Civil Liberties

Illegal Maneuvers


As the House Judiciary Committee returns to its impeachment inquiry, President Clinton's defenders will be keen to point out that, unlike Nixon, he did not lie to cover up illegal activity. After all, Clinton's affair with Monica Lewinsky was not against the law.

In Washington, that is. But as the New Orleans Times-Picayune notes, "if they did in a French Quarter hotel room what they did in the Oval Office, they could face five years in prison. And not for perjury."

In Louisiana, oral sex qualifies as a "crime against nature," a felony. Virginia, just across the Potomac from the scene of Bill's sexual encounters with Monica, has a similar statute, with a penalty even more severe: five to 20 years in prison.

Seventeen other states also criminalize specific sex acts between consenting adults. Like Louisiana and Virginia, most ban both oral and anal sex, whether or not it involves people of the same gender; five states single out homosexual activity.

At one time all 50 states had so-called sodomy laws, but since the 1960s one after another has been repealed or overturned. A state judge in New Orleans recently heard arguments against Louisiana's law, and civil liberties groups are challenging sodomy statutes in Arkansas, Georgia, and Puerto Rico as well.

These challenges emphasize state constitutional claims, because the U.S. Supreme Court ruled in the 1986 case Bowers v. Hardwick that sodomy laws do not violate the sphere of privacy protected by the 14th Amendment. That case, in which a Georgia man was arrested for sexual activity in his own home, showed that it's not safe to assume that such statutes are no longer enforced.

Even if they avoid prison, people who violate sodomy laws can lose their professional licenses, their eligibility for public office, and custody of their children. Such concerns are especially acute for homosexuals, who are more likely to engage in proscribed activity and more likely to be arrested when they do.

Sodomy statutes seek to regulate the details of our most intimate behavior, and it's hard to imagine a more odious intrusion by the state into matters that should remain private. Yet many conservatives are sad to see them go.

Last year, after the Montana Supreme Court overturned that state's ban on homosexual activity, the Rev. Lou Sheldon of the Traditional Values Coalition told the Associated Press that such prohibitions send an important message: "The sodomy law tells us that heterosexuality is a preferred status in society." The Family Research Council's Robert Knight agreed: "I would think that instead of taking laws off the books, there would be a public outcry to have them put back on in all 50 states."

Such comments obscure the fact that sodomy laws generally apply to heterosexuals as well as homosexuals. Indeed, contrary to the popular impression, these statutes do not really embody biblical norms: While the Bible explicitly condemns male homosexuality, it says nothing about lesbians or about heterosexuals who venture beyond vaginal intercourse.

The real question, however, is not what a particular religious tradition requires but whether it's appropriate to forcibly impose such requirements on nonbelievers. It is one thing for Sheldon and Knight to argue that homosexuality is immoral, quite another for them to insist that the law reflect that position.

Conservatives are not the only ones obscuring the distinction between persuasion and coercion. For most gay rights activists, the campaign against sodomy laws is part of a broader agenda that includes bans on private discrimination against homosexuals. That fact is bound to alienate many people who might otherwise support the repeal of sodomy statutes.

Laws that forbid discrimination based on sexual orientation prevent individuals from expressing their moral values by, say, refusing to hire or rent apartments to people whose behavior they consider sinful. Such measures go beyond official neutrality to compel acceptance of homosexuality. Instead of enforcing the belief that homosexuality is immoral, the government enforces the belief that it's no big deal.

The desire for a political resolution to this issue was apparent in the testimony for and against Louisiana's sodomy law. The state argued that sexual orientation is chosen and changeable. The law's opponents said it is inborn (or established very early in life) and immutable.

That debate may be relevant in evaluating the moral status of homosexuality. But it need not be resolved to decide whether the government has any place in our bedrooms.