Sexuality and the Law

There's an interesting debate going on in the country's courts over the definition of sexuality. One of its more subtle and pernicious aspects is the way in which the courts--egged on by opponents of gay rights--has a tendency to separate homosexuality as status from homosexual acts. The argument essentially goes that it's okay to be homosexual--the government doesn't care--as long as one doesn't act homosexual--by performing formerly-illegal sodomy, announcing oneself as such, or associating with other homosexuals.

For one example of how this is important: in asylum cases, such as one recently decided by the Ninth Circuit, one can be granted asylum for one's membership in a particular social group--i.e., homosexuals--but the Attorney General has argued in denying a homosexual male asylum that "the government of Lebanon arrest[s] people because they have engaged in homosexual acts, but not[ ]...for merely being homosexual." Therefore, "the future persecution [applicant] Karouni fears would not be on account of his status as a homosexual, but rather on account of him committing future homosexual acts."

Luckily, the Ninth Circuit saw right through this argument:

the Attorney General appears content with saddling Karouni with the Hobson’s choice of returning to Lebanon and either (1) facing persecution for engaging in future homosexual acts or (2) living a life of celibacy. In our view, neither option is acceptable. As the Supreme Court has counseled, “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” Lawrence v. Texas, 539 U.S. 558, 567 (2003). This is but one reason why “the[ ] sexual identities [of homosexuals] are so fundamental to their human identities that they should not be required to change them.” Hernandez-Montiel, 225 F.3d at 1094. By arguing that Karouni could avoid persecution by abstaining from future homosexual acts, the Attorney General is essentially arguing that the INA requires Karouni to change a fundamental aspect of his human identity, id., and forsake the intimate contact and enduring personal bond that the Due Process Clause of the Fourteenth Amendment protects from impingement in this country and that “ha[ve] been accepted as an integral part of human freedom in many other countries,” Lawrence, 539 U.S. at 577; cf. United States v. Marcum, 60 M.J. 198, 208 (2004) (recognizing that United States military “servicemembers clearly retain a liberty interest to engage in certain intimate sexual conduct”).

Let us hope this spells the beginning of the end for the "freedom for the sinner, jailtime for the sin" mentality applied to homosexuals.

(The decision in Karouni v. Gonzales, 02-72651, is available online in PDF.)