Beyond judicial constraints on lawmakers, the reason sodomy won't again be illegal in the United States is that bigotry against homosexuals has declined tremendously, and -- especially among younger Americans -- there is a recognition that they are as deserving of personal liberty and equal treatment under the law as anyone.Well, I hope Friedersdorf is right about that, though he makes a mistake common among straights and gays alike. He think that the sodomy laws criminalized homosexuality, instead of certain acts, and denied "personal liberty and equal treatment under the law" to homosexuals. In one sense he's right, especially since the 1986 Supreme Court ruled in Bowers v. Hardwick that sodomy laws targeting homosexuals were constitutional, construing sodomy as a "rhetorical proxy" for not only gay men but all "sex/gender outsiders" (Marta T. Zingo, Sex/Gender Outsiders, Hate Speech, and Freedom of Expression: Can They Say That About Me? [Westport CT: Praeger, 1998], p. 116). And this assumption was used by our enemies as a justification for denying us equal treatment under the law, since we were all supposed to be felons. But before 1986, sodomy laws in the US forbade heterosexual couples, married or unmarried, to engage in "the abominable crime against nature, not fit to be named among Christians."
But Friedersdorf is also wrong about something more serious, something I hadn't known myself until a few days ago. It's true, in 2003 the Supreme Court did declare unconstitutional all sodomy laws in Lawrence v. Texas. But the US military continues to enforce its sodomy regulations, and
Eight years later, however, eighteen states still refuse to rewrite their laws and take these anti-gay relics off their books, with countless LGBT Americans continuing to feel their devastating effects as a result. Several state legislatures and courts have exploited loopholes in the Lawrence decision, while others have simply refused to acknowledge the decision altogether.Some of the states which have defied the Court are the usual suspects: Texas, Idaho, and Utah. But some are more surprising: Michigan, Minnesota, and Massachusetts. Yes, Massachusetts, where same-sex couples can get legally married -- but they'd better not try to consummate the union!
This is important, since (usually) men are still being arrested, charged, and tried under these laws. Often the charges are dropped, but this means that states are at the very least using these laws to harass people, and just having them on the books means they can still be used to stigmatize gay people.
Yes, Lawrence v. Texas was progress. But we still have a ways to go, and in an area where we thought we had already won.