Its only been seven years, since the Supreme Court ruled in Lawrence v. Texas that gay sex was protected by the constitution. I always had this opinion on the opinion. On one hand, I don’t want cops arresting gay people for having gay sex. I figure a police department that has enough time to worry about what two consenting adults do to each other is a police department ripe for some budget cuts (hopefully leading to tax cuts, or at least less speeding tickets). And I work with at least two gay people (that I know of), and I never give them shit about their lifestyle. Yeah, I don’t support gay marriage, but I don’t support workplace discrimination either. Call me a moderate, I suppose. So, so far the Supreme Court hasn’t offended my politics.
But on the other hand, I care about the Constitution and that it be faithfully followed, and the notion that the framers of the Fourteenth Amendment, who were evangelical Christians, were open-minded about homosexuality is laughable on its face. So if I was on the Supreme Court I would have to hold my nose and vote to uphold the Texas law.
One of the key laughable lines in the opinion is when Kennedy, writing for the majority, quotes from Stevens’ dissent in Bowers v. Hardwick, which upheld a similar law in Georgia, saying: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” Kennedy, then says that this opinion “should have been controlling in Bowers and should control here.”
I. Calling Bullshit on Lawrence
So let’s take a moment to make hash of that bit of idiocy.
So, no laws based on morality alone? Then what are they based on? Math? 1 + 1 = freedom of speech? Science? Gravity pulls downward and therefore murder is banned? What exactly is the objective, amoral reason why we ban murder?
No, no, what he most likely means is the old libertarian view that we should have the freedom to do whatever we want so long as we don’t harm anyone else.
Okay, then bestiality is okay, right? Good to know! And hell, if I just want to engage in animal cruelty, I can cite Lawrence, right?
Wait, what you say? The animal counts as “anyone else” for those purposes? Well, its funny you should say that because in Roe v. Wade, the fact that that Supreme Court felt that the fetus was not a “person” was determinative. They said:
The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.
But, hey, since a fetus is not a person, it is entitled to no constitutional protection, or so the Roe court said. So, um, how exactly do you say that a fetus, which in fact is a human being in gestation, is entitled to no rights, but an animal that is not a person by any stretch of the imagination, is entitled to rights?
But let’s back up and say that again. So the mere disapproval of homosexuality doesn’t allow the people to ban it.
Okay, so let’s say two siblings, Sam and Jamie, are having sex together and the police find out. Incest is illegal in most states, so the cops bust them and the siblings say, “hey, this is legal, under Lawrence.”
Now the liberatarian has a ready answer for that. You see, when a brother and sister have sex, their babies are more likely to have harmful recessive genes, and society has an interest in preventing that, so it’s okay to ban that.
Now, first, really? Society has an interest in controlling the genetic make-up of our society? Because that sounds an awful lot like “three generations of imbeciles is enough.” I thought it was generally agreed that the government shouldn’t be in the genetic purity business.
But my example was a bit of head fake. You see Jamie is a man, and Sam is short for Samuel. So these are two brothers having sex. So... that’s ok, right? I mean if the only concern was babies with harmful recessive genes, problem solved, right?
So now you are on the horns of a dilemma: either we don’t really adhere to that libertarian principle, or we say incest is okay, so long as it is gay incest.
By the way, the truth about all of this is that incest is often banned even between people related solely by marriage (step brothers, etc.), or adoption. So in fact Greg Brady cannot sleep with Marsha Brady in most states, and no one thinks that this is a problem. The official logic is that, it is psychologically unhealthy for siblings to sleep together. So we aren’t morally disapproving of a brother and sister having sex, no we are just declaring it psychologically unhealthy. Which strikes me as a difference without a distinction.
But then, if the state can declare an incestuous relationship verboten based on moral disapproval psychological unhealthiness, then why not the ban on gay sex, too?
So are you still convinced that Lawrence is still a well-founded decision?
Like I said, I am not upset that cops are not going to be busting gay dudes for being gay anymore, but it’s not enough to reach the right result, but to reach it the right way. Doing it by pretending the constitution says what it doesn’t, claiming it adheres to a principle that is, arbitrary and not terribly well thought out, is not the right way.
But there is a bigger problem Lawrence and all the sexual privacy decisions face.
II. Lawrence, Sexual Privacy, and Health Care Reform
See, even if you get through all of that still believing in that libertarian idea that so long as your conduct doesn’t affect me, you should be free to do what you want, there is still another problem.
Your being gay now affects me. In fact, all sexual conduct affects me. Depending on what we are talking about, it drives up the cost of health care. And now that health care is a matter of the public sphere, it means that we have the right to control any and all conduct that drives up costs.
I mean we already see that in New York. They have increasingly fascistic laws banning trans-fatty acids, smoking just about anywhere, etc. My joke is that the modern liberal believes that if you say you are about to put a “fag” in your mouth, you better mean a gay man’s dick and not a cigarette.
By the way, liberals, pop quiz. Which of the following was one of our founding fathers more likely to do?
a) smoke a cigarette;
b) have gay sex.
And yet in our modern constitutional scheme, guess which is more protected? You got it. Gay sex. Go figure.
But back to the point. Everything that increases health care costs is now fair game for regulation. Now you can ban all kinds of sexual behavior not because you disapprove of the activity, but because it drives up health care costs.
How much has sexual behavior driven up the cost of health care? Well, it made AIDS possible, for one.
Look, viruses have a balance they have to strike. They want to be virulent and reproduce themselves a lot. But the more virulent they get, the more likely they are to debilitate its host to the point that they can’t transmit the disease. This is why a cold is gentle on you, but a flu kicks your butt a little. A cold is hard to transmit, relative to the flu, so the cold virus needs you up and walking. But the flu does a better job transmitting, so it can be more virulent, making you miss work because it just doesn’t need much human contact to get to the next host. And prior to the sexual revolution in America, guess what? Sexual diseases had a hard time getting around. I mean people were not completely faithful, the fact we even have those diseases today and did have them back then, tells you that. But it just wasn’t the same.
In fact, scientists now know that the AIDS virus has actually been with us for a long time. It just suddenly got virulent. In the late 1970’s. You know, when Americans were sticking their dicks in everything. Look, I’m not blaming these people for it. There is a difference between recognizing causation and blame. And there is causation. We loosened things up sexually and we changed the environment that these viruses lived in. We allowed them to become more virulent without reducing their ability to be transmitted. And the result is an epidemic.
And think for a moment just how much additional cost AIDS alone puts into our health care system, a bill now you and I have no choice but to foot. And that means that since we are paying for it, it’s now our business.
So that is it. It’s the end of the constitutional experiment in sexual freedom as a constitutional right. Promiscuity can be reduced, gay sex can be banned because it drives up health care costs.
Or…
Or maybe this means that the health care reform legislation is doomed before the Supreme Court. Look these days Kennedy pretty much decides all cases. Its his constitution, and we are just living under it. He found the way he did in Lawrence not because the law said so, but because he wanted it to be, so he decided it would be. I don’t believe any more that he gives a whiff what the founders thought; he just makes it up. And he would surely recognize that if this law is upheld, then we have pulled the rug out from under every single decision expanding sexual freedom going all the way back to Griswold v. Connecticut (discovering a supposed constitutional right to birth control). I mean, Kennedy is no originalist, but like most justices they try to rule by principles that are even-handedly applied. So maybe he would see the danger to his beloved Lawrence, and strike down all or most of Obamacare.
We’ll just have to see, I guess.
