Why is it that even the more conservative commentators could not quite give an accurate account of the law on sodomy in Texas that the Supreme Court struck down last week in Lawrence v. Texas? Bill O’Reilly, shooting from the hip, or the lip, branded the law as a measure bringing forth the “Sex Police.” He could make a grand, liberal gesture in condemning any law that would bring under surveillance sexual acts done in a setting of privacy.
O’Reilly’s reaction was rather typical, and yet as anyone should know, there are no Sex Police, and no such policy in which police actively seek out cases of sodomy behind closed doors. Both in Lawrence v. Texas and Bowers v. Hardwick (1986), the police had entered private premises in search of evidence of other crimes. In the Lawrence case, the police in Houston came in response to “a reported weapons disturbance.” In both cases the police happened upon evidence of sodomy that was officially proscribed in the law — mainly because the participants were remarkably casual or careless about sheltering their acts from the sight of passersby, in a domain of intimacy. The police, encountering the act open to view, responded to the cavalier disregard of convention by making a show themselves of taking the law seriously. And yet, in Hardwick, the district attorney, faced with the report of the police, actually decided not to prosecute. It was Hardwick who forced the case by moving immediately into a federal district court, in an effort to have the law declared unconstitutional.
It should be plain that the police have not been encouraged to make this kind of offense a matter of high rank in claiming their time or attention. Justice Kennedy admitted as much in his opinion for the Court, in a passage apparently unread by many commentators. Kennedy noted that, in the states where sodomy was still proscribed , “there is a pattern of nonenforcement with respect to consenting adults acting in private. The state of Texas admitted in 1994 that as of that date it had not prosecuted anyone under these circumstances.” In the most curious way, Kennedy managed to build this point into his condemnation of the law: The want of enforcement suggested that the law was not taken all that seriously as a law; and in that case its rare enforcement could be a mark of arbitrariness. Unless, of course, there is a rationale for having a law on the books, preserving premises in the law, even when that law is not enforced with unseemly vigor.
The police might have been instructed in this vein by their superiors, to hold back with prudence. But those superiors might not have been clear themselves on the reasons for holding back. They might have been in the same haze as the commentators, who serenely missed the same point: that these laws serve a function, and a deeper purpose, which runs well beyond anything that could be gained by enforcing the laws against the hapless characters who are careless enough to run afoul of them. The very fact that these measures find a place within the laws and public policy of the state serve many interests, touching on the family, divorce, and the grounds for assigning the custody of children. And those interests run beyond any concern to generate embarrassment for the people observed in sexual encounters.
The point was suggested, in a simple example, several years back. A Florida prostitute brought an action in a court of small claims complaining about a bad check she had received from one of her clients. The judge sympathized in a way with a person defrauded, but he had to remind her that prostitution was, after all, against the law. That law was not typically enforced in a rigorous way, or with any serious expectation of purging from the public the vice of prostitution. But the practice was made slightly more hazardous by the fact that judges could not be called upon to enforce a contract for a purpose regarded as immoral or wrong in the law.
The case of same-sex marriage looms large as a prospect hovering over these cases on sodomy and gay rights. The courts in Canada have now established same-sex marriage in that country, and the supreme court in Massachusetts seems about to ease the way for that arrangement here, and so the question must arise as to whether other states would be obliged to honor the marriages brought about in these jurisdictions. The understanding firmly established in the laws is that a state need not honor certain kinds of marriages — say, incestuous marriages — if the state has, in its own public policy, a moral rejection of those kinds of marriages.
But that is precisely the prop that is knocked out when the Supreme Court declares, with Justice Kennedy, that it is no longer tenable for a state to regard gay sex as any less legitimate than the sexuality “imprinted in our natures” — the sexuality marked in the presence of gender, and the purpose of begetting. The question is whether the state is on tenable ground when it refuses to recognize any brand of homosexuality as standing on the same plane as sexuality in the literal sense, or as having a claim to nothing less than a “way of life.” The eyes of the law may simply be diverted, in a policy of tolerance or indifference, as people do all kinds of things in the privacy of their bedrooms. But if every brand of sexuality is to be regarded on the same plane, equally plausible and legitimate, then it may be untenable for the state to deny that a homosexual union should have any less standing, in the law, than a marriage composed of a man and a woman. And if marriage is detached from the function of begetting, it is hard to see any ground of principle for confining marriage to a “coupling.” Indeed, we have now seen the advent of the “polyamorous,” a group of people who contend that their loves are not confined to a coupling, but woven together in a larger ensemble of three and four or more. On what ground of principle then would the law refuse to be open to these other, novel forms of marriage?
And yet it is not merely marriage engaged here, but all of the things that flow from marriage, including the custody of children. Justice Kennedy invoked in his opinion a notion of liberty anchored in the “autonomy of self.” With that sense of autonomy, he thought that all persons could claim, at least in the domain of sex, a “respect for their private lives.” But is that even faintly plausible? If people practice sadomasochistic sex or bestiality, if they have sex with animals in forms familiar and novel, would Kennedy truly contend that the rest of us are obliged to respect virtually everything that is done? Or that the law should be barred from drawing adverse inferences? After all, decisions must be made in the law in assigning the custody of children, or in deciding whether a couple, unrelated to a child, is fit to act as adoptive parents. Might we not indeed question the maturity or judgment of people who find their pleasure in whips or bestiality?
In the aftermath of the decision in Lawrence v. Texas, legislators in Virginia and other places have begun to weigh proposals designed to shore up the defense of marriage.
All of that is to be welcomed, but they might employ their arts with a fuller leverage if they challenged Justice Kennedy’s claim that his ruling will not be flowing over to compel a “formal recognition” of same-sex marriage or “any relationship that homosexual persons seek to enter.” Kennedy had claimed that his concern here was with the branding of people as wrongdoers in the “criminal law.” Conservatives, for their part, have shown no inclination to make sodomy or masturbation into subjects dealt with by the criminal law. Bill Buckley, Clarence Thomas, the editors of the Wall Street Journal have all expressed their willingness to see those criminal laws on sodomy repealed. But if those ancient laws on sodomy disappear now, something else should be put in their place to anchor those moral understandings in the law.
The legislators could indeed take marriage as the center of their concerns. They could affirm again that a legal marriage is the union of a man and woman known as husband and wife; that no plural marriage will be sanctioned in the state, and no more will the state treat couplings of the same sex, under any name or title, as couplings to be accorded the standing and privileges that attach to marriage. They might also stipulate the incontestable point that in sexuality, as in every other domain of life, people may manifest their character, bad as well as good, and that the character revealed in sexual lives may be aptly considered by the courts, and official agencies of the state, as they need to reach judgments on divorce, adoption, and the custody of children. But that is to say, the character revealed, even in these private encounters, may bear with a direct relevance on the earnestness of people to preserve a faithful commitment to one partner, a spouse, and to children, in a framework of marriage.
Justice Kennedy and his colleagues offered rhetoric soaring well beyond any judgment they had been obliged to reach, or anything they could seriously believe themselves. Only an amendment to the Constitution will avert the wider damage that their decision portends. But in the meantime, some timely, focused measures by legislators may delimit this new ruling, and rescue Justice Kennedy from a jurisprudence that ultimately cannot explain itself.
— Hadley Arkes is the Vaughan Fellow in the Madison Program at Princeton University. His most recent book is Natural Rights and the Right to Choose.