Sexual Preference

By Gerry Schultz

When a person tells you he or she is interested in sex, you usually think you know what is meant. When that person is a Mensan, however, it may mean that the speaker enjoys recreational sex, or it may just refer to an obsession with comparative reproductive strategies among primates. Anyone can talk about sex, but it takes a Mensan to make it tedious. We at Arkansas Mensa are committed to increasing the interest level in M*Ark for everyone. Therefore, we chose this issue to take advantage of the stimulating power of sex to awaken everyone's interest. Sorry to say, however, we decided not to run the centerfold.

Sexual attraction is an issue that we will have with us as long as we are humans. Just a few weeks ago (March 26th) the United States Supreme Court heard oral arguments in the case of two gay Texans who were caught by the police having sex in the privacy of their home. A neighbor suspected them of a different kind of criminal conduct (possession of illegal firearms) and reported them to the police. When the police burst into their home, they found not weapons, but just two guys having sex. They arrested the two men, who were convicted of consensual sodomy under Texas law. The case has now made it to the Supreme Court. The Court must now revisit its decision in Bowers v. Hartwick. In that case, the United States Supreme Court held that unlike using condoms and having an abortion, there was no fundamental right to engage in homosexual sodomy. The Court noted that sodomy had historically been condemned.

Of course, there's nothing in the Constitution to protect us from stupid legislation. The question had to turn to more complex and confusing issues of equal protection. Nobody knows how it will come out, although court watchers are certain that at least three members of the Court, Justices Scalia, Rehnquist, and Thomas, will vote to uphold the prohibition. Justices Souter, Breyer, and Ginsburg seemed ready to overturn it. Some have predicted that at least five members of the court will vote to overturn the Texas sodomy law.

Of course we don't have to go as far as Texas to see the effects of anti-gay prejudice. First, we would actually have a more draconian sodomy law in Arkansas than the one they have in Texas but for the Arkansas Supreme Court's action in striking it down as unconstitutional. The Arkansas Supreme Court, in the case of Jegley v. Picado, interpreting the Arkansas Constitution, struck down a law that provided for imprisonment for up to one year for consensual private sex act between persons of the same sex. The Arkansas Supreme Court recognized that the United States Supreme Court's decision in Bowers v. Hartwick was binding as far as the United States Constitution was concerned, but found that the Arkansas Constitution guarantees a broader right to privacy. Under our system, State constitutions may give broader rights as to state laws than the federal Constitution grants. The Court held that that "the fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults."

I believe that the Arkansas Supreme Court showed a level of intellectual honesty and bravery that should be commended. Remember that unlike the United States Supreme Court, the members of which are appointed for life, the Arkansas Supreme Court is elected. It is notable for an elected body to risk making a principled decision on a controversial matter. Clearly the Arkansas Legislature was not up to the task. Granted, the Arkansas Legislature probably never seriously intended that the sodomy law be enforced. One of the arguments made in support of the law was that the law had never been enforced, so the Plaintiffs did not have a real case or controversy since there was no realistic danger that they would actually be harmed by the law.

With the Picado decision, only three states still have a same-sex sodomy law (Texas, Oklahoma, and Kansas). Maybe the United States Supreme Court will take care of the other three. But we here in Arkansas are hardly well-adjusted about the issue yet. A fourteen-year-old student in Jacksonville, Arkansas made the mistake of telling school officials that he was gay. For that school officials told him that his homosexuality was sick and unnatural and subjected him to biblical and religious argument to back up their conclusion. The assistant principal read to him from the Bible and prayed for him to be "saved." He then made the mistake of talking about the experience, for which the district suspended him. A lawsuit was filed on behalf of the student as the Pulaski County Special School District did not recognize the precariousness of its position. Once the case was filed, the district seemed to come to its senses.

What is it that makes people respond sexually to other people? I used to think I was a fairly sexy guy, but when you get emails from as far away as Finland about your need to improve the size of your genitals, you begin to lose confidence.

So we hope you enjoy reading this issue of M-Ark as much as we enjoyed researching it.