America - Andrew Stephen raises America's sodomy issue

The Supreme Court's decision that sodomy is legal may be a good one. But is it good law? It seems to

Help! Ring the alarm bells! Bring out the smelling salts! Americans have been absorbing the fact that sodomy in Texas - yes, sodomy, to say nothing of oral sex - has been found by the United States Supreme Court to be legal. In a series of highly surprising decisions taken just before they went off for the summer, the nine justices found not only that Texas laws against homosexuals were unconstitutional, but also that affirmative action policies aimed to promote racial diversity in colleges and universities are lawful and must continue for the next 25 years. Third, they ruled that a prisoner awaiting capital punishment for murder should have his conviction overturned because he had received demonstrably poor legal help (in Texas, defence lawyers have been found to be asleep while their clients were being found guilty of murder - which brought a grin from the then Governor Bush during one of the presidential debates).

All three decisions were surprising because the Supreme Court has a right-wing majority, but it is the issue of sodomy that has most aroused America. In four states (Texas, Kansas, Oklahoma and Missouri), sodomy and oral sex were hitherto outlawed between gays; in nine more (Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia), they were illegal between heterosexuals, too. But Justice Anthony Kennedy, not always of the progressive wing, wrote that men "are entitled to respect for their private lives". Dissenting, Justice Antonin Scalia (Boy George's favourite member of the Supreme Court) called the ruling "the product of a law-profession culture that has largely signed on to the homosexual agenda". Now the question is being asked everywhere, not least on the cover of Newsweek: "Is gay marriage next?"

The Texas case began when the neighbour of two men - one black, one white, just to add to Texan sensibilities - reported to the police that an armed man had entered their premises. Police burst in to find the (non-existent) gunman but instead discovered Tyron Garner and John Lawrence having sex. They were fined $200, but appealed all the way up to the Supreme Court. The majority ruling said that the law under which they were convicted "demeans the lives of homosexual persons", and that men (and women) were entitled to do what they wanted in the privacy of their own homes. The court added that a 1986 decision upholding a ban on gay sex "was not correct when it was decided, and it is not correct today".

But Scalia was defiant. The decision, he wrote in his dissenting opinion, was counter to the "many Americans [who] do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." This, we can assume, is the view of the Bush administration and the majority of the American population.

The sodomy decision has opened a huge vista in privacy laws. Do people now have the right to do anything in the privacy of their own homes? Do they have the right to commit incest, say, or to sell heroin? By making the privacy of US homes sacrosanct when it comes to gay sex, the Supreme Court has invited a host of appeals that behaviour of every kind is acceptable so long as it is performed in private. Which brings me to a fundamental question about the Supreme Court decisions of recent days - a question that may be unpopular with NS readers. Is it right that nine men and women in robes should decide such fundamental social issues disingenuously presented as constitutional conundrums? Given America's federal system, it is surely the legislatures that must provide more democratic answers, however reactionary or outdated some of us might find them.

In 1996, Congress passed the Defence of Marriage Act, which defined marriage in federal law as a "union between one man and one woman"; most states adopted similar laws, and there is little doubt that they spoke for the majority of Americans. Although gay marriage seems a long way off here, progress is being made in non-legislative or judicial ways for the assimilation of gays into heterosexual society. Vermont allows "civil unions", and California is moving in the same direction. In 1992, only one of the Fortune 500 companies offered benefits to gay partners; now 192 do, including 27 of the top 50. Worries about Aids bills have been outweighed by a desire to hire gay workers. Most states now allow at least single gays to adopt children; in Washington, I often see gay couples with their adopted children.

There is no doubt that the Supreme Court decision was cathartic for homosexuals and meant well. However, it opens the constitutional door to almost every criminal activity that can be done in private. It may be a good decision, but is it good law?