Shockingly, Andrew Sullivan is elated by yesterday’s ruling that sodomy is protected by the Constitution.
Frank sexual discussion follows.
His essay begins thusly:
Have you committed sodomy lately?
You may be surprised to know that, in all likelihood, you have. Sodomy, after all, is not theoretically restricted to homosexuals. It’s an act that can be engaged in by two people of the same or opposite sex.
And as a legal matter, it has by no means been restricted to anal sex between two men (its most popular meaning). Sodomy statutes — not unlike the one just struck down by the U.S. Supreme Court in Texas — have long included a whole variety of sexual behaviors, specifically fellatio and cunnilingus, whether heterosexual or homosexual.
Theologically, the definition is broader still. The natural-law tradition, which invented sodomy as a concept in the Middle Ages, defines it as any sexual activity outside reproductive heterosexual intercourse — that is, masturbation, coitus interruptus, using contraceptives and even, in some texts, incorrect sexual positions. In fact, it’s relatively hard to have anything we might call sex today — including foreplay — that doesn’t have some sodomitic aspect to it.
He’s correct, of course, and illustrates why the Texas law was unwise public policy.
But ask yourselves this one: Can you imagine James Madison, Alexander Hamilton, and Benjamin Franklin sitting around the table in Philadelphia having this conversation:
Jim: What say you gentlemen regarding cunnilingus? Is this a matter best reserved to the several States? Or should the central legislature have jurisdiction over this issue?
Alex: Obviously, Jim, this matter is too important to be left to the States. Indeed, we should also delegate matters relating to anal sex to the legislature.
Ben: Gentlemen, gentlemen. Sodomy is a fundamental liberty, no less important to the existence of a free Republic than free speech, a vigorous press, the right of habeus corpus, and masturbation. We must prohibit all regulation of such conduct.”
