Getting Rid Of The Sex Police

Wedding announcements track American social history. Once they were the purview of the well-to-do, and the stereotypical division of roles was in the published details: the groom's work, the bride's gown. Point d'esprit, sweetheart neckline, Alencon lace: how quaint it all seems. In the blink of an eye, historically speaking, the dress disappeared and in its place was a working woman, sometimes one who was keeping her own name. The idealized gave way to the real. A previous marriage had ended in divorce. The ring bearer was the 5-year-old son of the bride and groom. And couples of all classes, religions and races eventually smiled out from the pages of the daily papers.

So it said something about how the world works today when newspapers began to run announcements of the commitment ceremonies of gay men and lesbians. Although about 10 percent of America's dailies now do so, The New York Times got the most mileage from the decision because of its position as the industry gold standard. From the beginning it was just as the opponents feared: the same-sex announcements read so very much like the ones that surrounded them that they came close to simply blending in, the union of one well-educated documentary producer and psychotherapist reading very much like another.

That the Times as recently as 50 years ago referred to gay men as "deviants" in its pages and today is willing to report the joyous union of Daniel Gross and Steven Goldstein is a reflection of the ways of the world. Newspapers are essentially conservative in their internal decisions; they do not make social policy, only reflect it once it moves convincingly from the fringe into the mainstream.

The U.S. Supreme Court is not in the business of making social policy either. Nor is its job to reflect it, only to interpret the law intelligently without regard for popularity or prejudice. It conspicuously failed in this mission in 1986 when the justices were asked to rule on the constitutionality of state sodomy laws. From almost any legal promontory, their decision ought to have been clear. Hark back to Griswold v. Connecticut and the right to privacy in intimate affairs; use an equal-protection argument, given that law enforcement has traditionally granted heteros a free pass on conduct that is prosecuted among gay men and lesbians. But strike those statutes down.

Instead the court went the other way. As egregious as the decision was the lack of real jurisprudence in the pamphleteering of the majority opinion, which sounded as if it had been written by Cotton Mather during a particularly dirty-minded phase of adolescence. Years later, Justice Lewis Powell, who tipped the 5-4 balance, said he was sorry he had voted as he had.

So when the court announced recently that it would hear a Texas case that considered the same issue, the announcement suggested that the justices, too, saw the error of the earlier decision and might redress it. Every citizen who cares about what America is supposed to stand for should be rooting for that result. The sodomy laws are part of a dark tradition in this nation; they do not exist, and have never existed, to serve the public weal. They are meant only to demonize and marginalize a class of human beings. In this, their closest corollary is the now reviled Jim Crow laws, which excluded black Americans from hotels and restaurants and consigned them to separate schools and restrooms, not because it served any civic purpose but because it was a way to signal that black men and women were inferior. The sodomy laws may be the last laws standing that exist purely for the purpose of codifying and justifying bigotry.

The story of the Texas case the court is preparing to hear reveals just how such statutes turn a free country into a police state. Two consenting male adults were in the midst of a private act of sexual congress in the apartment of one when the police burst in. The men were arrested, jailed overnight and fined. The police showed up in the first place because of a tip by a neighbor of a "weapons disturbance." The neighbor himself was later jailed, convicted of filing a false report. He could be forgiven for thinking this result unfair, since in his behavior he seems to have been merely mimicking the government, monitoring private acts, targeting individuals on the basis of sexual orientation.

This is simply not supposed to be a country in which the law is a flimsy cover for punishing the unpopular. Nevertheless, America's history has been a history of doing just that, whether to immigrants, religious or racial groups, and then eventually having to admit remorse and self-disgust. (See "Trent Lott: The Apology Tour.") There is an irony in the fact that when newspapers in some states are printing the announcements of civil unions by gay men and lesbians, they are also printing the names of sexual desperadoes, breaking the law in the name of love. To resolve that peculiar dissonance does not require the high court to bow to culture change but instead to return to its own defining principles of fairness and freedom, to turn away from the prejudice that, last time out, substituted prurience for jurisprudence.

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