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On Texas's "Homosexual Conduct Law"

Section 21.06 of the Texas Penal Code is officially known, Hendrik Hertzberg tells us in last week's New Yorker, as the "Homosexual Conduct Law." Hertzberg is reporting on an upcoming challenge to the law that will be brought before the United States Supreme Court, but I found the name of the law itself remarkable.

It has got to be the most excellent name for an act of bigotry I have ever heard. For starters, you needn't read the text of any law of the form "____ Conduct Law" to know what it says: It will state that whoever the ____s are, they should just wise up and start acting like the "good" and "decent" people that passed the law already. And you know that those good and decent people aren't ____s, because then they wouldn't have needed to pass the law (already being in power and all, they can pretty much act as they please).

But knowing what the legislation says is just the start. We know also, for example, that whoever passed the law wasn't terribly enlightened in their understanding of humanity. Any "____ Conduct Law" is inherently bigoted, because it singles out a particular group with complete disregard for the actual, individual people comprising that group. An enlightened piece of legislation would be called something along the lines of "Basic Human Privacy Defense Act" or "Fundamental Human Liberty Defense Act" (or maybe "Bigot Eradication Act" — while we're dreaming of enlightened Texas legislators, we may as well pretend they have a sense of humor, too) — it would be named for the principle it stood for, not the people it wished to impose the principle on.

And, finally, we know that whoever passed a law with that name wasn't all that bright. Because, while some groups can be defined by how they look or where they come from, gay men and women simply can't; they can only be defined (legally, at least) by what they do. So a "homosexual conduct" law, on its face, can only be a law against homosexuality itself; it's a flat attempt to legislate a group into nonexistence. You can't exactly call that a law about a group's "conduct," and you can't legislate it and retain any pretense that you don't believe America would be better off as a police state.

Sad to say, this seems to have been lost even on the Texas judiciary; the Texas state court, Hertzberg reports, upheld the statute against a challenge that it is discriminatory. As he tells it, "the court pointed out that in Texas homosexuality is illegal for heterosexuals and homosexuals alike. No discrimination there."


December 16, 2002 4:49 PM

Comments (and TrackBacks)

Now I'm going to have a brain aneurysm.

Posted by Camille on December 16, 2002 10:21 PM

I wouldn't want to be a gynecologist or a proctologist in the enlightened state of Texas, where sodomy is defined, in part, as "the penetration of the genitals or the anus of another person with an object."

"Freeze! Drop the speculum and step away from the vagina! You are under arrest!"

The net social benefit of having laws regarding sexual conduct between consenting adults acting in the privacy of their own homes is what, again? I think I might have dozed off in Social Studies when that lesson was taught.

The scary thing that this goes beyond Texas with the current administration thinks Americans should be having a lot less sex.

Posted by Mr. Nosuch on December 17, 2002 12:26 PM

I wouldn't want to be a gynecologist or a proctologist in the enlightened state of Texas

No kidding. I didn't even think about that (that definition of "deviate sexual conduct" is at the top of the same page of the penal code linked above).

You would think politicians more than anyone would comprehend the value of basic human privacy -- but some politicians only seem to comprehend values of things as they apply to themselves, and not others. The people who go into politics all too often being exactly the kinds of people you don't want making the kinds of decisions politicians are supposed to make.

Posted by M on December 17, 2002 9:22 PM

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