Commentary: The sad, silly sodomy saga

NEW YORK, July 2 (UPI) -- I think people just like saying the word "sodomy."

It's such an old-fashioned word, the only place it's ever used is in court. And since it derives from the Bible, it's fraught with vivid associations. We don't know EXACTLY what they were doing in Sodom and Gomorrah, but we know the reality TV show would have been too hot for pay-per-view. And while we're on the subject, why is Sodom singled out? Why are there no laws against gomorrism?

Rarely has a Supreme Court decision meant so little, and rarely has the reaction to it meant so much. I was surprised so many media commentators could be so deathly serious about the subject, and yet never tell me exactly what John Geddes Lawrence and Tyron Garner were arrested for. There are many ways to commit sodomy -- two of them in particular compete for popularity -- and I had to read way down into the fine print of Justice Kennedy's opinion to find out what the popular positions are in Houston.

You don't even know -- do you? -- because you've been watching

CNN.

It was anal sex.

My first reaction to the decision was, "Uh, didn't we

already take care of this 20 years ago?" I know I've been reading op-ed pieces about it for at least that long.

Do we really need the Supreme Court to clean up morals codes that, if left alone, would probably fall off the books of their own dead weight? Remember when they had miscegenation laws? Alienation-of-affection laws? Modernity has a way of marching through the penal code and just making that stuff dry up and flake away like dead skin.

After all, before 1961 there were 50 states with sodomy laws. By the time of Bowers v. Hardwick in 1986 -- the case that upheld sodomy laws -- we were down to half that number. And before last week, there were 13 states with sodomy statutes, and only four of them were homosexual-only, the largest of which was my native state of Texas. Obviously the enthusiasm for seeking out sodomites was dying a slow death.

This might be the point, by the way, to discuss the Sandra Day O'Connor flip-flop. For those of you who were trying to figure out her batty-as-a-loon position -- she voted for sodomy laws in 1986 and against them in 2003 -- her logic was as follows. She thinks the only good sodomy laws are the ones in the nine states that forbid it for both homosexuals AND heterosexuals. That way everyone has "equal protection." So presumably if a patriarch of the Presbyterian church was brought up on charges of using a French tickler on his wife, she would vote to uphold his conviction -- just as long as they were rounding up gays on the same charges.

The real perspective on the case came in the middle of Justice Scalia's dissent, where he casually tossed out the fact that, in colonial times, four people were EXECUTED for sodomy in America.

First of all, I hope somebody saved the transcripts on those trials, because that had to be some seriously kinky sex. But second, what illustrates better that relying on precedent in a case like this is pretty much an exercise in barbarism? We're so removed from the Puritan moral codes at this point that we can't even CONCEIVE of a capital crime on morals grounds alone.

But that doesn't answer the basic question, which is: How does a case like this end up before the Supreme Court in the first place? Wouldn't this normally be something handled by the Housekeeping Committee in the state legislature -- the guys who make sure all the duelling laws are taken off the books, and that it ceases to be a crime if you ride your horse on Sunday?

The only person who appeared to be having fun with it was the Chyron operator on CNN. The Chyron is the machine that makes all the little captions at the bottom of the screen, like "Dead Cats in Denver" and "Laci Peterson Gag Order" and "Shoe Mogul Files Chapter 11." On the day of the Supreme Court decision, they kept showing a group portrait of the entire court, in their long flowing robes, and underneath it a Chyron line that read "SODOMY DECISION." But the operator had put the word "sodomy" ABOVE the word "decision," so that "decision" was occasionally covered up by other graphics at the bottom of the screen. Hence we were treated to a very distinguished panel labelled "SODOMY."

I called up my friends immediately. "I think they're asking us to guess which Justice is most likely to avail himself of the liberalized sodomy statutes."

Study their faces carefully. One of them was absolutely beaming with delight, as though he had a guilty little secret, but I won't embarrass him because he was one of the three dissenters.

At any rate, Chyron shenanigans aside, this was a day for apocalyptic predictions and triumphant proclamations.

Moralists predicted that the decision would quickly lead to legalization of incest, bigamy, bestiality, polygamy and prostitution. Ken Connor, president of the Family Research Council, even said the ruling was "classic judicial activism arrogance." Conservatives angry at THIS court? Wow. That's angry.

The people on the winning side were just as grandiloquent in THEIR predictions, though. This was the first step toward legalization of same-sex marriage, as well as guaranteed partner benefits for gay couples, universal gay adoption rights, and parental rights for gays who father children or share sperm or use their brother's donated sperm for a lesbian live-in or whatever other combinations they're able to dream up.

You know what, though? I don't think so. How do you go from saying "The cops can't throw you in jail because they accidentally glimpse you in flagrante aardvarkus," to "Okay, I guess the door's wide open now -- sex with Great Danes is fine with us"? That's just not gonna happen, if for no other reason than that the animal-rights activists would throw a fit.

As for same-sex marriage, the court was silent on the issue. The decision makes no reference at all to whether John Geddes Lawrence and Tyron Garner were a couple or not. They could both be married to women and their sexual behavior would still be protected by the decision, because the only criteria used were that a) they were adults, b) they were consenting, and c) they were doing it in private.

In fact, the most interesting part of the decision was the tortuous and confusing way that Justice Kennedy explained why the court was reversing its decision in the 1986 case. Presumably there's got to be some HUGE change for the Supreme Court to overrule itself, and the court in 1986 had said this: "Respondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do."

So I kept looking for the paragraph in the decision where the new court says, "Homosexual sodomy is a fundamental right. We are quite willing to make it one."

But they don't really say that. What they say instead is that the "due process" clause means you can do anything in the bedroom you want, no matter how disgusting somebody else thinks it is.

Okay, but here's the problem. Due process is supposed to apply to "fundamental rights." And fundamental rights, as Justice Scalia points out in his dissent, are supposed to be rights that are "deeply rooted in this nation's history and tradition." If it's something that falls short of a fundamental right, then it can still be limited by statute --a nd then the Supreme Court is duty-bound to keep its hands off of it.

So the question becomes: Is sodomy deeply rooted in this nation's history and tradition?

Justice Scalia says no it's not, because otherwise we wouldn't have had 300 consistent years of laws against it.

To which I say, if you need to tell people for 300 years to stop having anal sex and they KEEP DOING IT, then it's pretty durn firmly rooted in the nation's history and tradition. What we should do is find those four guys from colonial times who sacrificed their lives for sodomy and commission a statue on the Washington Mall. It could be one of those cool George Segal-type statues like they have in Greenwich Village, with the gay guys clapping each other on the shoulder -- but wearing Plymouth Plantation garb, of course.

Let me explain this case. It's simple.

John Geddes Lawrence and Tyron Garner are two of the

unluckiest guys on the face of the planet. They were going at it one night --let's imagine they had soft lighting and incense and their moods were euphoric -- but, unbeknownst to them, the Harris County police received a report of a "weapons disturbance" in their apartment building.

First unlucky fact: they forgot to lock the door. Second unlucky fact: the investigating cops were so gung-ho that they just barged in. Third unlucky fact: our two lovers were so oblivious to outside influence that they continued to shag even after the police entered the room. Fourth unlucky fact: one of the cops was such a good student at the police academy that he actually REMEMBERED the sodomy statutes, which hadn't been enforced for so long the state of Texas can't come up with a single other case that resembles this one. Fifth unlucky fact: the cop is such a total Boy Scout that he decides to make an actual arrest. Sixth unlucky fact: the cop's captain lets the charges go through. Seventh unlucky fact: the judge fails to throw the case out.

Because let's face it -- how many YEARS could go by before another gay couple was seen having sex in the privacy of their own bedroom by a duly constituted peace officer? I think 50 would be a good rough estimate -- and the law would have been erased by then anyway.

So the Supreme Court sped up time a little bit. Let's not get all bent out of shape about it, and let's not make too many claims about what an earth-shattering precedent it is. I like to think of it as a lexicological exercise. We get to be the last people in human history to use the word "sodomy" in daily life, before it becomes one of those words in the Oxford English Dictionary denoted "archaic, obsolete."

Sodomy sodomy sodomy.

See? It's fun, isn't it?

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Joe Bob Briggs writes a number of columns for UPI and may be contacted at [email protected] or through his Web site at joebobbriggs.com. Snail mail: P.O. Box 2002, Dallas, Texas 75221.