Reports from yesterday afternoon’s Supreme Court oral arguments seemed to have gone well for those arguing against the criminalization of private, consensual sex. Here’s the most thorough – and occasionally funny – account I can find – Dahlia Lithwick’s account in Slate. I have to say that reading Antonin Scalia’s brusque and bizarre interjections is a surreal experience. For my own part, here’s an essay I wrote for The New Republic on the history and morality of sodomy laws. It’s not a short piece, clocking in at around 6,000 words. Money paragraph:
As a simple empirical matter, we are all sodomites now, but only homosexuals bear the burden of the legal and social stigma. Some studies have found that some 90 to 95 percent of heterosexual couples engage in oral sex in their relationships; similar numbers use contraception; a smaller but still significant number practise anal sex. We don’t talk about this much because we respect the privacy of intimacy, as we should. The morality of sex in today’s America and Western Europe is rightly one in which few public moral judgments are made of any sexual experiences that are private, adult and consensual. Within these parameters, non-procreative sex is simply the norm. But to say they’re the norm is perhaps too defensive. The norm is also, many have come to understand, a social, personal and moral good.
The case in front of the court is about the right to privacy, equal protection and so on. The case I make is something related but more fundamental. I try to argue that sodomy – i.e. non-procreative sex, whether heterosexual or homosexual – should not merely be defended negatively. It needs to be defended positively. It can indeed be an absolute moral good. I may persuade you. I may not. But I hope you’ll at least engage my take on some of the most basic questions related to this subject.