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Six grim, black-robed, apparently sexless judges put spring in the step of American gay pride marchers this year. This was the US Supreme Court majority that prevailed in the 6-3 decision, handed down June 26th, overturning laws against same-sex sodomy.

The ruling in Lawrence & Garner v. Texas, struck down the Lone Star State sodomy law, and essentially overturns the widely despised precedent set in 1986 in Bowers v. Hardwick-- when the court had ruled 5-4 that criminalizing gay sex was "firmly rooted in Judeo-Christian moral and ethical standards." Last month's decision closes the book on an American tradition of prosecuting sodomy-- and occasionally executing people for it-- that goes back to Puritan times. By the logic of the majority's ruling, as a bitter dissent observed, the high court may offer notable sequels-- perhaps ending exclusion of openly-gay people from the military, allowing for stronger anti-discrimination protection, and even gay marriage.

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The majority opinion, penned by Justice Anthony Kennedy opens with an oomph like Beethoven's Ninth. "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places," he writes.

While gay people are still humming along to its music, the majority decision also strikes some sour notes. It's not clear the justices who signed on really know their score. Do they really believe its high-flown principles, or just find them convenient to say?

And peer into the ruling's logic and circumstances, and this legal triumph-- perversely-- reveals itself in part as a product of a steady march of sexual repression in America since Hardwick. It's as if only by the light of the bonfires of our latter-day witch-hunts could the Supreme Court find its path to deciding right about sodomy. The court came to its proper conclusions in part by making invidious distinctions between homosexuals who should be left alone in their homes, and others who deserve to become permanent wards of Big Brother.

Still, in these post-Patriot Act, permanent War-on-Terror times, it's a balm to hear a high official of the global hyperpower assert that "In our tradition the state is not omnipresent in the home."

"And there are other spheres of our lives and existence," Kennedy continues, "outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

Imagine-- a Supreme Court majority calling anal sex-- and heaven knows how right they are-- "liberty in transcendent dimensions"? No wonder the winning opinion provoked outrage from the Court's hard-right, authoritarian wing. Antonin Scalia wrote his dissent in sulfuric ink, saying his confreres had put themselves in the hock to "the so-called homosexual agenda."

Hotting up the rhetoric on both sides was a sense that the matter at hand was at root symbolic. That sense was widely shared, not least by the gay groups who fought to overturn Hardwick, for whom the biggest hurdle was actually finding a sodomy arrest with which mount a challenge. Texas came to the rescue. When Houston police, on reports of a weapons violation, burst into an apartment, they found John Lawrence and Tyrone Garner having anal sex. The weapons accusation was erroneous, but Garner and Lawrence were arrested, forced to spend the night in jail, and fined $200 each. They challenged their prosecution.

No sex please, we're proud

Fighting sodomy laws has not loomed large on the agenda of America's big lesbigay groups. Campaigns to fight for legal butt-fucking don't have the requisite bland, creamy mouthfeel that Lambda Legal Defense or the Human Rights Campaign aspire to in their press releases and fundraising appeals. To the extent they addressed the question, gay groups cast the writ against sodomy laws in terms of generic calls for tolerance, fairness, and even "family values." Anti-sodomy statutes, it was said, fostered inequality in employment discrimination suits or custody battles-- situations without a tube of KY in sight.

But that argument itself needs a bit of lubrication, as it's an awkward fit. If a lawyer or judge wants to play the anti-gay card, there's usually plenty of ways to skin the cat. The firing of gay employee Jones can always be justified for his having been five minutes late one day last October, or for joking about cleavage at the water cooler. Lesbian ex-spouse Smith can lose the kiddies because of her biker-buddies or taste for bondage videos.

In any case, states were already generally dropping their sodomy laws-- 12 more took them off the books in the years since the court ruled in Hardwick that they could keep them. So Lawrence & Garner was mainly about symbolism, about erasing an icon of gay Americans' second-class status. The ruling added spark to this year's gay pride parade, it would "change the way we hold our bodies," suggested Richard Goldstein in the Village Voice. But it wasn't going to change anyone's life. Right?

Hard cases & bad laws

Wrong. People who read the papers the day after the decision came down got a jolt of cognitive dissonance seeing the headline-- about how the ruling could set free a Kansas man serving a 17-year prison sentence for gay sex.

Matthew Limon was 18 when he had been sentenced for a blow-job with another teenager, a 14-year-old friend from the school for the slightly retarded that they both attended. The sex was mutually agreed, and then the younger teen asked Limon to stop, which he did. The Kansas law under which Limon was convicted established harsher penalties for underage homosex than heterosex-- had Limon's partner been a girl he would have faced only 12-15 months. In the wake of Lawrence & Garner, Limon's case is back in Kansas courts for reconsideration.

Prosecutors have also called upon sodomy statutes in condemning people to indefinite incarceration under civil commitment laws, in the course of creating a damning-sounding laundry list of offenses with which to convince a judge or jury to lock somebody up forever after serving their sentence.

In a campaign against sodomy laws, an outrageous cases like Limon's would shoot, one would think, to the top of the agenda. But as it turns out, lesbian and gay groups had nothing to say. Not Lambda Legal Defense, not the Human Rights Campaign, not the National Gay and Lesbian Task Force, not the International Gay & Lesbian Human Rights Commission. Not one of them ever spoke out against Limon's 17-year sentence. Nor have any of them opposed civil commitment laws.

The only group to take a stand, albeit meek, was the American Civil Liberties Union. But even the ACLU held Limon at arm's length by the fingertips. They didn't quibble with Kansas's right to put a gay youth away for 17 years for consensual sex with another teenager-- they only objected that the state didn't extend such punishments equally to heterosexual liaisons. The ACLU, now headed by openly gay Anthony Romero, also opposes civil commitment laws-- but its arguments stink. If they want to, the ACLU suggests, states can give people who violate sex laws-- even those who use no violence or coercion-- such long jail terms that they're guaranteed to die in prison.

Nothing unusual

Limon's case is notable in how it involves a sodomy law. But as to the severity of its injustice, it is commonplace. Almost every newscast offers fresh evidence that the West is in an age of sex hysteria. The themes come and go-- Satanic abuse with tortured babies, day-care center ritual molestation with elephants and tunnels, recovered memories of rape never before noticed, epidemics of child kidnapping and priestly fondling. Each phenomenon peaks in the newspapers, and then is shown to have been wildly distorted and exaggerated or, sometimes, wholly invented. But somehow sex's incredible danger, especially to the young, stays fixed in Western public attention like a tune that can't stop playing in your head.

America has responded to the challenge it has itself manufactured. Since Hardwick, the US has rolled out sex-offender registries of persons convicted of sex crimes, sometimes decades prior. Porn laws have grown so expansive and onerous that-- as of Congress's last revision this spring-- owning gay physique magazines sold freely in the 60s and 70s now means a mandatory life sentence if you have a sex offense in your background. And uniquely in the case of sex, the Supreme Court has ruled that anyone can be preventatively detained for life for crimes hired guns convince a judge or jury that the person might commit in the future.

In part the new repression seems a reaction to the gains won in the great liberalizing leaps of the 60s and 70s. Each of sex hysterias has had a thread of at least covert homophobia. But the machinery of sexual identity has itself been hijacked for repressive ends. Civil-commitment laws presume that people have a fixed and diabolical sexual nature, while sex-offender registries attach the label "predator" to faces, names, and addresses-- a malign inversion of the way gay people announce their freely-embraced pride on bumpers and home pages.

But the new anti-sex hysteria is so large, multifaceted, and widespread-- worst of all in America, but present throughout the West-- that something more profound may be happening. Perhaps we are witnessing the birth of a new religion out of the American Empire, as Christianity emerged from the Roman Empire. Pagan Rome paved the way to Christianity-- literally-- with its road network helping new ideas to spread among common people. The Roman Empire's relative peace, prosperity, and good communications contributed to a boredom and decadence that undermined the old pagan traditions, which seemed corrupt and irrelevant. Christianity offered something new-- an elaborate concern for the individual soul-- irrespective of a person's class-- that spoke to downtrodden masses. The new movement eventually transformed Roman politics. There is a parallel to early Christianity in the fetishization of sexual pollution in evidence in the West in the wake of the 1960s' bacchanalia. The cult of sexual victimization-- now common currency in Western retail politics and media-- fosters a popular conception of the self as supremely delicate, and so in need of supremely powerful authorities to protect it. Generalized fear sows mistrust, which weakens the already tattered sense of community, and creates a vacuum that state and media rush to fill. No less than early Christianity, the new cult of sexual victimization is changing the relation of the individual to the state, which-- America's Enlightenment Constitution be damned-- is now concerned with our "souls" in frightening and authoritarian new ways. Is it all a prelude, as many strands of pop culture are exploring, to the total subsumption of sex and reproduction to the market, the state, or machines?

The invocation of acts of (mostly) homosex and (often mere touching) from years ago have in the past few years almost destroyed the American Catholic church, and put an institution that was somewhat outside it thoroughly under state control. As the church crisis suggests, the new sexual regime has religious as well as political dimensions. The ritualistic degradation and righteous hatred manifested in the merciless treatment of sex offenders becomes an occasion for a perverse social bonding and spiritual renewal-- as lynchings of blacks served for some Southern whites.

Whatever the cause of the madness, huge zones of homosexuality have been killed off, or subject to criminal sanction stronger and more consistently applied than probably any time in history. In today's America, Oscar Wilde's relationships with working-class teenagers, André Gide's forays to North Africa, Walt Whitman's choice of lovers would make them liable for life imprisonment. The informal and experimental homosexuality once commonplace among adolescent males seems to have withered-- high school football teams are so bashful they can't bring themselves to take showers after the game.

Those lucky enough to ever get out of jail for newly taboo forms of homosex face, under federal legislation also passed this year, lifetime parole-- open-ended, perpetual monitoring unto death. For them, Justice Kennedy's opening lines do not apply-- the state is omnipresent not just in their homes, but-- with peno-meters, and soon implanted chips for geo-positioning and remote-monitoring of physiological states-- it becomes omnipresent in their bodies and minds. American sex parolees live under a totalitarian dictatorship right out of sci-fi dystopias. Their names, faces, and addresses are broadcast throughout their neighborhoods and around world. Their homes can be searched at will for no reason. They can be thrown back in prison indefinitely based on hearsay, or for having candy bars in their refrigerator (if their parole officer has decided to prohibit them). Indefinite prison looms for these men merely for having the wrong unconscious physical reactions-- getting erect at incorrect pictures during a mandatory consult with a "therapist," or having a suspiciously strong pulse when queried about fantasies when they are hooked up to a lie detector.

Liberty for the free

The Texas sodomy law's "penalties and purposes," Kennedy wrote, touch "upon the most private human conduct, sexual behavior, and in the most private of places, the home." Such activity, he continued "is within the liberty of persons to choose without being punished as criminals." The mere existence of the law would work to criminalizing homosexuals as a class, he went on, inviting discrimination.

So far so good. But in deciding Lawrence, the high court majority was careful to safeguard this new realm of hyper-repression, which they had done much to legitimate and sustain. Kennedy's opinion offers a potted history of homosexuality-- in which urban cruising, hustling, and horny teenagers-on-the-make don't figure, and never enjoyed (as they often did) a de facto wiggle-room. Instead, in Kennedy's history, only consenting adults in private have enjoyed relative liberty to enjoy sodomy. Kennedy makes this claim so forcefully and repeatedly that the Kansas Supreme Court could easily decide that Lawrence has no application to Limon.

The increasing stigma that the court has helped pile on the heads of people who violate sex laws-- including purely consensual crimes-- influenced the outcome in the sodomy case. Kennedy cites the onus of sex offender registries-- upheld by the court this term-- as a reason to throw out the Texas statute.

Scalia's dissent doesn't just attack the majority's conclusion, but doubts its sincerity. The court would rule differently, Scalia suggested, if the private sex acts in question weren't sodomy but bigamy, bestiality, adult incest, or watching a video of 16-year-olds getting it on. To Scalia it's unthinkable-- but of course real liberty demands-- that the state steer clear of punishing such victimless pursuits. But Scalia is right that the court's majority does not have the courage of its convictions.

In the end, what is for gay people a rousing political victory probably emerged merely from political calculus. The court reached its decision ad hoc, because it would be popular. Why should that matter, so long as they did the right thing? Because the terrible repression the state deals out to sexual outlaws is also popular. Western approaches to sex desperately need solid principles of fairness and proportionality, but in the biggest victory we're likely to get this generation, we only won a beauty contest.

New ways to punish fucking

If Lawrence is the ad hoc ruling it seems, it may carry less punch than celebrants anticipate. President Bush has recently issued an executive order exempting religious groups from gay anti-discrimination laws. It's likely that even this court, when confronted with a gay marriage case, would invoke Hardwick-style "it's not in the Western tradition" arguments. And in the absence of sodomy statutes, police and prosecutors can dust off laws against "lewd conduct." Toes, or the pleasuring thereof, are not cited in any Biblical text as likely to summon forth hellfire or turn people into pillars of salt. But in July, a judge in Santa Ana, California, sentenced a 32-year-old youth worker to life in prison for "lewd conduct," after being convicted of sucking a number of boys' toes. There's still plenty of scope-- maybe more since courts can define "lewd" on-the-fly-- for attacking homoerotic activities.

Lousy deal

But surely, getting rid of sodomy laws in itself couldn't be a bad thing. Even here, history encourages caution. In 2000, when Matt Foreman, the new head of the NGLTF, directed New York's Empire State Pride Agenda, he helped push for New York sex law reform.

In exchange for a promise to eliminate the word "sodomy" from the statute books-- the law had already been struck down in the courts-- Foreman enthused over legislation that sharply upped penalties for consensual teenage sex-- allowing in some cases life sentence for blow jobs like the one Matthew Lyon shared with his friend. For the gain of a hollow symbolic gesture, Foreman was willing to let people die in jail for having gay sex.

Sodomy laws are a historical mark of religious persecution of homosexuality. But the fight to get rid of the them-- now seemingly won in the US-- shouldn't be an end in itself. That fight is only good if it's in the context of an overall vision of fairness and justice around sex. And though the gay movement has won the sodomy battle, for now the war isn't looking good.

Author Profile:  Bill Andriette
Bill Andriette is features editor of The Guide
Email:	theguide@guidemag.com