In advance of the Supreme Court's decision, The Stranger sent David Schmader to tour the four states whose homo-only sodomy laws could soon be declared unconstitutional--and to commit some good old-fashioned illegal sodomy for perhaps the last time.
It all began on the night of September 17, 1998. Responding to a false report of an armed intruder "going crazy" in a Houston apartment building, police raced to the scene and with guns drawn entered the unlocked front door of apartment 833. What they found is at the heart of Lawrence v. Texas, the potentially landmark civil rights case now before the U.S. Supreme Court. In deciding the case, the Court could finally deliver to citizens who engage in same-sex sex the basic protections offered by the Fourteenth Amendment: "equal rights, with no man or set of men entitled to exclusive privileges." The Court's decision hinges on how the justices interpret what Houston police found that night in apartment 833.
What police found was two men--John Lawrence, the apartment's owner, and Tyron Garner, a guest--having sexual intercourse. Both Lawrence and Garner were arrested, jailed for the night, and fined $200 for violating Section 21.06 of the Texas Penal Code, which criminalizes "deviate sexual intercourse with another individual of the same sex." Deviate sexual intercourse is specified as "any contact between any part of the genitals of one person and the mouth or anus of another person; or... the penetration of the genitals or the anus of another person with an object," meaning that in Texas--as well as Oklahoma, Kansas, and Missouri, which have similar statutes--adult males are legally forbidden to place their mouths on the genitals of other adult males, adult women are legally forbidden to touch other adult women's vaginas, and adults of both sexes are legally forbidden to welcome anything into their anuses if said anything is being maneuvered by a member of the same sex.
However, if the maneuvering (or touching or mouth-placing) is done by a member of the opposite sex, Texas offers its implicit approval, having narrowed its sodomy laws to apply exclusively to same-sex sex in 1973--the same year Texas repealed its laws against bestiality. As it stands, only homosexuals can violate Section 21.06, which manages the neat trick of barring homosexuals from any and all sexual expression. Forbidden to touch anyone of the same sex, lesbian and gay Texans have two lawful choices: Go celibate or go straight.
If this strikes you as unfair, and perhaps grossly unconstitutional, you're not alone. "Analyzed correctly under binding Supreme Court precedent, Texas Penal Code section 21.06 is in violation of the Equal Protection Clause of the Federal Constitution," wrote Justice John S. Anderson during Lawrence v. Texas' 2001 appearance before the Texas Court of Appeals. Anderson's dissent was echoed in such Texas papers as the Waco Tribune-Herald, the Amarillo Globe-News, and Galveston County's Daily News, which denounced the "idiotic law" as a "legal abomination" comparable to Taliban rule and implored the government to "stay out of Americans' bedrooms... even in Texas." Unfortunately, Justice Anderson and other voices of reason were shouted down by the majority of the Texas Court of Appeals, which voted to uphold Section 21.06, citing Texas' right to prohibit homosexual conduct "to preserve public morals," and setting Lawrence v. Texas on the road to the highest court in the land.
Now the Supreme Court gets to wrestle with Lawrence, deciding by majority vote whether Americans who engage in same-sex sex are participating in a private act of intimacy or committing a crime. And despite the conservative majority of the Supreme Court, Congress' open hostility to gay-rights legislation, and a Republican president who has defended gay-specific sodomy laws as "a symbolic gesture of traditional values," general consensus favors a Supreme Court strikedown of anti-gay sodomy laws.
Pessimists point to the Court's infamous ruling in 1986's Bowers v. Hardwick, a case nearly identical to Lawrence v. Texas, in which a 5-4 majority of the Court ruled that the U.S. Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. Still, the Bowers decision was a shock even in 1986, and the subsequent decade and a half has brought a slew of impressive gay-rights advances, from Romer v. Evans, the Court's 1996 rejection of a state's right to prohibit gay civil-protection measures, to Will v. Grace. In our significantly more enlightened age, Lawrence could very well lead the Supremes to declare that it's finally legally okay to be gay.
"Oh my God," said Sue Hyde, New England regional organizer for the National Gay and Lesbian Task Force, to the American Prospect's E. J. Graff. "Have we been spoiling for this rematch since 1986? People have been waiting and looking and wanting and hoping for just this kind of idiotic police behavior. Because in order to bring a clean and clearly articulated case before the Supreme Court, the police have to literally intervene in someone's home. This is that case."
The Supreme Court's decision is due by June 30, and could arrive any day before then. With the fate of criminal homosexual sodomy hanging so perilously in the balance, I had some work to do. Fast.
Day #1: Ponca City, Oklahoma
How does criminality affect the nature of sex? Is illicit sex somehow "hotter"? Do gays and lesbians in the homo-only sodomy states ever think about this stuff? These are the questions I was sent southeast to investigate. In perhaps the single greatest assignment in the history of American newspapers, I was given two plane tickets and a rental car, and ordered to take a hot-sex road trip on my paper's dime.
With me was Jake, my guy of two years, who'd just come back from a month-long visit with his family in Utah, a well-timed return that spiked the Sodomy Tour with the carnal equivalent of "absence makes the heart grow fonder." Along for the ride was a gift basket from Toys in Babeland, the Seattle sex emporium and official sponsor of the Sodomy Tour, who provided Jake and me with a wealth of sodomy-enhancing contraptions, from safety standards (condoms, lube) to hilarious novelties, all of which received thorough examination by lucky Sea-Tac luggage inspectors.
Upon landing in Dallas, Jake steered our rented Chrysler onto President George Bush Parkway and up toward Oklahoma. As we crossed the border, Texas' lush fields of bluebonnets gave way to Oklahoma's blasted flatlands, sulking under a white sky. A nearly identical sky had hung over El Paso, Texas, where I was born and raised, and seeing it again reminded me why I'd lived the first half of my life from the neck up with a Walkman on: Nothing's more depressing than a blank white sky.
Five hours later Jake and I hit Ponca City and checked into the Rose Stone Inn, a locally owned mom-and-pop place whose desk clerk honored our request for a room with a queen-size bed without batting an eye, only periodically turning to scream at the collie wandering the lobby: "Dixie, get your motherfuckin' ass over here or I'll slap you sideways to Thursday!"
The B&B-meets-crackhouse vibe continued in the room, where we found a TV, dresser, and some plants, all of which boasted hefty layers of gray dust, offset by the array of mustard-toned stains adorning the sheets and pillowcases. "They ain't dirty," insisted the desk clerk, who promised she'd just run said sheets through the wash. "They're just stained." If ever a room deserved criminal sodomy, this was it.
After a good half-century of imposing extended jail terms on sodomites of all stripes, Oklahoma's sodomy law took specific aim at the gays in 1986, when an appellate court interpreted the state law as "inapplicable to heterosexual activity." Similarly, in the popular imagination, the sin of Sodom is typically limited to and synonymous with (excuse the term) gay buttfucking. But the legitimate definition of sodomy is far less graphic, lying at the end of a twisted etymological road littered with political machinations, evolving interpretations, and deceptive biblical roots. (The Bible makes no mention of sodomy itself, naming the sins of the wicked city of Sodom as general "crimes against nature" and inhospitality. Which, technically speaking, makes whoever owns the inhospitable Rose Stone Inn and its stained sheets a sodomite.)
Sodomy's legal history is as twisty as its etymology. In 1697, Massachusetts outlawed "the detestable and abominable sin of buggery with mankind or beast, which is contrary to the very light of nature." Over the next century, a majority of states adopted Massachusetts' statute verbatim; in later years, several states expanded the law to include oral sex. Until 1968, Georgia defined sodomy as "connection against the order of nature, by man with man, or in the same unnatural manner with woman," a klutzy and vague definition that facilitated both a 1939 Georgia Supreme Court ruling that the law didn't prohibit lesbian activity and a 1963 Georgia Supreme Court ruling that the law didn't prohibit a man from performing oral sex on a woman. (And distinguishing the Supreme Court of Georgia as the nation's preeminent think tank on cunnilingus for over 25 years.) Meanwhile in Texas, current criminal law defines sodomy as "carnal knowledge committed against the order of nature by man with man, or in the same unnatural manner with woman; or by man or woman, in any manner, with beast." (The gender of beast is apparently of no concern.) Still, only the same-sex variety in Texas is illegal. Heterosexual buttfuckers and animal-rapers are sodomites, but they're not criminals.
But the true definition of sodomy is nothing more and nothing less than nonprocreative sex. Any sex act that cannot result in male sperm fertilizing a female ovum qualifies as sodomy. This includes married couples using birth control, infertile or postmenopausal women having sex with their husbands, and elderly men masturbating to Britney Spears' Pepsi commercials. It also includes every sex act available to partners of the same sex, a fact that leads writer Andrew Sullivan to sum up sodomy laws as an attempt "to ban homosexuals from sexual dignity."
In the interest of sexual dignity, descriptions of sex acts performed on Sodomy Tour 2003 have been left to artist Stefano Gaudiano, to whom I gave elliptical descriptions. Here's what we did on night #1:
In the morning, Jake and I visited the Ponca City police station. Having recently violated Section 886 of Oklahoma law, I thought it might be fun to have our picture taken with an actual law enforcement official. As we waited to meet an officer of the law, Jake delighted the police station's receptionist with his memories of touring this station as a kid. This was true--Jake attended kindergarten and first grade in Oklahoma's nearby Kay County, from which Jake's class took a field trip to this very station.
Within minutes, a uniformed officer appeared to take us on a guided tour. For the most part, this involved walking down hallways lined with offices, with our host pointing at guys sitting at computers and saying things like, "That's Gary." Still, the officer was happy to pose for a photo, gamely sandwiching himself between Jake and me while the receptionist pointed and clicked. Tragically, the shot was double-exposed, burying the lovely photo of the cop with two sodomites beneath a six-year-old picture of Jake's college friends. I took this as a sign. Traveling to the four sodomy states to commit final crimes was enough of a jinx magnet. Willingly placing ourselves inside police stations was just dumb. God and Advantix film work in mysterious ways.
On the way out of town, Jake stopped by his old elementary school. He'd told me stories about this place--a rural schoolhouse where stray dogs roamed the halls and venison routinely appeared on the lunch menu. To Jake's surprise, his first-grade teacher was still around, teaching her final year before retirement. After sussing out Jake's status as an unmarried guy with a "special friend," the teacher shared that her youngest son also lives in Seattle--"on Capitol Hill," she added, with knowing emphasis. Which highlights a third choice available to gays in illegal-sodomy states: getting the hell out.
On the road out of Ponca City, Jake and I counted not one or two but three public warnings about the terrors of shaken baby syndrome, leading us to believe that Northern Oklahoma's problem isn't homosexual sodomy, but an epidemic of improperly handled infants. "Shake a baby--shatter a life," preached a family wagon's bumper sticker, while a towering billboard promoted a "Shaken Baby Syndrome Prevention Workshop," easily the five most upsetting words ever placed in a row. "How long could that workshop last?" wondered Jake. "'See this baby? Don't shake it!'"
Day #2: Coffeyville, Kansas
On the road to Coffeyville--a town of 11,201 spread over 8.5 square miles near southeast Kansas' Verdigris River--I boned up on the specifics of Kansas' sodomy statutes. Speeding through fields of bright green before a vast blue sky, I read about Kansas' 1913 sterilization law, revised in 1917 to permit sterilization of anyone whose "mental or physical condition" would benefit from such a procedure, resulting in the state performing an estimated 1,362 "extreme forms of sterilization," including castration and ovariectomy. Many if not most of these extreme sterilizations were performed on unlucky gays and lesbians who, unlike Jake's first-grade teacher's son, didn't have the sense or the luck to get the hell out of Kansas.
Also on this road, Jake and I began spotting what would prove to be a sad mascot for the Sodomy Tour: crushed skunks. At first I felt sorry for the road-killed critters, of which we saw no less than 12. But if Warner Brothers cartoons have taught us anything, it's that every skunk is a potential rapist, and I saved my concern for worthier things.
As soon as we checked into our Coffeyville motel--a cheap corporate chain whose bland rooms at least boasted unstained sheets--Jake and I immediately set about doing the gayest thing possible: watching Cher's latest farewell concert on NBC. Throughout the pre-taped, meticulously edited broadcast, the camera repeatedly cut from Cher delivering a campy crack to a gaggle of wonderfully flaming gay men laughing their faces off. Maybe it was postcoital bliss, but even this--gay guys on TV, without poodles or nooses, just having a blast--felt like a victory. Nothing huge, just another step in the great, gradual, ongoing okaying of gayness in America.
This okaying--not acceptance, just the increasingly easy and frequent acknowledgments that we exist--is central to optimists' hopes for the Supreme Court's Lawrence v. Texas ruling. For a measure of how far America's come in the past 17 years, read the Supreme Court's 1986 decision in Bowers v. Hardwick, which found Justice Harry Blackmun's impassioned plea for gay and lesbian Americans to receive "the right most valued by civilized men--the right to be left alone" overruled by a shamelessly bigoted majority that compared consensual gay sodomy to rape and murder and dismissed the notion of a homosexual's right to privacy as "facetious." "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching," wrote Chief Justice Warren Burger in his Bowers concurrence; during Bowers' oral arguments, Burger famously blurted out, "Didn't they used to put people to death for this?"
Never mind the spuriousness of the Court's "millennia of moral teaching" claim (sure, sodomy's been denounced since the dawn of time, but sodomy laws first started targeting homosexuals specifically in 1969). What's significant is Bowers' tone--harsh, dripping with spite and malicious ignorance, and entirely unfit for the nation's highest court in 2003. Compare 1995's Hurley v. Irish-American Gay Group of Boston, which found Justice Antonin Scalia, considered the Court's most relentless foe of gay rights, bandying about the phrase "gays, lesbians, and bisexuals" like he'd just returned from GLAAD camp.
"These days, even when we [gays and lesbians] don't get our way, we are much more likely to get a fair hearing," confirmed Lambda Legal's Evan Wolfson to the Advocate. "[The justices] have come a long way, and I think that bodes well for Lawrence."
Signs of hope for Lawrence abound, from a pro-repeal pronouncement by the conservative Republican Unity Coalition to South Africa's denunciation of gay sodomy laws as "a palpable invasion of... dignity" comparable to apartheid. Reading these hints of Lawrence's fate, I'm reminded that the Court's ruling could arrive at any moment, potentially landing midcoitus, transforming a hideous crime against nature--executed as a stipulation of my employment--into an innocent act of love. And while travel contingencies seriously abbreviated our stay in Coffeyville (of which we saw nothing save our room, Cher, and a Wendy's), we were in Kansas, birthplace of America's first homo-only sodomy restrictions in 1969, and we made time for crime. Night #2 went like this...
Day #3: Branson, Missouri
As we sped past glossy billboards hyping the arrival of Branson, Missouri--the "Vegas of the Midwest," catering to Christians, country music fans, and the elderly (via "family entertainment," Hee Haw has-beens, and dinner service at 4:00 p.m., respectively)--Jake and I had one goal: Find other gays.
I wanted to know how actual gays and lesbians felt about living under restrictive sodomy laws--particularly Missouri's, which upheld the constitutionality of life sentences for sodomites for three and a half decades before generously lowering the penalty in 1977 to a misdemeanor with a maximum of one year in jail. Admittedly, these and other states' sodomy laws exist primarily as "symbolic gestures of traditional values," and are rarely actively enforced. Still, from the man in Rhode Island who called police to report his wallet stolen by a trick, only to be charged with sodomy (in 1997!), to the numerous gay and lesbian parents who have been denied custody and visitation rights on the grounds that such activities would expose children to crime, these laws occasionally rise up and do their best to ruin people's lives.
So far, the Sodomy Tour had been devoid of any recognizable homosexuals other than ourselves, since both Ponca City and Coffeyville came across as straight as Tommy Lee beating Pamela Anderson. These were places where guys fucked girls and the few lone queers played by the rules: Keep quiet, or get torched on a tire pile. But Branson--basically a mile-wide smattering of buffet restaurants, souvenir shops, and midsize theaters--was another story. No town could rely so heavily on large-cast song-and-dance extravaganzas without involving a fair number of homosexuals, and we were determined to find them.
Jake took the upper hand, flipping through the phone book to find anyone who seemed likely to know about gay people in Branson. After rounding up numbers for Branson's florists, interior decorators, and Gap, Jake decided to call the hotel's concierge. "Hello," Jake said. "Does Branson have a gay bar?"
"No," said the concierge, in a tone that suggested Jake had asked if he might fill the concierge's mouth with piss. "I don't think so."
Discouraged but not defeated, Jake returned to the phone book, but calls to Branson's florists (all women), interior decorators (ditto), and Gap (closed for the night) were unhelpful. Finally, Jake scanned Branson's bar listings, searching for the hidden-in-plain-sight names favored by small-town gay bars--the Incognito Lounge, or Ain't Nobody's Biz--but found nothing.
Defeated, we headed out to take in the sights. Most impressive: the Shoji Tabuchi Theatre, featuring twice-nightly shows by Mr. Shoji Tabuchi, a Suzuki-trained classical violinist turned rambunctious country fiddler. Every Shoji performance ends with the host belting out his signature catch phrase--"God bress Amelica!"--but the real show at Shoji's is the men's and women's restrooms, whose construction and luxury appointments cost Shoji a famous $1 million each. "Fabulous bathrooms can only appeal to two types of people," said Jake. "Old folks and homosexuals." We saw a lot of old folks.
Back in our room, we did it for Branson's invisible gays...
Day #4: Plano, Texas
After three days of sodomy in motels, the last night of the Sodomy Tour offered Jake and I our first opportunity to break the law in something like home--my parents' house in Plano, Texas, 30 minutes north of Dallas. Arriving to an empty house and a note ("Back in a few hours!"), Jake and I set about committing our final crime while we had the place to ourselves--a plan foiled by my mother and grandmother, whose early return required Jake and I to shift instantaneously from coitus interrupted to a family game of Yahtzee in the living room.
Speaking of twisted: On my parents' computer, I was finally able to track down published reports of Lawrence v. Texas' latest day in court. On March 27, the Supreme Court weighed arguments on the constitutionality of Texas' gay-specific sodomy law, with appellants John Lawrence and Tyron Garner represented by Paul Smith, cooperating attorney for Lambda Legal, and the state of Texas represented by Charles Rosenthal, district attorney of Harris County, Texas.
Described by the New York Times as "a mismatch of advocates to a degree rarely seen at the Court," the hour of arguments pitted Smith, a former Supreme Court law clerk and experienced Court practitioner, against Texas' Rosenthal, making his Supreme Court debut. Excerpts from the arguments show Rosenthal's simple argument--that Texas has the constitutional right to set moral standards for its citizens--legally and intellectually overwhelmed by Smith's double-barreled attack on Section 21.06.
Denouncing the Texas law for violating both the constitutional guarantee of equal protection and the right to privacy, Smith offered the Supreme Court two positive options. Should the Court overturn the Texas law on grounds of equal protection, Texas could retain its sodomy law--if the state revises the law to join Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia in criminalizing sodomy for everyone, gay and straight (effectively relegating Texas' statute to the arena of weird, largely unenforceable laws of the "no goats on the street after dark" variety). But should the Court overturn Texas' law for violating the right to privacy and due process (the far more ambitious option), the Court would have to reverse its decision in Bowers v. Hardwick, and finally recognize that private sexual intimacy, even when undertaken between citizens of the same sex, is part of the basic liberty promised to Americans by the Constitution.
Rosenthal did his best to defend Texas' right to legally persecute homosexuals, with an exceedingly generous helping hand from Justice Antonin Scalia, who eventually went so far as to place questions in Rosenthal's bumbling mouth. "Might there be a difference between the people's willingness to prosecute something criminally and the people's embracing of that as a fundamental right?" offered Justice Scalia during one of Rosenthal's trouble spots--an opening Rosenthal didn't know what to do with, choosing instead to defend gay-specific sodomy laws by defending heterosexual sodomy, which Rosenthal claimed, with a straight face, "can lead to marriage and procreation."
Eventually, an exasperated Justice Stephen Breyer mocked Rosenthal's inability to support his argument by comparing Texas' unjustified subjugation of gays to an old nursery rhyme: "I do not like thee, Dr. Fell, the reason why I cannot tell."
Having received further encouragement to count my legal chickens before they hatched, I set out to answer the questions posed at the start of the Sodomy Tour. The first two--Does criminality affect the nature of sex? Is illicit sex somehow hotter?--I could answer on my own. The third--Do gays in homo-only sodomy states ever think about questions one and two?--required research, for which Jake, my mother, and I ventured to one of Dallas' most popular gay bars.
On the drive to Dallas--a half-hour jaunt offering expansive views of strip malls and multi-acre car dealerships--Jake and my mom chatted about Depression glass and Descoware, while I wrangled with ideas of "criminal" sexuality and illicit sex. I never trust an easy answer to a complicated question, and all questions about desire are complicated. It's undeniable that illicit sex can be intoxicatingly hot, but it's an entirely different charge than a great fuck with someone you love. As for criminality: Having come of age in Texas, I suppose I'll always feel vaguely outside the law when it comes to sex and love. But maybe this outlaw feeling is felt by all those who let themselves love and fuck for real. It's this basic reality of sex--homo, hetero, procreative, sodomitic--that drains the literal outlawing of sex of its power and validity. For my right to engage in private, consensual sex with the adult of my choice to be currently up for a vote--by nine people I have no interest in sleeping with--is so galling it's surreal.
This surreality was confirmed inside J.R.'s, a bustling split-level dance bar with a pair of outdoor patios. This wasn't an outlaw minority furtively seeking accomplices for crimes; this was a gay bar in full flower, with all the drinking, laughing, and cruising that entails. It could have been a bar in Seattle, if Seattle fags ironed their jeans and said "y'all." To ask these folks how they felt about their state's sodomy law was redundant.
Witnessing the undaunted spirits of Dallas' criminal gays, I recalled a statement made by Professor John D'Emilio to the American Prospect's E. J. Graff: "One of the most interesting things about the gay and lesbian movement is that there have been almost no major moments of victory. There's no suffrage amendment, no voting-rights act... no Roe v. Wade." And, as Graff pointed out, if Lawrence v. Texas is that victory, there could be a really big celebration this summer.
Back at the house in Plano, with my parents and grandmother safely sequestered in their soundproof bedrooms, Jake and I did it one last time, for luck.