Date: Sat, 1 Jul 1995 18:30:08 -0500 From: mohr richard d **************************************************************** The Police at the Bathhouse by Richard D. Mohr While you're at the beach this summer, the police will continue shutting down gay bathhouses and bookstores across the country with blessings, even proddings, from some within the gay community itself. In the mid-eighties, self-styled savior of the gay community, Randy Shilts became a millionaire through his calls for the state to discipline "irresponsible" gays. Shilts himself would then die of AIDS, apparently unable to live by the advice he would have the government coercively impose upon others. Doctor heal thyself. Michelangelo Signorile and Gabriel Rotello are Shilts' avatars for the mid-nineties -- founders of a euphemistically baptized organization, Gay and Lesbian HIV Prevention Activists, which calls for the state to close gay bathhouses to stop irresponsible gay behavior. In NYC's new gay paper, _LGNY_ (6.15.95), Signorile claims the state is needed in our sex lives because "there are a million reasons why someone is not in the right frame of mind to say no when someone is not using a condom." But Signorile himself not three seasons earlier had written a column for _Out_ (10.94) in which he recounts his own recent unsheathed rectal penetration by a sailor in Hawaii. Doctor heal thyself. Clearly the gay community has its share of Elmer Gantrys. But are gay men being sexually irresponsible in the AIDS crisis? The question is particularly poignant, for now everybody is educated about modes of HIV transmission and yet the rate of new infections among gay men has crept back up to a level where over time as many gay men will become infected as if no one took any preventive measures against infection in the first place. This number is what epidemiologists call a disease's saturation point -- for AIDS around fifty percent. While you were at the beach last summer, the _New England Journal of Medicine_ (8.11.94) reported a study which strongly suggests that gay men are not being unusually irresponsible -- or which at least gives us a benchmark for what counts as "irresponsible" for purposes of public policy. For twenty months the study tracked 256 heterosexually married couples who had one HIV+ spouse at the start of the study. All couples received HIV testing and safe-sex counseling every six months. The results: "Of the 256 couples who continued to have sexual relations for more than three months after enrollment in the study, only 124 (48.4 percent) used condoms consistently for vaginal and anal intercourse." Bluntly put: less than half practiced safe sex. Among the couples who did not use condoms consistently, the infection rate was 4.8% annually -- twice the infection rate among gay men now and well above the rate leading to saturation among the heterosexual spouses. Since it would never cross anyone's mind to have the state coercively intervene in these marriages for their members' own good, there must be something other than genuine paternalistic concern motivating those who would use the coercive power of the state to intervene in the sex lives of gay men. Anti-gay attitudes on the part of the police and self-hatred on the part of purportedly gay-affirming bathhouse activists seem the likeliest candidates. But even if activists' motives were pure, is paternalistic intervention by the state -- intervention for gays' own good -- legitimate in bathhouses and backrooms? No. To see that this is so, one need only believe that consensual sexual behavior falls under the right to privacy. When a person's interest in liberty rises to the level of a right, then the interest is morally insulated from paternalistic interventions. For what having a right means is that its possessor is sovereign -- has final authority -- in making decisions and acting on them across the range of activities covered by the right. This immunity from coercion holds even if the exercise of the right involves the death of its possessor. We see this principle at work when health and the free exercise of religion come in conflict. For example, the state cannot legitimately coerce a person -- for the very sake of preserving his own life -- to have a blood transfusion against his religious belief that a transfusion will damn him for all eternity. So too if a person's sexual behavior is covered by a right, then paternalistic interventions against it are morally impermissible. Gabriel Rotello in _Out_ (7-8.95) states that he is willing to see civil liberties for gays suspended. By comparison, Rotello's position makes Jesse Helms look like Harvey Milk. More subtle bathhouse opponents have recycled Old-Left slogans claiming that bathhouses unchecked put "profits over people." These activists try, at least nominally, to preserve privacy rights while attacking commercialism. But given that the only thing that goes on in bathhouses is sex and that everyone recognizes that is why people go there, to close a bathhouse is directly to target private behavior. To try to justify state coercion of bathhouses because they charge a fee for admission is as good as arguing that the state gets to tell you what you can pray to an icon because you have purchased a votive candle to light before it from the church that houses it. Indeed, bathhouses are more obviously sites of privacy than are hotels, where all sorts of non-private activities go on, like conferences, dining, and shoe-shining. As a reality check, Leftist bathhouse activists should ask themselves when the state is going to close the Ritz-Carlton because men and women are having sex without condoms there. Not in our life time, not ever. More generally, we respect people as people when we respect them as choosers and deciders -- as molders of their own destiny, as agents acting in freedom. By providing sites for consensual encounters resting at the very core of liberty, bathhouses are star cases of institutions that respect persons as persons. Bathhouse activists -- all of us -- would do well to heed Justice Brandies' vindicated dissent of 1928 on the greatest perils to liberty: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasions of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding." __________________________ Richard D. Mohr is the author of _Gays/Justice_, whose eighth chapter takes an extended look at the bathhouse controversies.