By Philip A. Dynia Posted August 19, 1992

To the editors:

Sodomites began to realize that, if all actions were governed by natural laws, then their sexual conduct could not possibly be unnatural. The inevitable dialogue between proponents of the two world-views took place in seventeenth-century Italy when a confessor told a sodomite, "This is a sin against nature," and was told in reply, "Oh father, but it is very natural to me."¹

[L]egal scholars often are stigmatized by their peers for addressing homosexual issues, and...the legal community often trivializes and ignores legal issues involving homosexuals.²

Professor Harry V. Jaffa's "book review" of Richard Mohr's Gays/Justice (in Volume 8, No. 1 of Constitutional Commentary) may well top the dismal evidentiary heap. I am reluctant to call Jaffa's piece a book review — only 47 of its 161 lines discuss Professor Mohr's arguments (which Jaffa either misunderstands or ignores completely). The remainder is homophobic, (arguably) misogynous screed cum jeremiad verging on the hysterical (in both the clinical and comic sense of the word).

Jaffa begins in this way: "The author is — we are told by the dust jacket — an 'openly gay professor' who...." The gift for nuanced innuendo Jaffa displays here will occur. The quotation marks around "openly gay professor" seem merely to indicate Jaffa is quoting the dust jacket. But there is also the hint of some kind of contradiction between being gay and being a professor — much like my use of quotation marks when I refer to Jaffa's "book review." Jaffa probably would deny vehemently that the validity of a person's arguments should be judged on the basis of his or her sexual orientation, but those who do so (often unconsciously) have all the information they need about Gays/Justice.

Later Jaffa tells us that "[h]omosexuals like Professor Mohr take the position that whatever is done by consenting adults is morally right." It is unclear whether Jaffa means "some" homosexuals (Mohr included) or "all" homosexuals — probably the latter, since Jaffa's subsequent remarks suggest a monolithic and stereotypic view of gays (i.e., gays as promiscuous slaves to "the uncontrolled indulgence of sexual perversion" and the inevitable "bathhouse culture") quite out of touch with the reality of many gay lives — even before AIDS. At any rate, he has again reminded us of Mohr's sexual orientation, which may deflect attention from the distortion of Mohr's views. Mohr, and other philosophers, gay and strait, at least since the openly heterosexual John Stuart Mill, take the position that whatever is done by consenting adults — especially in the privacy of their bedroom — is not concern of the government if what they do causes no harm to themselves or others. Laws forbidding their actions based on religious views or majority loathing cannot be morally justified. As Mohr explains:

[T]he feelings of disgust that some people have to gays will hardly ground a charge of immorality. People fling the term "unnatural" against gays in the same breath and with the same force as calling gays "sick" and "gross," and when they do this, they give every appearance of being neurotically fearful, while at the same time violating the moral principle that one needs justifying reasons for moral beliefs.

When "nature" is taken in technical rather than ordinary usages, it looks like the notion also will not ground a charge of homosexual immorality. When unnatural means "by artifice" or "made by man," one need only point out that virtually everything that is good about life is unnatural in this sense....

Jaffa continues:

This position has implications that extend beyond sodomy to other sexual practices that have traditionally been condemned as immoral. Consider, for example, the question whether incest is wrong. We find this curios sentence in the book before us: "Incest used to be considered unnatural [sic!] but discourse now usually assimilates it to the moral machinery of rape and violated trust." Mohr seems reluctant to say candidly that the abhorrence of incest is just another superstition. But someone who cannot say that sodomy is unnatural cannot say that incest is unnatural. Mohr, like other advocates of "sexual liberation," appears to make consent rather than nature the ground of morality, without regard to what is being consented to. Incest, in this view, is bad only when the victim is too young or dependent to give "informed consent." It becomes morally accepted when the parties are both adults.

The line that so discombobulated Jaffa is on page 34. Clearly Mohr is reluctant to say either sodomy or incest is unnatural because their "naturalness" vel non is irrelevant to whether they are immoral. He is saying that like rape and violated trust, incest is immoral. He believes the law can punish rape and there I assume he also believes the law can punish incest. Later he says that "not everything that is consensual is private" and suggests that incest, like marital rape and child abuse, is illegitimate. But that's on page 105 (of a 357-page book) — since the quotation above is the last we ever hear about Mohr or his ideas in Jaffa's piece I suspect Jaffa never got that far.³ From the little Mohr says about incest, it seems unfair to attribute to him the belief that incest between consenting adults is either moral or beyond the law's reach.

Jaffa neither discusses nor evaluates the validity of Mohr's criticisms of Bower v. Hardwick. To paraphrase Professor Tribe, the central question posed by that case is not what Michael Hardwick was doing in his bedroom, but what Harry Jaffa's forces were doing there. In Hardwick, five of the nine justices agreed — unfortunately, not all at the same time — that what Hardwick was doing was protected by the Constitution against State intrusion. I presume Jaffa would join justice White's opinion on the grounds that sodomy is immoral because unnatural. As Jaffa puts it: "Sodomy is against nature, since it treats men as if they were women." So much for the position of women in Jaffa's schema. (Is he defending the morality/legality of heterosexual sodomy?) At least he answers a question bewildering constitutional scholars since Justice Holmes. The Fourteenth Amendment enacts Aquinas' Summa Theologica. Or maybe Plato's Laws.

The remaining two pages should have been published as an editorial in The Dartmouth Review or Osservatore Romano. Jaffa bemoans the dissolution of the traditional family — "at the root of nearly all the social problems afflicting contemporary American society" — and the rise of "'alternative lifestyles.'" "Legalizing sexual perversion could only make matters worse."

Among contemporary social problems, he is particularly concerned about AIDS. Jaffa writes:

The first cases of AIDS — and the first isolation of the HIV virus in the United States — occurred in 1981. In its origins it was entirely a disease of male homosexuals, generated in and by anal intercourse. At the present time, according to the latest statistics I have seen, more than eighty-five percent of AIDS cases are male homosexuals...While the proximate cause of AIDS may not now in every case be sodomy, the etiology of every case leads back to sodomy as its point of origin.

At this point, Jaffa is not just writing nonsense but — to borrow a phrase from a philosopher Jaffa ought to read more often — "nonsense upon stilts." Vicious, malignant nonsense.⁴ Jaffa's statement will be a revelation to the million people who in recent months, according to the World Health Organization, contracted HIV worldwide, 90% through heterosexual intercourse; enlightenment to those in the medical community who believe that HIV is a mutation of SIV and originated in Africa, where it was first transmitted from monkeys to humans. (Perhaps Jaffa theorizes that the virus was "generated" by a flamboyant San Franciscan buggering a chimp while on safari in the 1950's.)

Jaffa has an even more profound question upon which to instruct us:

Why AIDS now? That the first case was diagnosed a little over a decade after the "Gay Rights" and "Gay Pride" movement gained momentum may not be coincidental.... Homosexuality has always been with us. But in the last generation we have seen it "come out of the closet." We have seen growing public acceptance of the doctrine that there is no moral distinction between promiscuity and chastity.... That nature itself seems to reward chastity with health, and punish promiscuity with disease, is seldom if ever mentioned....

It would certainly seem that nature had an interest in the morality that is conducive to the family, and punishes behavior inimical to it. I would suggest therefore that the quest for a cure of AIDS, unaccompanied by any attempt to modify the behavior out of which AIDS was generated, is ultimately futile. I would venture to suggest that if a cure for AIDS were discovered tomorrow, it would not be very long before a new venereal disease would make its appearance....

As an abstract debater's point, one might perhaps distinguish between homosexuality and promiscuity.

Jaffa staunchly resists the impulse toward fundamental fairness — never mind logic — hinted at in that last sentence. But there we have it: Homosexuals (all rabidly promiscuous by nature) created the HIV virus by their unnatural sex acts. If the gay liberation movements had sprung up in ancient Greece or Rome, the virus would have generated much earlier. At any rate, nature will guard the traditional family, even if it means killing every queer on the planet. And every promiscuous heterosexual (if as an abstract debater's point we distinguish between homosexuality and promiscuity.)

Consider another abstract debater's point. Jaffa's etiological inquiries reveal that "AIDS can be contracted by women from bisexual men, and they in turn may spread it to other men and thereby to other women." Among traditional families, presumably there are some in which only one partner is promiscuous, but nonetheless the non-promiscuous one becomes infected with HIV through sex with the promiscuous partner. Apparently, in its zeal to protect the traditional family, nature has created a virus that cannot distinguish between promiscuous and not, let alone gay or strait, and is not destroying people whether in traditional families or pursuing "alternative lifestyles." Can nature get nothing right? Maybe next time nature will come up with some disease that only kills promiscuous queers (is the phrase redundant?). Until then thank "nature's God" for latex.

Jaffa concludes: "No civilized person today wants to persecute homosexuals, or to see them suffer and die form horrible diseases. But it is equally true that no civilized person should wish to see homosexuality accepted as an equally valid 'alternative lifestyle.'" An important step toward ending persecution of gays would be the passage of anti-discrimination laws of the kind Mohr defended at great length. Mohr also had strong views about the AIDS crisis and government's responsibilities to respond. Jaffa never mentions these sections of Gays/Justice. The governmental actions that were taken — i.e., none, at least while it seemed only gays were dying — are consistent with the Jaffaesque philosophy quadrennially dusted off by the Reagan-Bush-Quayle administrations.

Whether eliminating laws criminalizing sodomy in the privacy of the bedroom between consenting adults would "only make matters worse" I do not know.⁵ Five reasonably civilized gentlemen — Harry Blackmun, John Paul Stevens, William Brennan, Thurgood Marshall and (however belated) Lewis Powell — did not think so. I do know that no person who thinks sexual orientation is simply a lifestyle choice (as if someone would choose a life of public and private discrimination and subjection to serious, sometimes lethal, violence); who premises his argument against sexual relations between males on the supposedly degraded status of women; who blames victims for their disease — no such person can be taken seriously when he pontificates on the values that define a civilized person.