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Sodom Might

Why the Supreme Court's sodomy decision is so patriotic

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The Fourth of July came early this year. Eight days early, to be precise, when on June 26 the U.S. Supreme Court reaffirmed the very principles we celebrate every July. And the holiday was celebrated not with fireworks, but a shot across the bow ... for Pennsylvania Sen. Rick Santorum, for the University of Pittsburgh, and for a few other foot- and knuckle-draggers.

The court's ruling this June in Lawrence vs. Texas overturned a previous 1986 decision, Bowers vs. Hardwick, that criminalizing homosexual acts was constitutional. A 6-3 ruling authored by Anthony Kennedy overturned that decision, arguing, "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty & gives them the full right to engage in their conduct without intervention of the government."

That's a sentiment that Thomas Jefferson himself, the author of the Declaration of Independence, could only have admired -- even if he never imagined the "pursuit of happiness" he saw as an inalienable right would include same-sex relationships. As Jefferson put it in an 1816 letter to Samuel Kercheval: "[L]aws and institutions must go hand in hand with the progress of the human mind. ... We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

The nation's founders, see, didn't prove their genius by creating the Electoral College or the bicameral legislature; they proved it by recognizing the flaws of those institutions, by recognizing they didn't have all the answers. They weren't perfect -- there was that whole slavery thing, for starters -- but they had a sense of their own limitations.

That humility is the difference between them and their self-proclaimed inheritors, the Rick Santorums of the world. 

In April, of course, Santorum gave a now-famous Associated Press interview in which he claimed that if the Supreme Court decriminalized homosexual acts, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery, you have the right to anything." After all, if the court upheld "this 'right to privacy,' then why be surprised that people are doing things that are deviant within their own home?"

The bigger surprise is that Santorum thinks he has the right to define what constitutes deviant behavior for other consenting adults. But he's not the only one. In an embittered dissent, Supreme Court Justice Antonin Scalia wrote, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only [if] laws [can be] based on moral choices. Every single one of these laws is called into question by today's decision."

Such remarks beg a question: Maybe state laws against fornication and masturbation should be called into question. Those are, after all, crimes which the vast majority of people reading this newspaper (especially the back pages) have committed.

For now, though, the focus will be on the impact this ruling will have. Will the Supreme Court's ruling, for example, make gay marriage more likely? Will it undermine attempts by Santorum and others to second-guess everything consenting adults do?

Let's hope so. One of the ruling's little ironies, in fact, is that it relies heavily on an earlier Pennsylvania case that was a victory for conservatives: Planned Parenthood v. Casey, a legal challenge to restrictions on abortion promulgated by Pennsylvania's pro-life Democratic governor, the late Robert Casey. The Casey decision was a mixed blessing for pro-choicers -- it upheld both the fundamental right to abortion and many of Casey's restrictions on it -- but Kennedy's ruling takes the best parts, like its assertion that the Court's obligation "is to define the liberty of all, not to mandate our own moral code." The legacy of our Catholic pro-life governor, in other words, now includes laying the legal groundwork for our right to sleep with whom we want.

But the impact of the Lawrence decision will probably not be as great as supporters hope, or as its enemies fear. Prosecutions for sodomy have always been rare; Scalia found only 134 convictions nationwide in the past half-century, and even in Texas the offense is only a Class C misdemeanor. The two men who challenged the law after being arrested for it were each fined $200, plus $141.25 in court costs. That's small change compared to the price gays pay for other inequities that are still legal.

For example, because the University of Pittsburgh refuses to extend health benefits to the gay partners of its employees -- despite public pressure to do so -- gays in Pittsburgh pay a penalty of much more than $341.25 every year just for insurance. And they'll be doing so for as long as Pitt requires life partners to be married in order to receive the benefits -- and for as long as the state prohibits same-sex marriages. Kennedy isn't willing to address such situations; his ruling explicitly denies having a position on "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." No one else is willing to do anything about it either.

In 2002, a Pitt task force conceded, "Most major employers will eventually offer same-sex benefits" and that Pitt "should be a member of that majority." But because of fears the notoriously hidebound state legislature would cut the school's state funding, the task force concluded that offering the benefits now "would not be prudent."

The contrast couldn't be starker. At the national level, the privacy and freedom of consenting adults, both gay and straight, has just been ensured by two gay men living in Texas (no doubt an act of courage in itself) with the guts to stand up for who they are in the highest court in the land. At the local level, meanwhile, Pitt's rich and politically connected trustees skulk in the shadows, afraid to challenge the cut-rate cretins in Harrisburg.

Perhaps Pitt will take courage from the Texas couple's example. Perhaps the legislature will take a cue from the fact that both Kennedy and concurring justice Sandra Day O'Connor were appointed to the court by that conservative icon, Ronald Reagan. If Bob Casey can be conscripted for the cause of sexual liberty, anything's possible.

Still, Santorum's remarks will shore up his backing among conservative hard-liners, who may cite Kennedy and O'Connor's ruling to push for even more conservative judicial nominees in the future. Seventeen years from now a future Supreme Court may reverse Lawrence, just as Lawrence reversed Bowers.

But for the moment, as corny as it sounds, I was proud to be an American this Fourth of July. We took a step, however faltering, toward being what Jefferson envisioned: a shining city upon the hill, where we really are all created equal. And when we finally reach that place, maybe it will look something like Pittsburgh.

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