AIDS & the Law
To the Editor:
It is curious that in defending the Supreme Court’s decision on sodomy, David Robinson, Jr. [“Sodomy and the Supreme Court,” October 1986] should invoke the public-health risk of AIDS, an issue which long postdates the legislation he seeks to justify. One wonders whether, if some equally dire health hazard should some day be discovered in circumcision or holy water, he would reconsider the issue of religious freedom. Or could the eventual spread of AIDS to the heterosexual community justify similar strictures against all sexual relations?
What is insidious about Mr. Robinson’s reasoning is that it attacks not the evil itself—ostensibly the transmission of AIDS—but rather ancillary behavior that is only a contributing risk factor. Surely the fact that sodomy can be, and commonly is, practiced with virtually no risk of spreading AIDS (by females and by noninfected heterosexuals and homosexuals who take appropriate precautions) must be of crucial relevance to its legality. The distinction is as fundamental as that between possessing a gun and actually using it to kill someone.
On closer examination, Mr. Robinson’s argument is further weakened by an underlying, unstated paternalism. Although he claims to argue on grounds of public health, he fails to show how the risk of AIDS affects anyone other than those who voluntarily indulge in high-risk behavior (i.e., sodomy or the sharing of drug needles). While in fact the rest of the public does face a small risk of picking up AIDS from blood transfusions and other accidents, Mr. Robinson does not discuss this—not surprisingly, since the risk is minor compared to other public-health hazards, and likely to remain so. Mr. Robinson’s desired prohibition of sodomy is therefore of scant benefit to himself or to the rest of us who refrain from high-risk homosexual activity. Instead, the apparent “beneficiaries” are members of the homosexual community—who most vociferously reject Mr. Robinson’s paternalism.
The question of why Mr. Robinson is so eager to preserve the sodomites whom God would destroy is best left to homophobic fundamentalists. Nevertheless, homosexuals may rightly suspect that Mr. Robinson is not so much interested in their welfare as in stigmatizing them for what are the practices of an imprudent minority. The rest of us, including the tens of millions of Americans who safely practice nontraditional sex, would do well to join them in opposing Mr. Robinson’s legal efforts to impose Old Testament morality on spurious grounds of public health.
To the Editor:
I had little doubt that Bowers v. Hardwick had been correctly decided until I read David Robinson, Jr.’s article. It was such a strained defense of the result that I had to reread the case to satisfy myself that indeed my initial reaction was correct.
Thank heavens the Supreme Court did not accept Mr. Robinson’s invitation to find an after-the-fact justification for Georgia’s anti-sodomy statute in the unfortunate relationship between homosexual conduct and human disease. Had it done so, it would have created further warrant for the peculiar notion that the state is entitled to protect individuals from the foreseeable consequences of their own, volitional acts. Mr. Robinson’s suggested justification would also have been an irrational basis for decision, because among heterosexuals at least, AIDS is apparently as likely to be transmitted by legal sexual activity as by sodomy, and because more disease has been spread by old-fashioned, heterosexual, missionary lovemaking than by all the homosexual coupling in history. Fundamentally, people ought to have a right to be wrong, even self-destructive. As a matter of social policy, the Georgia statute is silly, and not to be salvaged by Mr. Robinson’s proffered rationale that Georgia was only trying to protect homosexuals from the fatal consequences of their lusts. It is refreshing to see the Court spurning a clunker every now and then.
The recognition that society ought to respect the right of individuals to differ—to be wrong, if you will—permeates Justice Blackmun’s lucid dissent, and were it not for an analytical omission that goes to the heart of the issue, the fair observer would have to conclude that the dissent is both emotionally and logically more compelling than the majority opinion.
The weakness of the dissent is that, as much as one might agree that the state has no business telling adults they can’t bugger each other in the privacy of their own homes (even if it is bad for them), that is not what the Constitution says, and unless the Constitution means whatever five Justices say it means, you cannot torture the text to yield that result.
The dissenters did not mind stretching the Constitution to serve their sense of the good society because they come from a school that has long viewed federalism—a concept central to the constitutional scheme—as no more than an embarrassing anachronism. Hence they are unwilling to defer to the judgment of the people and their elected representatives, whenever that judgment results in choices these judges wouldn’t have made. . . .
The fact is that the Constitution, as great a creation as it is, by its terms preserves only a narrow sphere of human activity from government interference, implicitly relying instead upon the diversity of the several states to ensure that a person feeling himself unduly constrained by the exercise of the police power in one location can find a more congenial environment in another. That is, Mr. Hardwick’s recourse against the allegedly inhibiting effect of the Georgia statute—and it is only in the Alice in Wonderland world of constitutional posturing that Mr. Hardwick and his co-petitioners, Jane and John Doe, could claim with a straight face to be inhibited by this statute—is to move to one of the many jurisdictions where the law indeed supports his right to engage in sodomy with his bedroom door open. For all but a few forms of activity—and the areas in which governmental interference is proscribed are spelled out quite clearly in the Constitution . . .—the harsh truth is that “like it or leave” is the constitutional norm.
Bowers v. Hardwick was decided correctly because there should be few occasions on which we look to a single source, be it the Congress or the Supreme Court, to tell all fifty states at once what they may forbid or require. Encouraging five Justices of the Supreme Court to determine what is or is not “implicit in the concept of an ordered liberty,” according to their shifting lights, is a greater threat to our freedom than is permitting a state to maintain a silly statute that is apparently impossible to violate.
Mr. Robinson, who relegated the federalism implications of Hardwick to a few lines, would have done a real service had he discussed the case in terms of judicial respect for the text of the Constitution rather than as a missed opportunity to strike a blow against insidious sexual practices.
Maynard F. Thomson
To the Editor:
After reading “Sodomy and the Supreme Court,” I was tempted to ask, What is a nice Jewish magazine like COMMENTARY doing publishing a homophobic article like that? Mr. Robinson, a medical layman, believed that upholding the sodomy laws would assist in responding to the AIDS crisis. He contacted various professionals, including the American Public Health Association (APHA), to solicit their support. They rejected his motives and the APHA, instead, submitted an amicus brief opposing such laws on the grounds that they undermine public-health measures. Unable to find a medical professional to submit such a brief, Mr. Robinson filed on his own behalf. . . .
It is generally believed by health professionals that fear of discrimination makes homosexuals reluctant to take appropriate measures such as early medical examinations and testing that reduce the spread of AIDS. Homosexual organizations are the main providers of information on safe sex practices that prevent the spread of AIDS. Yet the sodomy laws have been used to deny recognition and funding to such organizations on university campuses. Public-health decisions should be left in the hands of qualified medical professionals. Sodomy laws were not necessary to close homosexual bathhouses and bars in New York and California when they were considered to be a menace to public health.
Had Mr. Robinson confined his remarks to self-serving comments implying that his layman’s medical opinions swayed the Court toward a rational solution to the AIDS epidemic, we could dismiss him as a mere crank. However, his comment that Justice Blackmun’s dissent “invoked the liturgies of autonomous hedonism” betrays his undisclosed motives and a homophobic mind set. . . .
James A. Webber
San Luis Obispo, California
To the Editor:
David Robinson, Jr. was surprised that the American Public Health Association opposes sodomy laws. I’m not. The APHA’s opposition springs not from any libertarian distrust of overweening government; it reflects, rather, the organization’s location on the political spectrum: to the Left of the San Francisco Democrats. What the APHA and groups like it have done is to medicalize politics. That is, they condemn in their professional capacities anything that is not good for your health—like getting hit by a nuclear bomb.
Such shenanigans exact a penalty. In the case of sodomy, it has meant an abdication of professional responsibility, the abandonment of the duty to warn against predictably dangerous acts.
Sodomy leads to fecal contamination, which is the microbiological equivalent of eating sewage. That is, it is the sanitary equivalent of a journey to the Third World or a trip backward in time to the early 19th century, before cities like London had pure drinking water and sewers.
The result, for homosexuals, has been an alarming rate of infection by bowel pathogens, both bacterial and parasitic. Most of these pathogens were described in the late 19th and early 20th centuries, and their mode of transmission was perfectly understood well before the arrival of the sexual revolution of the 1960′s. And all this, of course, occurred before AIDS. . . .
Robert Carlen, M.D.
Sayville, New York
David Robinson, Jr. writes:
I do not share Dale Gieringer’s abhorrence of paternalism with respect to homosexuals (or others), and I also cannot agree that AIDS affects no one who refrains from voluntarily indulging in sodomy or intravenous drug abuse. Many members of high-risk groups do not confine their sexual contacts to others who are similarly inclined. According to the Kinsey studies, most males who have homosexual experiences are at least somewhat bisexual. Drug abusers are usually heterosexuals. Female drug users often turn to prostitution and may spread the virus among their patrons and hence to their patrons’ wives, other sexual partners, and offspring, although the degree of female-to-male communicability is still in dispute. The percentage of AIDS cases attributed to heterosexual behavior in the U.S., while still comparatively small, is rising. Furthermore, as of June 1, 1986, 345 cases of pediatric AIDS had been reported to the Centers for Disease Control, of which 82 percent had been diagnosed by the age of three.
The president of the Institute of Medicine of the National Academy of Sciences has noted that “Already, thousands of cases of AIDS in the United States are beginning to strain the capacity and deplete the resources of hospitals, physicians, nurses, and others in the cities hardest hit by the disease. A constantly increasing population of AIDS patients will severely burden the health-care system, including the components of science and education that underpin it.” The Public Health Service estimates that in the year 1991 alone, direct health-care costs for AIDS patients in the U.S. are likely to be between $8 and $16 billion. This does not include the costs of medical care for those with AIDS-related complex and those who are asymptomatic carriers of the virus, each being a far larger group. Individually, care for AIDS patients from diagnosis to death normally costs between $50,000 and $150,000. These expenses are not primarily borne by homosexuals and drug abusers.
Mr. Gieringer also argues that sodomy statutes are overly broad, that they are directed not only to virus-spreading behavior but to contacts which do not have that effect. This is true but inevitable with any such proscription, and it is ordinarily not fatal to the validity of a statute unless the activity forbidden is proclaimed to be a fundamental right. To pursue the example which he uses, it is commonly thought wise—or at least constitutionally permissible—to punish the public discharge, carrying, or even possession of handguns, not only the using of them for homicide.
Maynard F. Thomson makes an observation which is respectable, if familiar, in academic commentary: the Constitution lacks textual support for the right-of-privacy decisions. I stated the same thing in my article, although in less extreme terms. Yet even had I been representing the State of Georgia in the Hardwick case, I would not have made such an argument to the Court. It has been consistently rejected in many cases decided during the last quarter of a century, and the Court has made it clear that it is unacceptable today. Unless an advocate has no aversion to malpractice, he must urge that his position is consistent with prior cases. The task of counsel for Georgia required, for example, that the abortion and other pro-creational liberty cases be distinguished from the sodomy situation, not grandly dismissed as illegitimate. Articulating concerns with respect to federalism was also an important component of the briefs filed by Georgia.
My own role as an amicus curiae was a more narrow one. It was predicated on intense concern that the public-health efforts to respond to the AIDS catastrophe not be impeded by a decision by the Supreme Court. For better or worse, the Supreme Court often acts as a super-legislature, pursuing a logic of consequences rather than mechanically deducing its conclusions from abstract premises. Even a year ago, when my brief was filed, detailed information relating to the epidemic was much less available in the general media than it is today. As the attorney who was representing Georgia had informed me that he did not intend to raise the AIDS problem, I felt that I should assemble accurate scientific information and relate it to the legal issues in Hardwick in a brief. That is what I attempted to do. I did not expect that the AIDS situaion would be explicitly relied upon by the Court in its opinion. It is less difficult and controversial to write such documents in more conventional legalistic terms. Yet I felt that the epidemic might and should be seen as a powerful reason not to extend the right to privacy beyond the already-settled areas to protect sexual behavior which was causing the deaths of thousands of people.
In the abortion cases, the Court had considered the constitutionality of the statutes in light of the contemporary medical risks of the procedures. It did not confine its attention to the medical risks at the time the statutes were passed. My brief urged that it do the same in Hardwick as well.
James A. Webber’s questioning of my motives is illustrative of the use of personal invective which has discouraged rational discussion of the AIDS tragedy, particularly in public and political forums. Although my motives are not relevant, let me attempt to assure him that my study of the AIDS epidemic antedated the decision of the Supreme Court to review Hardwick. My inquiry has focused on legal ramifications of the disease, not on homosexuality as such. “Autonomous hedonism,” of course, threatens both heterosexuals and homosexuals.
As for Mr. Webber’s assertion that public-health decisions should be left to the medical professionals, it must first be noted that these people are sharply divided in their opinions. More fundamentally, the public-health problem is only partly a medical one. It is also—as the Institute of Medicine of the National Academy of Sciences has noted—a problem of allocating financial resources, of attempting to balance concerns about health needs against interests in individual liberties, and of politics. Many homosexual organizations have understandably sought to influence these decisions. Finally, in view of the absence of effective vaccines or curative therapies, efforts to respond to the epidemic must seek behavioral change, a matter which tends to transcend medical solutions.
I am grateful to Robert Carlen for sharing his knowledge of the role which politics has played in decisions of the American Public Health Association. Dr. Carlen’s observations parallel those which I have received from other physicians. As Dr. Carlen also notes, the serious medical risks of sodomy are not limited to those associated with AIDS.