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home of the bad touch
Issue 17.7: abuse
Posted: March 4, 2002

Where It's Safe to Sodomize

Matthew Lippert


Not long ago, there was a time when blowjobs were felonies in this country, and not just if you were the president. Yes, sodomy, often defined in legal language as "sexual contact between the genitals of one person and the mouth or anus of another," was illegal in every state in our nation merely forty years ago. In some places, at certain times in American history, sodomy was even a capital crime.

In 1962, Illinois made history when it became the first state to abandon its anti-sodomy law. Many other states have since followed suit, but not all of them. In 1982, just a year before I was born, Mr. Michael Hardwick (no, I am not making this man's name up) of Georgia was arrested, in his own bedroom, for sodomy, a transgression which carried a prison sentence of up to twenty years. Mr. Hardwick was caught engaging in a homosexual sex act and was prosecuted under Georgia's anti-sodomy law. His case went all the way to the Supreme Court, which ruled on the matter in 1986. In the case, known as Bowers v. Hardwick, the Supreme Court ruled that "The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. Any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable."

The instantaneous focus of the Court on homosexuality is interesting. The state law in question was certainly not limited to the prohibition of homosexual activity. It applied to any form of sodomy, regardless of the genders of the participants. In his dissenting opinion to the 5-4 ruling, Justice Harry Blackmun wrote that the Supreme Court's "almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used."

Were a few of the justices projecting, perhaps? Consider: current Chief Justice William Rehnquist was an Associate Justice in 1986. He ruled with the majority in the Bowers case, and was seen presiding over the impeachment trial of President Clinton in a robe decorated with gold stars that he designed himself. He was inspired to do so by a costume he saw in a Gilbert and Sullivan production. A little fruity, eh?

Besides shedding light on the homophobia ingrained in the American justice system, the Bowers decision revealed the fact that the government can enter your bedroom whenever it wants, without violating the United States Constitution. If you happen to be in the wrong place at the wrong time, you too can be the subject of your very own Kenneth Starr investigation, right to privacy be damned.

Interestingly, Georgia's anti-sodomy law is no longer enforceable due to a subsequent case. However, nine states, Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia (as well as Puerto Rico), still criminalize all forms of sodomy, and Kansas, Oklahoma, and Texas all have laws that are specific to homosexual activity. There are another three states with sodomy laws that may or may not be enforceable, due to a pending lawsuit in Massachusetts, inconsistencies in the case law in Michigan, and a recently narrowed court interpretation in Missouri.

When I was a little kid, I always thought that my love of butt sex was none of the government's business. Oh, how naive I was! I forgot that in the United States, sex is everybody's business, especially if it's "weird." The next time you find yourself getting a hummer, be glad that you live in New York and no longer run the risk of being put in jail. That should make the experience that much more enjoyable.

For more information, go to www.aclu.org or www.findlaw.com.