Steven Wishnia

One might think it’s ridiculous that there are laws against oral sex. Who out there is going to pull their head back the moment it crosses an imaginary line south of the navel or north of the thighs, just because the government has declared that flesh a no-lick zone?
Yet there are still laws banning it in 13 states, mostly in the South—nine for everyone, and four that single out gays and lesbians. (If Bill Clinton had taken Monica Lewinsky to a motel room in Virginia, he would have committed a felony.) On March 26, the Supreme Court heard arguments in a challenge to the Texas sodomy law, which outlaws oral and anal sex (as well as the use of dildos and sex toys) for same-sex couples.

The case involves John G. Lawrence and Tyron Garner, who were arrested in September 1998 when police responding to a phony man-with-a-gun complaint burst into Lawrence’s apartment and found the two engaged in anal sex. The complainant, who later served 15 days in jail for filing a false police report, was a disgruntled ex-boyfriend of Lawrence’s, according to one source close to the case.

Lawrence and Garner were charged with violating Texas’ “Homosexual Conduct” law, pleaded no contest, and were fined $200. They appealed, charging that the law violated their privacy and discriminated on the basis of sexual orientation, and won, but a higher court reversed that decision in 2001, holding that “there is no fundamental right to engage in sodomy” and the state could discriminate against gay sex in the interest of “preserving public morals.”

George W. Bush, governor when the case came up, endorsed the law as a “symbolic gesture of traditional values.” Several dozen groups filed amicus briefs on both sides of the issue. The American Civil Liberties Union, the American Psychological Association, the libertarian Cato Institute, and Sen. Alan Simpson (R-WY) oppose the law. A bevy of Christian-right groups like the Family Research Council and Focus on the Family (headed by child-abuse advocate James Dobson), along with three states with similar statutes, filed briefs supporting it. Aside from asserting that non-marital sex acts are not constitutionally protected, the Christian right also fears that “homosexual activists” will use this case to undermine the institution of marriage as “the union of a man and a woman.”

The Supreme Court upheld Georgia’s sodomy law in 1986, in a similar busted-in-the-bedroom case, Bowers v. Hardwick. Lawrence and Garner, represented by the Lambda Legal Defense and Education Fund, are asking the court to overturn Bowers, on the grounds that the law violates people’s constitutional rights to privacy. They also argue that the Texas law’s queers-only limit discriminates against gays and lesbians, and that even if it’s rarely enforced, it’s still used as a basis for discrimination against gays in employment and child-custody cases.

Defenders of the law respond that the government has the right to outlaw what it considers immoral conduct. “There is no protected right to engage in extramarital sex,” Harris County District Attorney Chuck Rosenthal told the Court. They also argue that the law doesn’t discriminate against gays because it applies to conduct, not orientation. “Anybody can commit a homosexual act,” Rosenthal said after the hearing.

That doesn’t make sense, he was told. If you’re turned on enough by people of the same sex to want to have sex with them, you’re either gay or bisexual. If you’re not, you won’t be interested.

Heterosexual men have sex with other men in jail, he replied. “And what if you’re turned on by ten-year-olds? Is that OK?”

Rosenthal is the top prosecutor for Houston and its suburbs, the third-largest local jurisdiction in the nation.

In the Supreme Court, Justices Antonin Scalia and Chief Justice William Rehnquist appeared to be the strongest supporters of the law. “You make it sound very puritanical,” Scalia told Lawrence and Garner’s lawyer Paul Smith, “but these are the laws dealing with public morality.” Meanwhile, Justice Stephen Breyer appeared opposed. “This case is inside the bedroom,” he told Rosenthal. “Why isn’t it something the state has no business in?”

“Texas has the right to set bright-line moral standards,” Rosenthal argued.

“You haven’t given us a rational basis except to repeat the word ‘morality,’” Breyer replied.

There are three possible ways the Court could rule. It could uphold Bowers, preserving states’ power to outlaw non-marital dildo use, anal and oral sex. It could hold sodomy laws unconstitutional, saying that the government has no business in adults’ sex lives as long as they’re doing it in private, with consent, and not for money. Or it could reject the Texas law on the narrow ground that it discriminates against gays. The four centrist and liberal Justices—Breyer, John Paul Stevens, Ruth Bader Ginsburg, and David Souter—are considered likely votes to overturn Bowers. The far-right bloc of Rehnquist, Scalia, and Clarence Thomas is likely to sustain it, which leaves the deciding votes in the hands of Justices Sandra Day O’Connor and Anthony Kennedy.

So what’s all this got to do with weed, anyway, other than that people like to have sex when they’re high, and few people pay attention to the criminal code says when, as Bootsy Collins once sang, “I got the munchies for your love?” The government’s ability to outlaw private “immoral conduct” is the legal basis for the drug laws as well as the sodomy laws, a comparison Rosenthal made when Justice Souter asked him, “What kind of harm can you point to in this case?”

“I think this is the issue that’s most analogous to ours,” observes NORML director Keith Stroup. “It’s about personal freedom. The government shouldn’t be able to get close enough to your bedroom to tell what kind of sex you’re having or what you’re smoking.”

He reflects that when he founded NORML, he would have been surprised to find out that 30 years later, gay sex would be legal in most states while marijuana remained a crime in all 50. The difference, he says, is that a lot more gays than pot-smokers have come out of the closet.

Meanwhile, one wonders whether extra-strength condoms—the kind sold with the image of a monster-muscled man’s torso on the box—will soon be outlawed in Texas as “sodomy paraphernalia.”