unequally. The court will therefore need to consider whether same-sex and opposite-sex "sodomites" truly are the same under the law or whether there is a valid difference that would justify criminalization of the conduct of one and not the other. This was the primary question addressed in our amicus brief (which may be read online at www.abidingtruth.com).

Here again, the court is unlikely to side with Lawrence. As detailed in our brief, public health records and scientific studies show same-sex sodomy to be dramatically more harmful to individuals and society than is opposite-sex sodomy. AIDS statistics alone satisfy this claim. Centers for Disease Control and Prevention records show that as of June 2001, same-sex relationships accounted for 362,000 (45.6%) of the 793,000 AIDS cases (another 50,000 of the AIDS victims were homosexual drug users). This is compared to just 86,000 or 10.8% of AIDS cases caused by opposite-sex relations. Our brief identifies numerous other costly diseases and dysfunctions that disproportionably afflict homosexuals.

This is not to say that opposite-sex sodomy is not harmful (receptive anal intercourse is highly damaging to the human body), but same-sex sodomy carries a higher price tag for society.

In light of these facts, Lawrence's equal protection claim should fail for lack of equivalency between same- and opposite sex conduct. The fact that Lawrence may produce other studies and statistics more favorable to his position will not avail, since states are legally permitted to decide for themselves which scientific evidence to prefer in drafting their own laws.

Public morality provides an entirely separate basis for defeating the equal protection argument. States may, according to their own communal standards, differentiate same- and opposite-sex sodomy as morally distinct and dissimilar forms of conduct. On the legal questions, then, Lawrence should fail and the state's right to regulate harmful sexual conduct should again be affirmed by the court. However, this will throw the issue back to the states for discussion of the more difficult political questions raised by Lawrence.

Unfortunately, few people dare to defend sodomy laws these days. The push-the-envelope morality of the 1960s sexual revolution has attained a status akin to religious dogma in this country, and people who question whether we've gone too far are the new heretics. Yet, at the risk of being burned at the stake, some of us need to speak up in favor of reasonable limitations on what is considered acceptable sexual conduct.

In generations past, regulating sexual conduct was much simpler. Americans recognized that a healthy society is rooted in the natural family (i.e., a man and a woman and their children by birth or adoption). Both church and state promoted the institution of marriage to protect families (and therefore society itself) from destructive influences, especially promiscuity (meaning all sexual conduct outside of marriage). The marriage license was a license to enjoy sexual freedom without government interference or scrutiny, while both law and public morals discouraged promiscuity.

Then, in the late 1940s, the still-hidden homosexual movement, led by in-the-closet "gay" activist Alfred Kinsey, began attacking marriage-based sexual morality. Kinsey promoted sexual "freedom" for everyone, including children, limited only by the concept of mutual consent. By the mid-1960s, Kinsey's "gay" activism had sparked a sexual revolution. Subsequently, one by one, the barriers to sexual freedom were thrown down, and with them fell the security and stability of the natural family. Today, instead of a nation of intact healthy families, we are a fractured society, our culture dominated by sex-obsessed narcissists and awash in behavior-based social problems.

The sodomy laws are the next-to-last true barrier to Kinsey's forces. Only age-of-consent laws, the last barrier to unrestricted sexual license, will remain if Bowers is overturned, and I'm afraid that barrier would not long stand. Already, adults can legally have sex with 14-year-olds in Canada and with 16-year-olds in some U.S. states.

Yet sodomy, especially anal sodomy, deserves to be criminalized. Although characterized by homosexuals as a loving act, sodomy is an act of sadism and violence against the receptive partner that often results in serious damage to the body, especially over time. That one partner consents to this abuse should not sanctify it in the eyes of the law, any more than wife-beating should be sanctioned if a wife consents to it. Indeed, the health complications from sodomy can be more dangerous to one's health than a physical beating.

Perhaps the most important function of sodomy laws is to deter to the spread of homosexuality in society. As revered a constitutional figure as Thomas Jefferson cited this justification in his restatement of the law on sexual crimes. Labeling homosexual sodomy as "buggery," he noted that, classically, "Buggery is twofold. 1. With mankind. 2. With beasts," and noted that of the two, homosexuality was worse, because "Bestiality can never make any progress" (Thomas Jefferson, Library Classics of the United States, 1984, p. 355).

Homosexual activists will drag out the old chestnut that no one can become "gay," but common sense is on the side of Jefferson, that any form of consensual sexual behavior will (and does) increase as it becomes more accepted in society.

It is hoped that the Supreme Court has taken review of the Lawrence case to reaffirm the constitutionality of sodomy laws. Otherwise, the excesses of the sexual revolution — and the power of the "gay" movement — will continue to expand to our collective detriment.

Scott Lively is the founder and director of the Pro-Family Law Center and president of Abiding Truth Ministries, based in Citrus Heights, California. He can be reached at (916) 676-1057 or by e-mail at lively@abidingtruth.com.