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.”

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. drarcane says:

    Actually I can see Ben Franklin saying that.

  2. James Joyner says:

    Yeah–maybe so. 🙂

  3. Steven says:

    All I know is that I decided not to hit the extension of the post link, as I really didn’t want to read a discussion about Frank having sex, especially if it about my wife’s Uncle Frank. The whole idea gives me the willies.

  4. O. F. Jay says:

    *he said willies*

    No. But seriously James, has the discussion over “states’ rights” been the issue of the day since only the biggest bigots can say without fear of reprisal that they’d rather keep the sodomy laws?

    I’ve always believed in the law taking precedence over justice, but I also believed that when public safety and personal freedoms are at a conflict, public safety should take precedence. What am I getting at? Here, public safety was not in danger, and a law impinging on personal freedoms, freedoms which over the years have been found to be more acceptable in the social milieu, has been overturned.

    The snide remarks (not yours James) on state sovereignty and states’ rights have become a way for some Cons to show displeasure over the decision without having to look like Scalia or Santorum, and even as Con myself I see it.

  5. James Joyner says:


    Honestly, I’m not even sure why states rights would be at issue here. The 14th Amendment was clearly meant to limit states rights. The problem is that no one had suggested, before yesterday, that homosexuals were a protected class under the Constitution. And, of course, the problems of the Court-created constitutional right to privacy continue.

  6. Omnibus Bill says:

    Kennedy screwed the conservative pooch (apologies to Rick Santorum) when he framed the question in Lawrence thusly: whether morality and tradition may ever form a basis for the law.

    In holding that morals and tradition are not a rational basis for public laws, Kennedy pretty much repudiated Edmund Burke, Russel Kirk, and oh, by the way, the entire modern conservative project.

    There were many less destructive ways of getting to the same result, than invalidating two of the four things conservatives ought to hold as a rational basis for laws. (The other two being, of course, pragmatic choices based on experience, and choices the legislature makes simply because it needs to make a choice).