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Wednesday, July 02, 2003
The Supreme Court's recent decision in Lawrence v. Texas, invalidating a sodomy statute and overturning Bowers v. Hardwick (which upheld a statute that would throw homosexuals and heterosexuals in jail for up to 20 years for having oral or anal sex), has occasioned much hand-wringing on the right, which seems fixated on the idea that this is the first step on the road to gay marriage.

A lot of this argumentation is very disturbing to me. I support gay marriage, but I also know that it's a long way from invalidating a sodomy statute that makes criminals out of gays who perform sex acts that are performed by many, if not most, hetero Americans to recognizing gay marriage. Indeed, the Court expressly did not reach the argument made by the defendant in Lawrence that the Texas law was invalid because it discriminated against gays and lesbians. Rather, the Court held that the unenumerated right to privacy that has been found in the Constitution in earlier cases such as Griswold v. Connecticut and Roe v. Wade extends to protect the right of anyone, gay or straight, to commit private consensual acts of sodomy. Further, even Justice O'Connor, who was alone among the Justices in indicating her willingness to strike down the statute as discriminatory against gays, specifically stated that she thought that statutes that discriminate against homosexuals should be sustained if they have a rational basis, and that the protection of traditional marriage is such a rational basis.

So why then are Stanley Kurtz of National Review Online, and David Frum, and other conservatives so up in arms about how this is going to lead to gay marriage? Recent pieces by Jonah Goldberg provide the answer-- gays have prevailed on a broader question of tolerance and that drives certain conservatives who wish to remain intolerant of homosexuals crazy.

The question of tolerance is essentially this: in the past, it was perfectly socially acceptable to harbor a prejudice against gay males (attitudes about lesbians have always been different for some reason-- witness the popularity of lesbian pornography even among homophobic males). It is not anymore. It hasn't been socially acceptable to harbor such a prejudice in educated circles among East and West Coast elites for some time, of course (and the presence of a number of gays among Republican party poobahs, is evidence of this). But now, people are beginning to believe this all over the country. Ellen DeGeneres doesn't threaten anyone, and neither does Will and Grace, or Tom Hanks and Antonio Banderas in Philadelphia. In that sense, Goldberg is totally right; cultural conservatives have lost the war over homosexuality.

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