Before we get hung up in the nuts and bolts of Lawrence v. Texas, let's be clear: There are two kinds of homophobia, at least in Texas. The first is a hatred of all things homosexual. That's bad. The other involves a certain fondness for gay people—an acceptance that they are A-OK, so long as they don't commit any of those sex acts they're inclined toward. This sort of Will & Grace ("gays are so cute, but don't show me what they do in bed") homophobia seems not only to be defensible according to the state of Texas; it also appears to be the lynchpin of their argument in today's long-awaited gay sodomy case.The facts of Lawrence are straightforward and mostly undisputed: Texas police entered the apartment of Houston resident John Lawrence in response to a neighbor's fabricated claim that a man in there with a gun was "going crazy." What the cops actually found was Lawrence and Tyron Garner having anal sex, for which they were promptly arrested under a Texas law prohibiting "deviate sexual behavior" (i.e., oral or anal sex) between persons of the same gender. Pause here to consider that bestiality is not considered "deviate" under Texas law...
Chief Justice William Rehnquist immediately challenges Smith on the claim that there is some longstanding privacy right to commit gay sodomy. This was the basis of the Bowers decision—a decision in which Rehnquist was in the majority. "The right has to have been recognized for a long time," he argues. Smith responds that laws banning homosexual conduct didn't even exist until the 19th century. Scalia argues that sodomy laws have been on the books from the beginning of the republic, they just included heterosexual and married couples. "It's conceded by the state of Texas that married couples can't be regulated in their private sexual decisions," says Smith. To which Scalia rejoins, "They may have conceded it, but I haven't." ...
Smith explains that fundamental rights are understood to apply to decisions about "sexual relations in the home" and decisions about "procreation and non-procreation." Rehnquist interjects that the laws at issue have little to do with "non-procreation." Smith says these laws say "you can't have sexual activity at all" if you are gay and Scalia objects: "They just say you can't have sexual intimacy with a person of the same sex." See? No problem. Homosexuals remain perfectly at liberty to have heterosexual sex in Texas...
Smith argues that there are neutral justifications for bigamy laws—but none for homosexual sodomy laws. And Rehnquist, in an odd little celebration of the narrow-minded and the judgmental, offers, "Almost all laws are based on disapproval of some people or some conduct. That's why people regulate."
Smith explains that the anti-sodomy laws have pernicious secondary effects—keeping gay parents from gaining child visitation or custody or employment, for instance—and Rehnquist wonders whether, if these laws are stuck down, states can have laws "preferring non-homosexuals to homosexuals as kindergarten teachers." Smith replies that there would need to be some showing that gay kindergarten teachers produce harm to children. Scalia offers one: "Only that children might be induced to follow the path to homosexuality." -Slate.com