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6. The threat of criminal
sanctions encourages extortion
and police corruption.
7. There is injury to the
institution of marriage, created
by the "threat" of prosecution
(no matter how unrealistic this
may be), the establishment of
sexual taboos and the possible
inability of married couples to
obtain good professional advice
because of statutes outlawing
the very conduct which professionals might advise.
8. One intuits that the
moral climate and sense of the
national community does not
adamantly insist upon punishment for sodomous behavior.
9. There is no evidence
that there is an iota of functional harm caused by any of
these practices.
10. It is not desirable to
develop the disrespect for law
that is engendered when it is
violated with impunity by millions of persons.
The key to constitutional
attack on sodomy statutes is
the lack of any secular or
functional interest in society's
preventing the condemned acts.
There is no evidence that buggery, oral-genital relations or
bestiality adversely affects
the physical or mental well
being of the participants. If
there were some evidence, only
then would we be faced with
the more common dilemma posed by statutes that purport to
protect individuals from themselves (such as marijuana
laws).
TheMojority
Sodomy laws are really
nothing but laws on morality,
with no substantive basis other
than history, founded almost
entirely in religious beliefs.
Some have argued that the
government has a legitimate
interest in protecting the peace
of mind of the many people who
object strongly to sodomy -
that these people feel safer by
knowing that those who perform
sodomous acts are committing
crimes. This position would
justify any legislative act
desired by a majority. A majority could always restrain a
minority, whether or not the
conduct of the minority interfered with the conduct of the
majority. Sodomy laws do not
further the majority interest,
for the majority is in no way
affected by what others may do
with their private sex lives.
Given the basic premise
that there is no rational, let
alone compelling, secular or
functional justification for
sodomy laws, one can begin to
construct a constitutional
theory for attack. This is not
the place to go into the ramifications of constitutional
theories, but a broad outline
suggests that the First Amendment's ban on the establishment of religion, the due process clauses of the Fifth and
14th Amendment, the Ninth
Amendment, and the .concepts
of privacy all can be utilized
in attacking sodomy laws;
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—- MOVIE ARCADE 25*
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At a time when some
courts are ready to knock down
restrictions on hairstyles, anti-
abortion statutes, and requirements for motorcyclists to wear
helmets, the sodomy statutes
should be easy prey. Indeed,
if it were not for the emotionalism that surrounds the subject,
these anachronisms would probably have been laid to rest long
ago.
George Schatzki is on the
faculty of the University of
Texas School of Law and is
vice president of the Texas
CLU Board of Directors. He
wrote the CLU's amicus brief"
in a lawsuit last year that
successfully challenged Texas's prohibition of sodomy between married couples.
The NECKTIE
John E. O'Connor
For, her.trip down to the
railroad station Mrs. Hartley
had put on her lightest summer
dress, a white skimmer silhouette with open collar and brass
buttons. She had better dresses,
but none more cool. Though on
a day like this, Mrs. Hartley
decided, coolness was simply
impossible. Nothing less than
air conditioning could have
saved her from the murderous
Houston heat, and by the time
the taxi had reached the station
she was prespiring freely. It
wasn't much better inside the
station house, despite the
noisy working of a fan perched
upon the cigarette machine.
The clerk on duty informed, her
that the train from New York
would be fifteen minutes late,
so Mrs. Hartley went outside
to the station platform, and
there she waited.
There was a meager breeze
on the platform and the air was
heavy with the smell of salt
and loud with the shouting of
three negro children playing
tag on the vacant lots between
the railroad and the warehouse
district. With a handkerchief
Mrs. Hartley patted away the
little slivers of perspiration
from her upper tip. She didn't
mind her discomfort. What worried her was the possibility of
her looking a fright by the time
the train arrived, bringing home
her son Glenn, whom she hadn't
seen for years. Mrs. Hartley
wanted to look good for Glenn.
She had the sort of open, large-
featured face that never loses
its beauty, and a figure that
was extraordinary for a woman
of fifty years. Mrs. Hartley felt
a sudden surge of pleasure,
brought on by the familiarity of
the station house and the vacant lots and the warehouses.
They took her back to the early
years of her marriage, when she
and Mr. Hartley and Glenn had -
lived in a duplex just four
blocks from the station and
right across the street from the
Leveri dges'. The Leveridges
were good neighbors who soon
became their best friends. They
had two children: a daughter,
Louise, whom Mrs. Hartley did
not see' much of, since she
played with the girls from a
different block; and ' a son,'
Rick, whom Mrs. Hartley saw
almost as frequently as Glenn,
for the two boys were constant
companions. Mrs. Hartley and
her husband had always approved of Rick as a playmate
for Glenn: they seemed pretty
evenly matched in strength, in
intelligence,and in disposition,
without either tending to overwhelm the other. After school
and during their vacations, the
boys would go off together,
usually to the lots by the railroad,which had been unofficially designated as the neighborhood playground. They were
inseparable. Even after the
Hartleys had moved from Newport News out to Warwick, the
boys would commute by bus or
bicycle to each other.'s home,
and that soon became unnecessary when the Leveridges themselves moved out to Warwick.
The boys attended grade school
and high school together, took
the same courses, doubledated
with the same girls, and chose
to attend the same college.
They had chosen Dartmouth.
Each week Mr. ond Mrs.
Hartley would receive one of
Glenn's good long newsy letters, which always contained
much mention of Rick: how he
and Rick enjoyed their double
in Richardson Hall; how Rick
had received a bid from Zeta
Psi and Glenn had not, while
Glenn had received a bid from
SAE and Rick had not, and so
they'd decided not to join any
fraternity (that decision had
bothered Mr. Hartley, a good
SAE man), and how they were
both developing ambitions for
for the legal life. The ambitions held, and after graduation
from Dartmouth, the boys enter?
ed the Columbia school of Law
where they studied for three
years. It was after those three
years that the boys started going in different directions,
although they did remain in
New York and share the same
apartment on the East Side.
Glenn became a junior partner
for a new vigorous legal firm,
while Rick became a salaried
consultant for an insurance'
company. Mrs- Hartley had always wanted to go to New York
to see them, but she had been
tied down by 6rie; thing or
another in Newport News: her
husband's death, the time-con--:
■sum'ihg task of managing his
estate, her presidency of the
Women's League, and other ■
matter's. During those years
Mrs. Hartley had seen Glenn
only once - ages ago it seemed, and that was during the
frantic ordeal of Mr. Hartley^
funeral. Only recently had she'
found herself, for the first time
in her adult life, without any--,
thing important to do. Whe had ■
finally resolved to visit Glenn'
at the end of summer when,
yesterday morning, she had
received a long-distance phone
call from her son. What he said
had given her a great shock.
He was coming home. He had
given up his practice and was
leaving New York for good.
Why? He wouldn't say over the
phone. "But what about Rick?"
Mrs. Hartley had asked. It
seemed that Rick was staying
behind. Glenn's voice had had
on unusual matter-of-factn ess
about it, and Mrs. Hartley had
listened for some clue, some
indication. . -
"He' come de train," the
negro girl announced. Mrs.
Hartley looked uown the tracks.
Sure enough the train was
coming. A small crowd had
gathered on the platform, and
now they moved out from beneath its shade over to the
place where the passengers
would alight. Mrs. Hartley
could feel her excitement
mounting as she accompanied
them.
As the train ground and
clattered to a stop, Mrs. Hartley scanned the windows for
Glenn's face, but it was not to
be found. Anxiously, she
watched the passengers as they
filed out, and was beginning to
think that Glenn must have
been delayed when she felt
someone squeezing her arm.
She turned around. It was
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