This Is NOT a legal/political blog, right?

[The brilliant and able Tin Man recognizes some words by gaily conservative writer Andrew Sullivan. What follows is a slightly revised version of the email I sent Jeff in response to his posting:]

["I had some thoughts about your post on Andrew Sullivan's 'In Defense of Lawrence.' I should say first that I haven't read Virtually Normal, but have read many of his columns, online and off-, as well as enough commentary by others I admire to form something of an opinion of his world-view."]

["Starting from the the top of 'In Defense...', the first quote with which I have problems is 'as long as you acknowledge that gay people are human beings with no choice over their orientation, there can be no Constitutional or moral defense of sodomy laws, period.' I've always disagreed with the 'we can't help ourselves' argument; as with the whole 'nature vs. nurture' debate about homosexuality's origins, my short-form response to it is 'who cares?' I think the 'we have no choice' argument is used as a strategy to undermine moral objections to homosexuality - 'if God (or nature) made our orientation an immutable part of our selves, then it can't be wrong.'"]

["This argument is illogical, however. Other sexual behaviors that society still finds wholly immoral (that list of horrors of which Santorum and Scalia, for example, are so fond) are just as compelling to the people who practice them, or wish to. If someone really wants to have sex with a child, or a sheep, or their close adult relatives, they want that to the same extent that you or I want to have sex with an adult male. However, those activities are considered immoral, and those who desire to do them sick, because the objects of their orientations either can't consent in the way we understand the concept, or because such activities can result in birth defects. (The utterly arbitrary line we call the age of consent is a subject for another time.) The measuring stick is, or ought to be, 'consenting adults hurting no one else,' not whether they have a choice in the matter of their desire. (By the way, in light of Lawrence, an interesting hypothetical at the intersection of Equal Protection and morality might be, 'should same-sex relations between adult relatives be banned in the same way adult heterosexual incest is?')"]

["The argument also undermines the concept of bisexuality, the simplest representation of which is the Kinsey scale. It is usually agreed that most people are neither a 0 nor a 6, and that where we fall on the scale can change over time. If some (I'm not saying all) people can and do go up and down the scale, doesn't that resemble, at least, choice in some way? Again, basing morality on whether someone has a choice regarding his or her sexual orientation, mutable or not, doesn't reflect the reality of human relations."]

["This myopia is an example of my problem with Sullivan as a whole, actually. What I've managed to glean from his writing is that the basic middle-class, monogamous, law-abiding model that has been handed down to us as the American ideal is pretty much the only way to go, as long as same-sex couples are allowed to participate in it as fully as are heterosexual ones. In this, Sullivan is deeply conservative, and I'm a little surprised that you write with unreserved approval of someone who spouts the Republican party line in so many other matters. The American conservative viewpoint, if it can be summarized, is that the Constitution, and the institutions created and confirmed under its auspices, are eternal and good, and the changes codified in, say, the 14th, 19th, and 26th amendments, are just minor tweakings to a fundamentally sound document."]

["I suggest the leftist viewpoint, conversely, is that the Constitution is a product of its times (Sullivan admits as much when he writes '...is our Constitution, in grappling with the most vital matters of individual privacy and freedom, restricted in its view of the universe to the sexual understandings of the 1780s?'), and that the changes that have been fought for and won in American history (reflected in those amendments, and in decisions like Brown, Roe, and Lawrence) have come via ingenious, tortured maneuverings around and within the Constitution; in other words, progress, more often than not, has been achieved in spite of the Constitution rather than because of it."]

["An example is the concept of judicial review itself. As you know, Marbury v. Madison and (to an extent which I just learned, having just finished the excellent Burr by Gore Vidal) Aaron Burr's trial for treason established this concept, not found explicitly in Article III. Because federal justices and judges aren't elected and serve 'during good behavior,' extensive judicial review of laws and presidential acts has been criticized as 'activism,' untenable in a democracy. It's interesting to me that those who most often level those accusations are conservatives who never tire of reminding us that we live in a republic, not a democracy. I lump most rhetoric surrounding 'judicial activism' in with that other, related red herring, 'strict constructionism.' Both are tactics by the powers that be to retain their power, and are abandoned whenever a more innovative reading of the Constitution will attain their ends. (See Bush v. Gore.) It's a hypocritical shell game."]

["Extensive powers of judicial review don't bother me so much because democracy (direct or representative) is only one means to the ends outlined in the Preamble. As Lincoln said with his 'fool all the people' epigram, democratic processes can be and are perverted to unjust ends, and sometimes people who have spent their whole lives studying the finest points of law and government are the ones best suited to make important decisions. Should there be a check on judicial power other than death, impeachment and the self-restraint of judges and justices? Maybe. (I'm sure we can all think of fun poli-sci models for term limits, renewable terms, etc.) However, there is something reassuring about the members of at least one branch of the government not making their decisions on the sole rationale that it will help them get reelected."]

["Returning to Sullivan, I also disagree or have problems with several of his other points. He distinguishes prostitution from sodomy because it's an 'economic activity,' presumably regulable or subject to prohibition on those grounds. He dismisses by not mentioning them the real moral questions surrounding the oppression of women and girls that characterizes most prostitution, questions that should inform debate on the subject. Similarly, his quote 'the only relevant moral distinction between sodomy and masturbation is that the former requires a relationship and penalizes a class of people. To my mind, that makes criminalizing sodomy more objectionable than criminalizing masturbation' is simply inexplicable; I can only guess it's his worship, again, of monogamous relationships over even the most private and harmless sexual activity in which individuals can engage."]

["Finally, I have to disagree that Sullivan is at all times a great writer. One example is this quote: 'because gay men and women cannot have anything but sodomitic sex, they have no way to conduct sexual relationships within the law. The impact of such laws on these citizens is therefore to deny them all private sexual relationships...' Lesbians and gay men do, and always have, 'conducted sexual relationships within the law'; that's the very definition of the closet. They just haven't conducted them with their preferred object of affection. This may sound like nitpicking, but it's imprecise writing on his part, and something I catch my gay friends in sometimes. They say, 'We can't get married' and I say, 'Yes, we can - to a member of the opposite sex.' This usually starts an entertaining debate about the centrality of marriage in our society and the reasons gays and lesbians should be able to get married, or want to."]

["A last example of why Sullivan isn't the best writer: he uses 'homosexual' as a noun, rather than an adjective. Homosexual describes an act or an orientation, but shouldn't be used to label a person. (Jonno and others prefer 'homosexualist,' but that doesn't exactly roll trippingly off the tongue.)"]

["I hope any or all of this is of interest. Thanks so much for all the hard work you did blogging Lawrence and its effects. It's all been very interesting."]

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