The Un-Natural State: Arkansas and the Queer South

SIX. A Crime Unfit to Be Named

SIX A Crime Unfit to Be Named M any Arkansans saw it as inconceivable. Many more thought it was about time. Arkansans sat over their breakfasts the morning of July 1, 1986, peering at the Arkansas Democrat headline that read “High Court Upholds Georgia Sodomy Law.”1 It had been nearly four years since an Atlanta policeman arrested Michael Hardwick in his home after he failed to show up for a court appearance related to a charge of public drunkenness. After entering the home the policeman observed Hardwick and another man engaged in oral sex. The officer arrested Hardwick for violating the state’s 1816 statute that made oral and anal sex, on the part of either homosexuals or heterosexuals , punishable by a prison term of one to twenty years.1 An arrest in a private home for consensual fellatio among adults was an extraordinary event, and the challenge to Hardwick’s case would find its way all the way to the U.S. Supreme Court. Gay advocacy and legal groups looking to challenge the constitutionality of sodomy laws could hardly imagine a better test case. There were no other issues—no participation of minors, prostitution, or public indecency—that could obscure the fact that the state of Georgia presumed to regulate sexual behavior in the home and the bedroom. Georgia attorney general Michael Bowers argued before the Supreme Court that “the most profound legislative finding that can be made is that homosexual sodomy is anathema to the basic units of our society: marriage and the family.”2 Bowers concluded that the possible decrimalization of sodomy would demote “those sacred institutions to merely alternative lifestyles.”3 The Democrat reported that the ruling dealt only with homosexual sodomy, noting that by a five-to-four decision the court upheld the principle that “consenting adults have no constitutional rights to private 75 homosexual conduct.”4 Justice Byron R. White, writing for the majority, argued that the “issue presented is whether the federal Constitution confers the fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many states that still make such conduct illegal and have done so for a very long time.”5 After asserting that the Hardwick case was asking the Supreme Court to establish “a fundamental right to engage in homosexual sodomy,” White declared, “This we are quite unwilling to do.”6 Although White’s position promoted the state’s role as guardian of traditional morality, his argument dealt mainly with the question of privacy and the individual and was written in coldly objective prose. It was Chief Justice Warren Burger, writing a separate concurring opinion, who went further in condemning the crime of sodomy, and indeed homosexuality , on the grounds of religious ideology. Burger called sodomy the “infamous crime against nature,” an offense of “deeper malignity than rape,” and a heinous act “the very mention of which is a disgrace to human nature.”7 For Burger, sodomy was truly a “crime not fit to be named.” Invalidating the Georgia statute would “cast aside millennia of moral teaching.”8 Commentary soon followed the front-page article in the Democrat. The newspaper published an essay by the syndicated columnist William Raspberry who argued that “you don’t have to be gay or kinky to believe that the state has no business sticking its nose into private bedrooms.”9 The Democrat itself, however, was not as quick to disagree with the court. Eighteen days after the Supreme Court handed down the Bowers v. Hardwick decision and after several editorials, the newspaper offered a final opinion on the case. The editorial stated that “the court has made good public policy by flinching away from any declaration that a sick, socially valueless, widely outlawed minority practice merits constitutional protection as a social good.”10 The Democrat went on to say that Arkansas should look to the Supreme Court’s decision as a forerunner to overturning Roe v. Wade, the 1973 Supreme Court decision that invalidated state laws prohibiting abortions. Despite the great concern and debate surrounding the Supreme Court’s decision, not a single state created or reinstated a sodomy law as a result of it. Besides the editorials and the front-page articles detailing the Court’s decision, the Arkansas Gazette also noted that the state of 76 A CRIME UNFIT TO BE NAMED Georgia’s sodomy law was stricter than that of Arkansas. Truly, anyone...