Unnatural Law

By

In September 1998, two men named John Lawrence and Tyron Garner were
having sex in Lawrence's home in Houston, Texas. Without warning,
police broke into the house and found the two engaged in what Texas
law calls sodomy. (The police had been summoned by a neighbor who
had complained about a man allegedly "going crazy" in Lawrence's
house.) Lawrence and Garner were arrested, held for 24 hours, and
ultimately fined $200 after pleading no contest to the charge of
sexual deviation. The two men later challenged the constitutionality
of their conviction in the Texas Court of Appeals and in the Texas
Criminal Court of Appeals, claiming it violated their rights to
privacy and to equal protection of the laws. Neither Court agreed.
Last December, the U.S. Supreme Court decided to hear the case.
Most observers predict that the Court will strike down the law,
though there's disagreement about the grounds on which the Court
might make its decision and how far-reaching it will be. Oral
arguments are due March 26.The legal and constitutional arguments around this case are
complicated and fascinating. But, in some ways, they are secondary.
The most obvious questions surrounding Lawrence v. Texas are simple
ones: What is actually wrong with sodomy? Why is it immoral? And
why is it still illegal in 13 states and in many countries around
the world?

These are basic questions our culture has avoided. For a long time,
the immorality of sodomy was regarded as so self-evident it didn't
bear examination. Then, in the newly tolerant world of the last few
decades, the issue simply disappeared. For those who disapproved of
homosexual sex, or of non-procreative forms of sex between
heterosexuals, the subject was so distasteful it was passed over in
silence. Since the laws had rarely been enforced against
heterosexuals, there was no sense of urgency about their repeal.
Even gay rights advocates tended to avoid the subject:
Homosexuality, these advocates argued, was not about sodomy as
such. It was about love and friendship and relationships and
family.

From a gay rights standpoint, you can see the benefits of this
strategy. Reducing love, friendship, passion, and
companionship--the critical elements of most gay relationships--to
a simple physical act is simplistic. We'd never talk about
heterosexual marriage primarily in terms of vaginal intercourse or
merely sexual needs; it would slight the depth and variety of the
heterosexual relationship. Nevertheless, it remains a simple fact
that a large amount of the opposition to gay equality (especially
among heterosexual men) comes from a visceral association of gay
relationships with male sodomy. And, indeed, from the beginnings of
our cultural discomfort with homosexuality, almost the entire
legacy of stigmatization has focused on one thing only: the illicit,
vile, unmentionable "crime against nature," which the law has long
designated as the definition of homosexuality itself. In some ways,
then, a new focus on sodomy is welcome. It offers us an opportunity
to come to grips not only with the real nature of homosexuality but
also with the real nature of those who wish to retain and even
advance its stigmatization. And it provides an occasion not simply
to defend negatively the right to private, consensual sodomy, but
to defend positively its morality as well.

The morality of sodomy, of course, is inextricable from its
etymology. In the Book of Genesis, Sodom is a city uniquely
condemned by God for its waywardness. Its sins merit utter
destruction. But what are those sins? Alas, the text is not
specific. Most modern scholars believe the original sin of Sodom
was a refusal to be accommodating to travelers. Others believe it
might have been the sin of rape. The Book of Ezekiel explains that
Sodom and "her daughters had pride, overabundance of bread,
abundance, and leisure, but they did not extend their hand to the
poor. They were raised up and committed abominations before me."
Even in the New Testament, Sodom is condemned in terms of its
connection with "uncleanness" and "adultery." When the Book of
Leviticus condemns men who lie with men, no reference is made to
Sodom itself.

So how did the ironclad connection between gay male sex and the
divine destruction of Sodom get made? Emory University theologian
Mark Jordan's book The Invention of Sodomy in Christian Theology
(written while he was a tenured professor at Notre Dame) is the
deepest recent exploration of the issue. From the beginning, Jordan
argues, non-scriptural sources associated Sodom with a variety of
sins: pride, disobedience, inhospitality, and sexual license. It
was Augustine who in the fourth century went further, linking the
place to stupra in masculos (debaucheries in men) and flagitia
contra naturam (violations against nature). But, even in Augustine,
the sexual sins of Sodom were not exclusively to do with same-sex
sex. They were to do with sexual license, abandon, and what became
known in Latin terminology as luxuria, the sin of worldly excess,
incorporating gluttony and drunkenness and general self-
indulgence.

It's worth noting, then, that from the very beginning sodomy and
homosexuality were two categorically separate things. The correct
definition of sodomy--then and now--is simply non-procreative sex,
whether practiced by heterosexuals or homosexuals. It includes oral
sex, masturbation, mutual masturbation, contraceptive sex, coitus
interruptus, and anal sex--any sex in which semen does not find its
way into a uterus.

So it's perhaps unsurprising that Jordan's research doesn't discover
the actual nouns "sodomy" and "sodomite" until the eleventh
century. The first and most influential polemic against it was the
hermit monk Peter Damian's Book of Gomorrah. Given the period's
expansive definition of sodomy (it did, after all, include
masturbation), it's not surprising that Damian believed it was
rife. But his particular fixation--which has persisted in religious
teachings ever since--is with same-sex male sodomy. This is partly
because Damian is most concerned with sodomy as a clerical vice,
the ubiquity of which among priests he thought threatened the
integrity of the Church. But what's fascinating about Damian is his
struggle to understand the nature of the sodomite. He had no
understanding of homosexuality, which even the Church now describes
as an "innate" facet of human personhood. And so he keeps bumping
up against the apparent ineradicability of the vice. All sins,
after all, are redeemable in the eyes of God. But this sin seems
immune to change. So Damian lays almost no emphasis in redeeming
sodomites but, rather, focuses on purging them. This is where the
analogy to Sodom comes in and why Damian seems so intent on
connecting this vice to the ancient city. Because sodomites seem
consumed by their desires and unable or preternaturally unwilling
to change, the only possible response to them is damnation. Indeed,
Damian favors the death penalty for such behavior, in line with
Leviticus. The logic seems to be that, since these people cannot
change, they must be destroyed, just as Sodom was destroyed, and
that destruction is a vital reaffirmation of the divine order.

This linkage soon became an accepted part of Christian doctrine with
regard to sodomy. And the consequences couldn't be starker. In
Jordan's words, "Peter Damian's central address to the Sodomite is
in fact and rather clearly an exhortation to someone to step
forward for execution." Like Jews, whose persistence brought into
question the universal claims of Christianity, so sodomites, in
their dogged resistance to change, appeared as a living rebuke to
the universal demands of creation. So, gradually, what might
otherwise have been seen as one troubling subcategory in the sins
of sexual excess, one variation on the broader theme of luxuria,
gathered steam as a sin so great and so horrifying that it couldn't
even be spoken of. To get an idea of how out of proportion the
detestation of sodomy became, Jordan assessed the various
confessional manuals of the very early Middle Ages. These were books
designed to guide confessors in the hearing of penitents. One
popular text, written by Paul of Hungary, gave instructions on how
to judge and absolve every sin known to man--from pride to sloth to
envy. But the subcategory of sodomy (dealt with under the rubric of
luxuria) amounted to 40 percent of the entire text! It took up more
space than anger, sloth, envy, pride, and gluttony combined.

The root of all this is the medieval notion that it is a rebellion
against God for semen to be ejaculated outside a womb. This idea
sprang in part from medical notions that sperm itself contained all
the ingredients necessary for human life. The conflation of sperm
with embryos--making masturbation indistinguishable from
abortion--rested also on the notion that women were merely
defective males, whose bodies contributed nothing to new life but a
temporary harbor. Indeed, in many medieval texts, the definition of
sodomy also included procreative sex in which the woman is on top
of the man, violating the "natural" supremacy of men.

Thomas Aquinas, the most influential of medieval theologians and
whose work is still the basis of "natural law" theology, took the
depravity of sodomy even further in his thirteenth-century
masterpiece Summa Contra Gentiles: "After the sin of homicide
whereby a human nature already in existence is destroyed, this type
of sin appears to take next place, for by it the generation of
human nature is precluded." Second only to murder! This is partly
because sperm was believed to be embryonic but also because "in
sins against nature, in which the very order of nature is violated,
an injury is done to God himself, the orderer of nature." While
Aristotle, 16 centuries earlier, had viewed erotic acts between men
as sins of natural human disorder as opposed to the subhuman
practices of cannibalism or bestiality, Aquinas conflated all of
them.

These, then, were just some of the early Western arguments about
sodomy. And, though many of them have been shown to be based on bad
science (e.g., the equation of sperm with embryos), others have
endured. Some of this is not surprising. The argument that sodomy
is unnatural, for example, carries intuitive weight. After all, if
sex is functionally or ideally for procreation, sex with no
possibility for procreation is always going to be teleologically
problematic. But the weight of the hostility to it, the way in which
it is singled out for intense hostility, the manner in which even
mentioning it is regarded as dangerous, and the fact that it seems
largely beyond the capacity of God to forgive--all these elements
are not so easily explained. The notion that 40 percent of a
Christian confessional treatise should be devoted to an issue that
Jesus fails to mention once in the Gospels should strike the
objective reader as odd. Ditto the comparison of non-procreative sex
to murder. Part of it may come from simple heterosexual
incomprehension at the idea of same-sex attraction. Part perhaps
from a particular concern among priests and monks about sodomy's
popularity within their own ranks. Part also from some kind of
visceral heterosexual-male aversion to same-sex sodomy. But,
whatever the reasons, the foundations were set for the modern
world's recourse to criminal law to back up this theological
aversion, a recourse that is reverberating even today.

In 1533, sodomy became a formal crime in England for the first time,
as Henry VIII incorporated what had previously been exclusively
ecclesiastical legalities into civil law. The early American
colonies absorbed this legal precedent to varying degrees, with
Massachusetts, for example, adopting a law against man "sleeping
with mankind" as early as 1641. In most cases, the early colonies'
laws made no distinction between same-sex sodomy and sodomy between
a woman and a man, and the usual punishment was death, although it
doesn't appear to have been implemented very often. In fact, from
the beginning, there was a huge discrepancy between the rhetoric
behind such laws and the willingness to enforce them--perhaps an
indication of how extreme the phobia had become and how unrelated
to reality it was. Sodomy laws in the United States remained
virtually unchanged until the early part of the last century, when
they were expanded in almost all cases to include oral sex. Most
recognized no marital exclusion from prosecution; and, in most
cases, no right to privacy trumped legal culpability. By the
mid-twentieth century, almost all state sodomy statutes added
cunnilingus to their understanding of "crimes against nature";
Oregon and Maryland were able to outlaw mutual masturbation under
the same rubric of "perverted practices." A few states even
experimented with the forced sterilization or institutionalization
of sodomites.; "'Are those with an 'orientation' towards rape to be
let off merely because they allege that the act of rape is
`irresistible' to them?' Burger wrote in a letter to Justice Lewis
Powell during the Hardwick deliberations. 'Are we to excuse every
'Jack the Ripper?'"

But, as attitudes toward sexuality gradually liberalized in the
latter part of the century, the legitimacy of sodomy laws waned, as
did their enforcement. In 1971, four years after Britain famously
legalized private, adult consensual sodomy, 47 states still
retained their long-standing sodomy laws. But, three decades later,
only 13 states (plus Puerto Rico and the military) retain them.
This liberalization was by no means steady: The biggest reality
check came in 1986 with the now-famous Bowers v. Hardwick case. A
gay couple had been arrested in a private home for consensual
sodomy; many observers predicted the Supreme Court would rule such
arrests unconstitutional. After all, the Court had previously ruled
in Griswold v. Connecticut that married couples had a right to use
contraception--i.e., practice non-procreative sex, a.k.a. "sodomy"-
-in their own homes. It had also recognized a right to privacy in
the choice of a woman to have an abortion. But, when it came to the
right to homosexual non- procreative sex in private, the Court drew
a distinction. Chief Justice Warren Burger's concurrence to the
decision expressed the reasoning behind the ruling:

Decisions of individuals relating to homosexual conduct have been
subject to state intervention throughout the history of Western
civilization. Condemnation of those practices is firmly rooted in
Judeao-Christian moral and ethical standards. Homosexual sodomy was
a capital crime under Roman law. ... [Eighteenth-century English
legal scholar Sir William] Blackstone described the `infamous crime
against nature' as an offense of `deeper malignity' than rape, a
heinous act, `the very mention of which is a disgrace to human
nature' and `a crime not fit to be named.' ... To hold that the act
of homosexual sodomy is somehow protected as a fundamental right
would be to cast aside millennia of moral teaching.

Burger dismissed any notion of homosexual orientation as a part of
human nature and derided any comparison to private heterosexual
conduct as absurd. "Are those with an `orientation' towards rape to
be let off merely because they allege that the act of rape is
'irresistible' to them?" Burger wrote in a letter to Justice Lewis
Powell during the Hardwick deliberations. "Are we to excuse every
'Jack the Ripper?'" (Burger's correspondence was unearthed and
published by Joyce Murdoch and Deb Price in their indispensable
book, Courting Justice: Gay Men and Lesbians v. the Supreme Court.)
Justice Byron White, who wrote the decision, regarded the whole
idea of a homosexual right to privacy as "facetious." He treated
the case not as a matter of sodomy as such but of homosexuality,
refusing to say whether heterosexual sodomy was equally without
protection under Georgia's law. When Professor Laurence Tribe,
representing the plaintiffs, talked of the sanctity of a person's
home being invaded by cops policing homosexual activity, Powell was
offended. "I must say that when Professor Tribe refers to the
`sanctity of the home,' I find his argument repellent," Powell
spoke into his Dictaphone as the case was proceeding. "`Home' is
one of the most beautiful words in the English language. It usually
connotes family, husband and wife, and children--although, of
course, single persons, widows and widowers, and others also have
genuine homes." But homosexuals? Inconceivable to Powell. Such was
the legacy of the sodomy laws and the culture and view of human
nature they represented. The fact that Georgia's law was rarely if
ever enforced against heterosexuals raised no red flags in the
majority of the Court's minds.

Indeed, it was precisely the greater sexual liberalism of the day
that ironically led the idea of sodomy to be radically narrowed in
scope--and applied solely to homosexual sex. Worried that
prohibiting sodomy as such might intrude upon the privacy of large
majorities of their heterosexual citizens, and that enforcing such
laws exclusively on homosexuals might lead to equal protection
challenges, some states--starting with Kansas in 1969--amended
their sodomy laws to explicitly apply only to homosexuals. Perhaps
the most spectacular example took place in Texas. In 1973, Texas
legalized heterosexual anal and oral sodomy, along with bestiality,
but simultaneously fashioned a new criminal law directed solely at
gays. The law was specifically defended as late as the 1990s by
then-Governor George W. Bush. Three other states--Kansas, Missouri,
and Oklahoma--have such discriminatory laws as well. Their
constitutionality will be what is at issue in this spring's Supreme
Court ruling.

But constitutionality, history, and even religious tradition still
don't answer the more fundamental question: Why exactly is sodomy
immoral? There is little doubt that Jewish and Christian scriptures
prohibit such sexual practices. But they also prohibit divorce,
which is now legal across the Western world. And the same medieval
religious tradition that fixated on sodomy was also riddled with
anti-Semitism and opposition to usury. If the last two prohibitions
have been abandoned as mere prejudice, why not the first? The
relevant question when we are addressing the maintenance of secular
laws or social disapproval of sodomy is therefore not: Has it
always been so? But rather: Why is it so?

The fundamental answer is that it is "unnatural": It violates the
purpose of human sexuality, which is designed to foster
procreation. At some level, that argument surely makes sense. There
is something unique and miraculous about the connection between
male-female sex and the creation of new life. Its connection to a
marital structure in which that new life can be nurtured, protected,
and elevated is also one that is obviously vital to defend.
Catholic thinkers have developed the most elaborate modern doctrine
on this subject. That doctrine affirms something life-giving and
important: the nexus between sex, marriage, and family. As a symbol
of what sexuality can be about, indeed what it is ultimately about,
this linkage makes moral and theological sense. It also makes
social sense. The data that children are better adjusted when they
grow up in stable, nurturing, traditional homes is overwhelming. It
makes all the sense in the world for a society to find a way to
celebrate and protect this arrangement for, if nothing else, the
benefit of the next generation.

The trouble comes when this vision of what sex can be about becomes
an instruction about what sex can't be about. To say that sexual
activity reaches its heights within a procreative marital act is
not the same thing as saying that all other variants of sexuality
are immoral, let alone worthy of divine damnation along the lines
of Sodom. Even within perfect, Catholic, procreative marriages,
after all, non-procreative sexual activity is inevitable. For some
periods within a woman's menstrual cycle, sex cannot be procreative.
Throughout pregnancy, sex cannot be procreative. After menopause,
sex cannot be procreative. Moreover, unless people are married as
children, there will always be a period of adolescence in which
sexual capacity will far outstrip any ability to restrict it to
procreation alone. These are simply facts. Human sexuality can
indeed be channeled. But the standard that it must only ever be
directed to procreation is simply one that almost no human being can
ever fully live up to. In fact, the whole concept of an exclusively
procreative sexuality, however beautiful in theory, is simply
meaningless in practice. It does not exist. It has never existed.
It cannot exist. Sodomy, in its broad, original sense, is
inextricable from being a sexual human.

Indeed, one could make the case that sodomy is biologically
hardwired. Even in the course of an ideal-type procreative
marriage, untold populations of sperm will be "wasted," along with
any number of eggs ready to be fertilized. The amount of sperm a
male produces cannot even remotely be exclusively directed toward
reproduction. Those who argue that sodomy is immoral therefore have
to acknowledge that nature itself has built in non-procreative
sexual production of sperm and eggs to a ridiculous degree. There's
an obvious reason for this: By making human males produce so much
sperm, much of it superfluous, nature maximizes the odds of some of
it leading to new life. If this seems paradoxical, try this thought
experiment. Imagine a parallel universe in which a human male has,
say, one ejaculation per year. Suddenly the prohibition against
sodomy makes far more sense. Such a precious and rare opportunity
to procreate should surely not be wasted. But then look how far
that universe is from our actual one. The average adolescent male,
at the peak of his sexual drive, might ejaculate several times a
day. If you are drawing logical inferences from nature itself,
which is in part the basis of natural law, it seems to me that
nature is far more accepting of sodomy than the religious and moral
authorities would ever have us believe.

Moreover, to treat human sexuality as entirely instrumental to the
production of children surely demeans it. A marital sexual act,
engaged in for reasons of passion, love, commitment, or mutual
comfort, is not rendered meaningless or immoral if it doesn't
happen to produce another human being at the end of it. To say
otherwise is to reduce human beings to reproductive animals and the
meaning of their sexuality to a purely functional dimension. The
body, after all, is a complex thing. To speak of any part of it as
having a single and exclusive purpose, in the manner of Aquinas, is
to reduce the complexity of human experience to the relative
simplicity of an animal. Is an eye being used immorally if you use
it not see but to wink? Or a mouth somehow deployed immorally if we
use it not to eat or drink or breathe but to smile?

Aware of the crudeness of the Aquinas position, today's natural law
theorists, in a new twist, have dropped his insistence on
procreation as the sole criterion by which sexual interaction can
be morally judged. They now argue not from what appears to be in
nature, as understood by contemporary or even medieval science, but
what they posit as the "natural good" of marriage. The point of
sexual activity, they now assert, is not just procreation but the
unitive experience of marriage itself--the permanent bodily fusion
of two human beings of the opposite sex. The actual desires or
sexual orientations of human beings are not morally relevant. Sex
is about the natural good of marriage, and all human beings must
adhere to that natural good or disavow sex altogether.

So sex is no longer about reproduction and nothing else. It's about
marriage and nothing else. "The union of the reproductive organs of
husband and wife really unites them biologically," Catholic
theologian John Finnis argues. They become maritally, biologically
one, and, if they put any barriers between them in their sexual
acts--condoms, for example--they are violating that biological
unity and destroying their marriage. Moreover, because marriage
changes the very identity of a person, non-procreative sex leads to
what these theologians call the human being's moral
"disintegration."

Notice how this new form of natural law, while trying to avoid
reducing human beings to mere reproduction factories, nevertheless
ends up exactly where we began. Even in a marriage, let alone
outside of it, oral or anal or contraceptive or mutually
masturbatory sex is still immoral. Whereas, in earlier natural law,
marriage seemed to be a regrettable but necessary way to restrain
the evil of sexual desire, the new natural law places marriage
front and center and sees procreative sex as the critical and
positive practice that makes marriage real.

This new doctrine is further amended in an amicus brief filed by two
eminent Catholic thinkers in the upcoming Lawrence v. Texas case.
In Texas, defenders of criminalizing same-sex sodomy face what
might seem an insurmountable obstacle. They have long claimed that
sodomy is wrong, whoever practices it-- heterosexuals or
homosexuals. But the Texas law only polices sodomy when practiced
by homosexuals. Amazingly, the Catholic authors of the brief,
Robert P. George and Gerard Bradley, find a way to justify this:
"The critical difference upon which the legal distinction rests is
not the raw physical behavior but the relationships: same-sex
deviate acts can never occur within marriage, during an engagement
to marry or within any relationship that could ever lead to
marriage. Physically similar sexual acts between married persons
are constitutionally protected. Physically similar acts between
unmarried persons of different sexes occur within relationships
which Texas may wish to encourage, either as valuable in
themselves, or because they could mature into marriages, or both.";
"This defense of premarital sex from some of the most orthodox
Catholics on the planet!"

So sodomy is not only now legally tolerable within heterosexual
marriage, it is even tolerable outside marriage, as long as the
practitioners are heterosexual and can therefore be regarded as
engaging in a relationship--even if only a one-night stand--that
could conceivably one day lead toward marriage. George and Bradley
even go so far as to say that such nonmarital, sodomitic
relationships between heterosexuals could even be deemed by civil
authorities as "valuable in themselves." This defense of premarital
sex from some of the most orthodox Catholics on the planet! George
and Bradley then provide an additional practical reason for
enforcing sodomy statutes against gays but not against straights:
"Texas could reasonably conclude that criminal prosecution is too
blunt a tool with which to distinguish along the spectrum of
opposite- sex relationships, all potentially marital and many
verging on or preparing for the strictly marital. Not wishing to
intrude upon, damage, and perhaps destroy valued and incipiently
marital relationships, Texas could reasonably decide to leave all
these opposite-sex relationships undisturbed by the criminal law."

In other words, criminalizing sodomy as such, without taking into
consideration the relationship in which such sodomy takes place, or
how such sodomy could one day lead to marriage, is too crude a
legal framework. It would also be impossible to enforce. Imagine a
police force required to make sure that every act of heterosexual
cunnilingus is monitored and criminalized. It's simply impractical.
But, because there are far fewer homosexuals and they are more
identifiable, the law can be used to punish them and them alone.
And, because their relationships can never be marital and therefore
are of no social use, there's no social cost incurred when cops
"intrude upon, damage, and perhaps destroy" such relationships.

The same reasoning occurs within the new natural law theology as
well. Here again, sodomy is officially forbidden, but, when you
look more closely, you see that it is only effectively forbidden to
gays. What if, for example, a marriage cannot naturally or
biologically conform to the demands of non-sodomitic sex? What if a
spouse is infertile or post-menopausal? You might think these would
sadly remain outside the possibility of marriage as the good defined
by the new theologians, alongside homosexuality. But no. In these
cases, non-procreative sex acts are still okay as long as they
conform to what George calls "the reproductive type (whether or not
... they are intended to be, or even can be, reproductive in
effect)." In other words, as long as the couple is mimicking
procreative sex, they're okay. Even if they have no intention of
being procreative, it's okay. Even if they know their act is not
procreative, it's morally fine. Non-procreative sex is now
permissible in a whole variety of circumstances, as long as you're
heterosexual. The Church's modern doctrines-- in a curious echo of
Texas's exclusively anti-gay sodomy law--are designed not to ban
sodomy from human sexuality but to ban homosexuals from sexual
dignity.

What the George-Bradley brief shows is how the principled stand
against all sodomy--however implausible--has now essentially been
abandoned as a basis for law in modern society, even by its most
fervent defenders. What's left is merely hostility toward
homosexuals. Logically, of course, heterosexual sodomy should be
more stigmatized than homosexual sodomy. A man and a woman, after
all, have a choice to procreate or not to procreate; two women or
two men do not. If you're trying to frame the law to encourage
procreation, why only apply it to those who cannot procreate at all
while removing such an incentive for the only group for whom such
an incentive makes sense? Just as the intense prohibition on sodomy
seems to have emerged in part from a medieval fear and
incomprehension of homosexuals, so it has ended up centuries later
in exactly the same place: as a means not of upholding a universal
morality but of maintaining a stigma against a single class of
persons.

As a simple empirical matter, we are all sodomites now, but only
homosexuals bear the burden of the legal and social stigma. Some
studies have found that some 90 to 95 percent of heterosexual
couples engage in oral sex in their relationships, similar numbers
use contraception, and a smaller but still significant number
practice anal sex. We don't talk about this much because we respect
the privacy of intimacy. The morality of sex in today's West is
rightly one in which few public moral judgments are made about any
sexual experiences that are private, adult, and consensual. Within
these parameters, non- procreative sex is simply the norm.

But to say they're the norm is perhaps too defensive. The norm is
also, many have come to understand, a social, personal, and moral
good. It is hard to see why, for example, sexual pleasure, fantasy,
and escape are somehow inimical to human flourishing--and there's
plenty of evidence that their permanent or too- rigid suppression
does actual psychological and spiritual harm. Relationships that
include sexual adventure and passion and experimentation are not
relationships of "disintegrated" people but relationships in which
trust is the prerequisite for relief, release, and renewal. The
meaning of these sexual experiences is as varied as the people in
them. And there are many contexts in which to understand these
sexual experiences other than as purely procreative.

You can think of sex--within marriage and in other relationships--as
a form of bonding; as a way to deepen and expand the meaning of
intimacy; as a type of language even, where human beings can
communicate subtly, beautifully, passionately, without words. And,
in a world where our consumer needs are exquisitely matched by
markets, in which bourgeois comfort can almost anesthetize a sense
of human risk and adventure, sex remains one of the few realms left
where we can explore our deepest longings, where we can travel to
destinations whose meaning and dimensions we cannot fully know. It
liberates and exhilarates in ways few other experiences still can.
Yes, taking this to extremes can be destructive. And yes, if this
experience trumps or overwhelms other concerns--the vows of
marriage, the trust of a faithful relationship, the duty we bear to
children--then it can be a social harm. But the idea that
expressing this human freedom is somehow intrinsically and always
immoral, that it somehow destroys the soul, is an idea whose
validity is simply denied in countless lives and loves.

But, if many of us--gay and straight alike--have absorbed this new
sexual consensus, we still deny it in our legal and social
treatment of homosexual sex. The convolutions that legal
authorities now have to go through to justify this discrepancy are
getting more and more elaborate and less and less convincing. At
some point, the unfairness of this must surely impinge itself on
our collective consciousness. The maintenance of sodomy laws is but
one bookend in this anachronistic structure; the other is marriage
itself. One reason there is such fierce resistance to the repeal of
sodomy laws is that the supporters of such laws fear that, once
those laws are removed, there will be essentially no legally
relevant difference between heterosexual marriages and homosexual
relationships. The two issues might be legally separate--as we can
see by the many states that have no sodomy laws and yet retain
exclusively heterosexual marriage laws. But, logically, this
discrepancy makes less and less sense. Both gay and straight
relationships in our culture are now primarily sodomitic in their
sexual practices. Both adhere to the general principles of
equality, adulthood, privacy, and consent that have become our de
facto social norms for adult relationships. Within both straight
and gay relationships, there is a wide spectrum of conformity to
monogamy, child-rearing, social responsibility, and even gender
roles. As the years go by and as legally protected same-sex
relationships mature as a social institution, the differences that
remain are slowly diminishing.

Yes, there are psychological and social distinctions between these
types of relationships. Lesbian relationships--which make up the
majority of same-sex civil unions in the only state where such
unions are legal, Vermont--tend to be more monogamous than many
heterosexual relationships, and they tend to house more children
than gay-male relationships. Gay-male relationships tend to be less
monogamous than their lesbian and heterosexual counterparts.
Heterosexual relationships, for their part, also span the
gamut--from traditional, lifelong monogamy to serial marriages and
multiple divorces to discreet philandering on the parts of many.
There are even explicitly open marriages or, in some ethnic
subcultures, hyper-traditional arranged ones. In our multicultural
world, the differences between an arranged marriage between
immigrants in a Maryland suburb and a baby-boomer third marriage in
Tribeca are easily as great as those between gay and straight
couples. Ditto the differences between a yuppie power couple with
no children and apartments in multiple cities and a home-schooling
family of ten in the Rocky Mountains. Such diversity doesn't lead us
to make legal distinctions between the validity of the marriages
involved. In fact, the extraordinary diversity of the content of
marriages makes us even more concerned to provide some overarching
and unifying social and legal uniformity. And, once you have
removed the criterion of sodomy as the distinctive difference
between gays and straights, and between marriage and non-marriage,
you can see how arbitrary both sodomy laws and laws forbidding gay
marriage actually are.

We live in a world, of course, where the past obviously matters. The
tortured history of the persecution of homosexuals, structured
around a deep and often hysterical aversion to sodomy, looms over
us still. But history isn't destiny. And unreason isn't a good
basis for law. Perhaps this year will finally see the U.S. Supreme
Court assess not the power of inherited fear but the illogic of
inherited discrimination. Perhaps it will find a way, as it has
with other marginalized peoples in the past, to liberate a whole
class of persons not merely from the stain of a dark and painful
persecution but into the possibility of a more humane future: to
give human desire meaning, gay love structure, and sex for all of
us the freedom and dignity it has so long been denied.

By Andrew Sullivan

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