Baseball Crank
Covering the Front and Back Pages of the Newspaper
August 5, 2003
LAW: The Dog That Didn't Bark

Harvey Fierstein, writing in last Thursday's NY Times about his view that too many young gay men are too cavalier -- or worse -- about HIV, argues that "Many of our young men see infection as a right of passage, an inevitable coming of age."

Um, shouldn't that be a "rite of passage"?

The article, by the way, reminded me of something interesting. Maybe I missed something, but in all the hoopla over the Supreme Court's determination in Lawrence v. Texas that there was no legitimate state interest in banning homosexual sodomy while not banning heterosexual sodomy, I didn't see anybody -- parties or commentators -- argue that homosexual sodomy is uniquely likely to spread disease. Certainly, such an argument would not be entirely implausible, given the history of the AIDS virus and the fact (correct me if I'm wrong about this, but I'm sure I've read this somewhere) that anal sex in particular is conducive to passing germs from one bloodstream to the next, as well as the fact that the Court in the past has accepted restrictions on liberty (such as mandatory vaccinations) in the name of medical science.

The absence of this argument is interesting on a couple of levels. First, I suspect that the proponents of the law either wanted to test the assertion that morality alone is a valid basis for law or felt that Justices Kennedy and O'Connor would be more receptive to that argument. Second, it now seems that people may feel that a "medical" argument connected to AIDS is actually more offensive or stigmatizing than a moral one, and thus may have felt it improper to make the argument. Third, times have changed since 1986 and Bowers v. Hardwick; while the opinion says nothing on the subject, the AIDS epidemic was certainly on many minds on the time; today, not a peep was heard about it in all the commentary. And fourth, perhaps the "medicalization of morality" -- so prevalent today in debates over smoking or even guns -- has its limits.

Posted by Baseball Crank at 6:35 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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