Discuss the main points from this article.

Gay men and lesbians, sexual nonconformists,²are tolerable and tolerated in American society and under American law only if they keep their identities submerged and participate in their own public obliteration.³The sexual-conduct taboos of dominant culture mark sexual intercourse other than heterosexual vaginal intercourse within a monogamous marriage as a breach of a basic, clear, and immutable Divine commandment.⁴"For gays,*757the taboos mark them as unspeakably gross and disgusting--like shit."⁵As far as the dominant culture is concerned, at least in its popular manifestation:

A major problem exists between heterosexuals and homosexuals. However, a solution is at hand. Science has come to the rescue once again. The discovery that the DNA of homosexuals is different than normal DNA is a major breakthrough. This will allow expectant women to have a DNA test performed on their unborn baby. If the results show the DNA pattern of a homosexual, she can simply abort the abnormal child.⁶

That seems to be the lesson of twenty-five years of liberal toleration. That is what continues to stymie the promise of a positive public existence for sexual nonconformists which appeared so attainable in the aftermath of the June 1969 police raid on the Stonewall Bar in New York City.⁷That is our inheritance from those modern sources of western sexual "liberation theology," at least as they touch directly on the criminal law⁸--the*758Wolfenden Report,⁹and the Model Penal Code.¹⁰

Unfortunately for the beneficiaries of these methodologies of "liberation," the Wolfenden Report and Model Penal Code are themselves instruments of perversion.¹¹They provide an excellent example of the manner in which heterosexual liberal discourse can, by invoking such high concepts as toleration, conceal multiple forms of subjugation of sexual nonconformists. I use these pillars of liberal toleration to examine a subtext of modern toleration--that decriminalization requires those whose conduct is thus liberated to continue to act as if decriminalization never occurred. As long as sexual nonconformists continue to act as if they are engaging in criminal acts--furtively, secretly, always in fear of detection--their conduct will not be subject to criminal penalty. The perversity of this liberation is evident when one considers that, at this point, a reader might be tempted to dismiss the argument that all acts of sexual nonconformity*759must be kept hidden on the theory that public displays of heterosexual vaginal sex between married people are not tolerated either. Even Bill and Hillary Clinton must act furtively should they engage in sexual intercourse in a public park or in their car, or risk the application of the criminal law.¹²But this analogy misses the point. Society approves of public expressions short of actual heterosexual sexual acts, such as solicitations for sex at one's home, hand holding, and kissing, while society condemns and punishes similar behavior among gay men and lesbians. It is to that quite significant extent that the modern trend of decriminalizing sexual acts offers little; society remains free to criminalize presexual acts with respect to which it is indifferent when men and women engage in such acts.

I can best illuminate the extent of the perversity of the mainstream liberal toleration embedded in the Wolfenden Report and the Model Penal Code by relating a parable--The Parable of the Dusty House. The parable invites the reader to adopt the viewpoint of the "protagonist," the creature of the parable. In the context of the parable, this article examines a single example of the deleterious effect of the almost unconscious acceptance of the perversity of liberal toleration as it evidences itself in the criminal law of sexual conduct. I use the examination to argue that current notions about protecting society from offensive conduct are fundamentally incompatible with freeing consensual sexual conduct from criminal regulation. Indeed, my basic theme is that inherent in modern liberal notions of decriminalization of sexual nonconformist conduct is the understanding that society has given little and purchased a great deal. In return for removing the formal threat of severe criminal sanction for hidden and discrete acts (which society had rarely enforced in any case), dominant heterosexual society has sought the quiescence of sexual nonconformists--their tacit agreement to hide themselves from view and spare the beneficent dominant culture the disgust of any type of public presence.

For purposes of illumination,¹³I will focus on the scheme of sexual regulation of "deviate sexual intercourse" the Model Penal Code proposes,¹⁴and particularly, its prohibitions against lewdness and solicitation.¹⁵*760The Parable of the Dusty House is explored from the perspective of the creature in part III entitled: "Be Yourself . . . But Keep the Shades Drawn." In part IV, "What We Preach," I examine the state of regulation in light of the theories giving rise to the deregulation of private conduct.

The state of regulation is recast again in part V entitled: "What We Practice," wherein I briefly examine the flow of the common statutory reality-- the manner in which private conduct has been "deregulated" but "public" conduct has been "reregulated." I discuss the effect of this public/private distinction in part VI, "What We Really Preach." This is perhaps best read as one of the morals of the Parable of the Dusty House. Shifting the interpretive focus of the parable from that of the creature to that of the object of the creature's attention, the dust provides the moral. The dust is neither animate nor worth knowing as other than a nuisance. It does not speak with the voice of the creature.

I consider another moral of the Parable of the Dusty House in part VII, "An Ending But Not a Conclusion." Certain groups, especially political groups, tend to appear to tolerate those whose conduct or beliefs deviate from the dominant group's cultural ideal. Thus, to a substantial extent, toleration is by its nature fundamentally intolerant. Toleration arises from a political inability to continue suppressing conduct, not from any sense that the conduct tolerated is worthy of respect. Toleration in this guise is a grudging activity; an easily-dissipated activity. It amounts to a forbearance*761from suppression wherein dominant society preserves as legitimate its power to express revulsion at the practices of sexual nonconformists--and to manifest these expressions through the law.¹⁶

Toleration continues to speak the language of disapproval when discussing the sexual practices and inclinations it has liberated. At least as tolerance manifests itself in its treatment of sexual nonconformists, American society embarked forty years ago on a toleration of intolerance. Sexual nonconformity, particularly sexual conduct between people of the same sex, falls far beyond the limits of traditional American sexual conduct norms--far enough to permit suppression. That same-sex conduct is no longer actively suppressed is a mark of the indecisiveness of the sexually dominant group in America as that group weighs the acceptability of the types of sexual conduct those sexual nonconformists now practice more openly. However, failure to suppress does not imply tolerance. That is the trap for those who place such importance on eliminating the sodomy laws as a means to acceptance and toleration. Such progress is ephemeral and insubstantial while society is free to use the law to discourage private immorality and to suppress its public expression.

II. THE PARABLE OF THE DUSTY HOUSE

Once upon a time, there was a creature who loved clean things. This creature detested what appeared to it to be small things with which it shared its world--what the creature called dust. As far as the creature knew, the dust flew about, carried by the wind and the creature's movements, and appeared to contaminate everything it touched. The creature convinced itself that the dust could not be good and was probably bad. The creature was sure that the dust was responsible for fatal diseases and bad conduct.

The creature made no attempt to communicate with what it called the dust; after all, it was insignificant and so unlike the creature as to hardly be deemed Life. And so, to separate itself from this dust, the creature decided to build a house. It was a beautiful house, meant to be clean and, therefore, dust free, with windows looking out over a great expanse. But it grew stuffy in the house, and the creature opened the windows one afternoon. To its horror it discovered that by nightfall the house had filled with dust. Dust covered everything. The creature thought and thought, finally*762hitting upon a solution. Abandoning the old dusty house, the creature built a new house. The windows of the house were hermetically sealed. An advanced climate control system with multiple filters circulated air, and the entryways contained various dust catching devices. At last, the creature thought, it could now escape contamination of the house. However, by nightfall of the first day, the creature discovered that the house was again dusty. The amount of dust had been significantly reduced from that in the old house, but if it looked carefully, the creature could see dust everywhere.

The creature was at its wits' end. Technologically speaking, the creature could do nothing further to eliminate the dust entirely. Constant cleaning was no real help either. While cleaning would remove the dust temporarily, other dust would soon replace it. And the creature could never be sure that it had eliminated all of the dust. No matter what the creature tried, some dust would creep into its house. After some reflection, the creature realized that it had lived all its life with the dust. While the creature was convinced that it had contracted a number of colds from the dust, it could expect to continue to exist even in the presence of the dust. However, no matter how hard the creature tried to reconcile itself with the existence of dust, it still felt an almost uncontrollable fear and dread about dust. The creature understood that it would never really accept dust as anything but a potentially threatening nuisance, and it certainly had no intention of sharing its house with the dust.

The creature shrugged its shoulders, plugged in the vacuum cleaner, and eliminated all of the visible dust. It picked up a broom and swept the remaining dust from its sight. Whatever dust that remained could not be seen. The creature was happy. And why not? If it could not get rid of the dust, at least it could substantially reduce its effect. Anyway, the creature could now pretend that the dust had disappeared. The dust seemed to understand. Except for stray bits which continued to settle on the furniture in the rooms of the house, the dust did not complain. But even if it did complain it would not matter; the creature could not hear, would not listen, and had already decided that it understood the dust and its relationship to the dust well enough.

Both liberal and conservative America, like the creature in the Parable of the Dusty House, continue to sweep sexual nonconformists into the cracks and crevices of social existence. It is an endless and ultimately unsuccessful task, but one that requires resort to every manifestation of power, if only to achieve the limited result of a temporary and incomplete disappearance of the problem. In the end, at every end, there is little to show for the effort--what is hidden has not disappeared, and the creature knows that. For all the effort, and all the futility, the dust still revolts the creature sufficiently that the creature continues its efforts despite the conscious*763knowledge of its futility. The creature has given up the attempt to eradicate, concluding that the attempt to eradicate is just not worth the effort. However, the act of sweeping away all evidence of the existence of the dust, is, for the creature, still worth the effort.

And what of the material the creature called dust? The creature attempted to eradicate the dust, yet made no attempt to understand the dust. The dust was a nuisance, not worth looking at or communicating with, nor worth understanding. Indeed, in identifying the material as dust--something inanimate and unconscious--the creature embodied the determination that it could deal with the dust as a thing. The material labelled dust neither disabused the creature of its possibly spurious view of things, nor participated in the creature's determination to sweep the dust into the dark places of the house.

Nausea was the means by which the creature dealt with the dust--a thing insignificant and threatening, but not worth knowing.

[B]ut I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached. Not everything is to be tolerated. No society can do without intolerance, indignation, and disgust; they are the forces behind the moral law, and indeed it can be argued that if they or something like them are not present, the feelings of society cannot be weighty enough to deprive the individual of freedom of choice.¹⁷

It is nausea which drives the conservative version of the creature to rid itself of the dust, for the good of the creature. It is also nausea which drives the liberal version of the creature to hide the dust, for the well being of the dust. The price of toleration according to the liberal merchants of the stuff, our creature, is acceptance of nausea. However, too much nausea will debilitate the creature in its conservative guise. Thus, the recipients of toleration are obliged to devote their lives to minimizing the public disgust which arises by reason of their existence. To ensure the meeting of this obligation, the state is permitted, maybe even required, to help in this endeavor. The only remaining question is the amount of tolerable nausea allowed--with how much dust must the creature live? With this in mind, we can begin to appreciate the Parable of the Dusty House and the problems of a blindly applied and self-delusionally well-intentioned methodology of liberal toleration.

*764III. BE YOURSELF . . . BUT KEEP THE SHADES DRAWN

The Wolfenden Report and the Model Penal Code express the aspirational goals of Anglo-American criminal jurisprudence,¹⁸and in that respect, they have been quite influential.¹⁹They exist as a role model and as the purveyor of our loftiest institutional jurisprudential sentiments on the criminal law; they are the idealized form of sound legislation. For sexual nonconformity, these aspirational ideals encompass two goals. The first is decriminalization, and thus tolerance, of sexual nonconformity hidden from view.²⁰The second is punishment for violation of the first--punishment for and the suppression of the public expression of any nonconformist conduct or any interference with the state's power to express its nausea, disgust, and offense at any sexual expression permitted when hidden.²¹

The approach the Wolfenden Report and the Model Penal Code adopted was intended to help usher in a world of greater tolerance. Instead, the rhetorical shield of toleration has made it easier to perpetuate the state's power to condemn, through criminal law, conduct which does not suit the fancy of its lawmakers. The Wolfenden Report and the Model Penal Code have given society license, stemming from the power to protect community values regarding public expression of sexual nonconformity, to enforce the dominant morality. The Wolfenden Report and the Model Penal Code have reserved for the dominant morality an exclusive place in the legal order--all public space. The documents' liberality consists largely of the miserly permission to sexual nonconformists to use the cracks and crevices of what is left--a narrowly defined "private space"--for the furtive practices which offend the dominant morality. The permission is largely rhetorical; it is the difference between a sentence of death and one of life in*765prison without the possibility of parole.

At bottom, the permission to use the private spaces of the social order permits an unrelenting confirmation of the baseness of the privatized conduct, one which is so shameful it is not permitted to see the (societally speaking) light of day. Such permission is linked with the affirmation of the right to "suppress[ ] . . . public nuisance[s]," and with the open flouting of community standards.²²The very rationales reek with the aroma of nauseating conduct--conduct which is vile enough to be indirectly suppressed. Mere offense becomes the touchstone for regulation;²³offense "will be based on moral, social or cultural standards."²⁴

This dysfunctional notion of tolerating sexual nonconformists has permeated both liberal²⁵and conservative²⁶thought. The notion appears*766to have shaped European notions as well.²⁷The liberal canon emphasizes the first part of the Wolfenden formula--that there is a realm of conduct substantially beyond the reach of the criminal law.²⁸It downplays, but does not disavow, the second part of the Wolfenden formula--that in the furtherance of a societal morality, immoral public conduct can be suppressed.²⁹Traditionalists, to a greater or lesser degree, acknowledge the existence of a zone within which the law has no business, but limits this zone to conduct within the traditional patriarchal family.³⁰Traditionalists, however, emphasize the second part of the Wolfenden formulation--that the majority can use criminal law to protect its citizens from public indecency and offense.³¹The difference between liberal and traditionalist positions, therefore, can be characterized more as one of line drawing than as one of giving content to the Wolfenden formulation. Both have accepted the notion of spheres of privacy and of the right of the state to suppress public displays of deviant conduct.³²

*767Tolerating private conduct does not mean accepting the conduct tolerated.³³Ironically enough, it was a leading traditionalist critic of the time, Patrick Lord Devlin, an outspoken opponent of the Wolfenden Report, who, if somewhat derisively, exposed this dysfunction and warned of its consequences almost forty years ago.

Some people sincerely believe that homosexuality is neither immoral nor unnatural. Is the "freedom of choice and action" that is offered to the individual, freedom to decide for himself what is moral or immoral, society remaining neutral; or is it freedom to be immoral if he wants to be? The language of the (Wolfenden) Report may be open to question, but the conclusions at which the Committee arrive answer this question unambiguously. If society is not prepared to say that homosexuality is morally wrong, there would be no basis for a law protecting youth from "corruption" or punishing a man for living on the "immoral" earnings of a homosexual prostitute, as the Report recommends. This attitude the Committee make even clearer when they come to deal with prostitution. In truth, the Report takes it for granted that there is in existence a public morality which condemns homosexuality and prostitution. What the Report seems to mean by private morality might perhaps be better described as private behavior in matters of morals.³⁴

If, indeed, society means what its says about freedom of choice (for this is what we have come to believe that we say), then should not society remain neutral in matters of sexual practice and not act to severely limit the manner in which tolerated conduct is practiced? But it does not mean what it says. Rather, society continues to impose its moral judgments of sexual conduct through law, but only more discreetly, and all in the name of protecting the sensibilities of society. We protect our youth against corruption*768(because nontraditional sexual practices are bad); we demand that those we tolerate continue to hide. Contrary to advertised reality, society has made preciously small, and cruelly perverse, strides in its toleration of sexual conduct. Unfortunately, Lord Devlin's point, made in the context of a broad traditionalist attack on the Wolfenden Report approach to decriminalization, was lost in the rush to climb aboard the Wolfenden Report bandwagon, a rush in which even those with the greatest interest in pursuing strategies of greater positive tolerance participated.³⁵It is not at all clear to me that, as Richard Mohr has declared, "Whither sodomy laws go, so too do sexual solicitation laws."³⁶

I believe that Lord Devlin's point is well taken, and indeed, ought to be better taken. Lord Devlin's "private behavior in matters of morals" is the better characterization of the liberal ideal.³⁷That ideal accepts as a given the need for the subordination of nonconformity. The necessary subordination is measured on a scale of nausea.

Its presence is a good indication that the bounds of toleration are being reached. Not everything is to be tolerated. No society can do without intolerance, indignation, and disgust; they are the forces*769behind the moral law, and indeed it can be argued that if they or something like them are not present, the feelings of society cannot be weighty enough to deprive the individual of freedom of choice.³⁸

Under this liberal conceptualization, disgust can drive the law, and the law provides the means to service disgust. The measure of disgust is the perceived distance between the norm and that being measured, which, by definition, is not the norm. Distance is measured not only by difference, but by the relation between that being measured and the conduct rules of the norm givers.³⁹Liberal protection of "private behavior in matters of morals" concedes to traditionally dominant social and cultural groups the power to enforce its mores directly and indirectly--to determine and condemn group affronts. The adherents worry only at the margin; this provides another manifestation of the line drawing encouraged by the Wolfenden Report and the Model Penal Code approach. The difference between liberal and traditionalist is that the latter knows where to draw the line between tolerated disgust and everything else. The liberal accepts the necessity of instruction in social disgust and of the participation by government in this endeavor. Liberal ideology seeks merely to contain disgust, like our creature in the parable, by finding a place where the creature will not search and the object of disgust can hide.⁴⁰

It is thus "OK" to characterize certain conduct, particularly sexual*770conduct other than heterosexual vaginal intercourse, as deviant, immoral, or offensive, and to act on the basis of such characterizations to suppress its public expression.⁴¹Under the liberal canon (but less so under the conservative or traditionalist canon), sexual liberation is limited to the practice of immoral acts by people in secret, hidden from view. Thus hidden, the conduct can retain its status as a societal wrong. The perversity of this liberation has been awesome. The toleration of a mere clandestine existence permits the "tolerant" society to feel good about the extent of its tolerance.⁴²But, it simultaneously permits this tolerant society the luxury of continuing to regulate the manifestation of the object of its tolerance in a manner that confirms to all but the dead that the conduct is disgusting, filthy, deviant, sick, and not worthy of emulation.⁴³

The authors of the Wolfenden Report intended this perverse liberation (or at least may have hoped for it), as did the authors of the Model Penal Code.⁴⁴The drafters consciously intended to incorporate such sentiments into mainstream thought in this manner. These sentiments are embodied in approaches to the solution of toleration of the types of sexual conduct*771which violate majority conduct-norm taboos in every aspect of life in the United States--the result of the "solution" to the "problem" of gay men and lesbians in the United States military provides an almost apocryphal example of the permeation of this approach.⁴⁵Such sentiments lie even at the root of the discomfort with the notion of diversity in academia⁴⁶and create what, in other circumstances, would be considered bizarre moral dilemmas, principally "outing."⁴⁷

*772IV. WHAT WE PREACH

Let us take a closer look at the nature of our society's limited acceptance of sexual nonconformity. Late Twentieth Century Anglo-European society preaches toleration and love (or at least toleration). Tolerance is defined by dominant culture as "(t)he capacity for or practice of recognizing and respecting the opinions, practices, or behavior of others."⁴⁸The United States is a nation, we have been told repeatedly, built on toleration.⁴⁹However, toleration is not a word of unitary meaning. Tolerance also has another definition: "The permissible deviation from a specified value of a structural dimension."⁵⁰That is, toleration need not be an infinitely elastic principle and tends to cluster around a norm.⁵¹The norm itself assumes critical importance as the referent for determining whether and to what extent a given form of expression is to be suppressed. The operative norm in Western Europe and North America is heterosexual vaginal intercourse within a state-recognized marriage relationship.⁵²

But in the occasional case where the issue of our custom and mores is specifically presented to the court the community's idealized judgment concerning the kind of morality it desires is likely to weigh more heavily upon the prosecutor or the judge's decision than the data of the Kinsey Report. This may be wrong, but it is society in action.⁵³

*773Our antecedent, the principles set forth in the Wolfenden Report, proceeded on the basis of the second definition. The Wolfenden Report is the primogenitor of criminal regulation of sexual conduct in late Twentieth Century America. The Wolfenden Report's core teachings about the criminalization of sexual conduct, particularly sexual conduct not conducted within the marriage relationship,⁵⁴has found its way into the Model Penal Code.⁵⁵

Incorporating the notions of John Stuart Mill,⁵⁶the Wolfenden Report drew a distinction between private sexual morality and sexual conduct which could be criminal.

There remains one additional counter-argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business.⁵⁷

This language is the stuff of a toleration fantasy, a potentially limitless libertarian emancipation proclamation.⁵⁸But wait, there is more. "To say*774(that some conduct is beyond the criminal law) is not to condone or encourage private immorality."⁵⁹In this manner, the Wolfenden Report was quick to disabuse those who feared that decriminalization of private conduct implied any sort of public expression of toleration of the conduct decriminalized. "It seems to us that the law itself probably makes little difference to the amount of homosexual behavior which actually occurs; whatever the law may be there will always be strong social forces opposed to homosexual behavior."⁶⁰Thus, the lofty ideal of decriminalizing private expression should not bar society from continuing to marginalize that which is offensive, but to merely tolerate that which appears not worth the economic effort to eradicate.

To ensure that the strong social forces opposed to homosexual behavior would neutralize the danger of the proselytizing homosexual,⁶¹the Wolfenden Committee was quick to enlist the power of the state. Through the criminal law, the state retains the power to regulate public expression of this immoral conduct.⁶²"(The) function (of the criminal law), as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others. . . ."⁶³As such, the state retains the traditional power to define and defend public morality. "It is also part of the function of the law to preserve public order and decency. We therefore hold that when homosexual behavior between males takes place in public it should continue to be dealt with by the criminal law."⁶⁴As long as British sexual nonconformists were content to keep their sexual personae to themselves, the Commission was willing to extend to them only relief from direct criminal liability for their hidden sexual conduct. The Commission refused any sort of positive toleration, for that would have implied an acceptance of such conduct which the Commission was unwilling to make!

The Model Penal Code provisions expressed in legal form the*775Wolfenden Report's underlying public-private dichotomy. On the one hand, the Model Penal Code decriminalized certain forms of sexual nonconformity.⁶⁵The decriminalization represented a fundamental departure from existing law at a time when every state criminalized sodomy,⁶⁶especially sodomy engaged in by people of the same sex.⁶⁷The authors of the Model Penal Code took the position that private homosexual conduct ought to be decriminalized because of "uncertainty about the morality of such conduct."⁶⁸

The drafters of the Model Penal Code considered, and rejected as either unfounded or irrelevant, the notion that homosexual sodomy was a sin or a disease.⁶⁹They also noted, but refused to embrace, the notion that homosexuality "is simply a matter of personal preference and is devoid of any normative content whatever."⁷⁰Instead, a number of practical considerations appeared to influence the drafters' conclusion that decriminalization was appropriate.⁷¹The Wolfenden Report supplied the decisive factor favoring decriminalization: "the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality."⁷²

On the other hand, the drafters of the Model Penal Code went to great lengths to confirm the state's authority to control public nonconformist sexual expression.⁷³They were quick to reassure that "the exclusion (of criminal liability for consensual adults' acts of sodomy) does not reach open display, which is covered by Section 251.1 . . . nor public solicitation, which is proscribed by Section 251.3."⁷⁴To resolve any potential*776misunderstanding, the drafters explicitly retained the ancient equating of public nonconformist sexual expression with public nuisance.⁷⁵

The condemnation of tolerated conduct could not have been more open. The creation or expression of a (positive) public identity was suppressed; the possibility of a positive public identity was not even suppressed as a political act.⁷⁶Instead, it was treated like any other revolting nuisance, like one traditionally treated the operation of a nearby animal glue factory spewing noxious odors. Why? Because the problem was not with private behavior in matters of morals, but with the positive exhibition of those behaviors, with even the slightest flouting.

Persons who publicly seek or make themselves available for deviate sexual relations openly flout community standards. Moreover, indiscriminate solicitation in public streets, parks, and transportation facilities is not only an affront to moral and aesthetic sensibilities; it is also a source of annoyance to, and harassment of, members of the public who do not wish to become involved.⁷⁷

*777It was more than that. The drafters also aimed the antisolicitation provisions at "suppressing indiscriminate seeking or availability for deviate sexual relations."⁷⁸The open lewdness provisions may include many acts of affection of a nonconformist nature.⁷⁹

The Model Penal Code drafters were most concerned with the violation of the public space by sexual nonconformists. Both statutes criminalizing sexual nonconformity criminalized only acts occurring in public.⁸⁰The adopting jurisdiction had the discretion to determine what constituted public space.⁸¹It was clear, though, that the term could be quite broadly construed.⁸²The overriding concern with the protection of the public space overrode even concerns about problems of entrapment in private sexual nonconformity.⁸³In this way, punishment remains "a cultural*778art(i)fact, embodying and expressing society's cultural forms."⁸⁴

Indeed, the very language of even this idealized form of law making carefully conveys the full expressive weight of condemnation, even as it speaks the name of the crime. Thus, for example, the Model Penal Code still speaks of deviate sexual intercourse as any intercourse other than heterosexual vaginal intercourse.⁸⁵Even the most well meaning drafters unconsciously used the language of subordination. The law is crafted to insult and to bring the full weight of moral opprobrium to bear on the sexual nonconformist, even as it suppresses. Thus, the law punishes "lewdness" and "public indecency" related to "deviate sexual intercourse." These are both words of insult in the popular idiom and words of description. The drafters consciously used the words to insult, carrying over the meaning from traditional (moral) legislation.⁸⁶Insult serves to further closet and to enforce the private/public boundaries of sexual nonconformity. This, then, is a toleration chained to a nausea born of disgust. Sexual nonconformity may no longer be an abominable crime against nature, but it remains a sign of social (and perhaps even medical) deviance, even in the eyes of the law.⁸⁷And this language of tolerance, perhaps, makes it more pernicious.⁸⁸

Thus, the decriminalization of private sexual conduct amounts to something other than a desire to ameliorate the subordinate social position of sexual nonconformists. Decriminalization does little more than acknowledge the reality that enforcing laws suppressing certain forms of private consensual activity is largely impossible,⁸⁹and may create more*779crime than it prevents.⁹⁰Public manifestations of sexual nonconformity, on the other hand, might be worthy of psychiatric treatment.⁹¹The marginalizing power of the legal language of toleration has not been lost on its targets (others might label them beneficiaries, rather than targets--after all, those released from total condemnation should show a certain amount of gratitude). The 1980s and 1990s have seen an intense effort to transform words of subordination into words of positive power.⁹²

Decriminalization does nothing to soften the notion that the conduct decriminalized is undesirable; the ideology underlying the Model Penal Code and the Wolfenden Report reinforces the notion of undesirability.⁹³Indeed, the selling of the decriminalization provisions appeared to the drafters of the Model Penal Code to be dependant on acknowledging the*780critical separation between hidden conduct (largely ineradicable in any case) on the one hand, and public conduct (which is threatening to the basic social order--that is, of "normality" and "correct civic conduct") on the other.⁹⁴

The mainstream writings of the period were sympathetic to the Wolfenden/Model Penal Code Project and the form of sexual liberation it enunciated. Liberal popularizing commentators of the 1960s were quick to embrace the dual standard of the Wolfenden Report and the Model Penal Code as an equitable way of dealing with sexual nonconformists; "Only when the homosexual act threatened the public good, did the matter become the responsibility of the law enforcement agencies."⁹⁵Indeed, the proponents of this approach felt that they were probably doing gay men and lesbians a favor--dominant society was convinced that sexual nonconformists preferred a life in the shadows. "The homosexual is isolated from the mainstream of our society. To a large extent, the homosexual is still considered a pariah, an outcast. He thus tends to live in isolation, accepting companionship only among fellow homosexuals."⁹⁶

The implication is obvious--as far as "normal" society is concerned, even sexual nonconformists admit to both the unsavoriness of their conduct and the resulting need to exhibit their true natures only in the shadows. The dominant culture has abandoned this kind of talk in the 1990s, substituting the language of flouting for that of disgust. But notions of disgust, and perhaps the continuing belief in the sexual nonconformist's self-disgust, also sustain the belief in the underlying notion that sexual nonconformists serve as accomplices to their own marginalization.⁹⁷The law merely confirms what appears to be the agreement of all parties concerned. This is meant to be the contribution of the criminal law to the closeting of sexual nonconformists. The next part examines the reality of such externally induced closeting.

*781V. WHAT WE PRACTICE

The liberal ideal of limited and grudging toleration of private (hidden) conduct has not been unanimously adopted; almost half of the states continue to proscribe even hidden nonconformist sexual conduct by consenting adults.⁹⁸How is the model of liberal toleration implemented in those jurisdictions adopting the approach of the Model Penal Code? True to the liberal ideal, those jurisdictions continue suppressing public expression of nonconformity through solicitation, public indecency,loiteringand disorderly conduct legislation.⁹⁹The legislatures have not acted alone; state courts have served as willing handmaidens (to use a Biblical term) of the Model Penal Code scheme.¹⁰⁰Thus, as states have increasingly opened a small private area in which sexual nonconformists can exist without the fear of the criminal law, states have continued to use the criminal law to*782shut nonconformists out of any public area. Suppressing solicitation has been a traditional means of regulating sexual nonconformity by states and localities.¹⁰¹Why? Because, other than the performance of the act itself, solicitation (usually in a public place) to participate in even the expression of sexual nonconformity constitutes the most self-aware and public form of expression of the right not to hide.¹⁰²

Classical antisolicitation laws generally follow the pattern suggested by the Model Penal Code. The Model Penal Code did not attempt to break new ground in the penal law.¹⁰³More interesting, from the perspective of analyzing the ways society actually protects its public space from sexual nonconformists, is the solicitation jurisprudence of those truly progressive states where the crime of solicitation has been substantially narrowed. Let us examine these progressive decisions more closely.

In People v. Uplinger,¹⁰⁴the New York Court of Appeals invalidated the state'sloiteringstatute on the same basis on which it had earlier invalidated the sodomy laws (at least as the statute involved private consensual conduct).¹⁰⁵The court of appeals did not, however, abandon the public/private distinction of the Model Penal Code or the Wolfenden Report.¹⁰⁶Rather, the court left open the door for enactment of a constitutionally valid harassment statute based on the nuisance and annoyance principles underlying the Model Penal Code approach.¹⁰⁷One of the significant disputes between the majority and Judge Jasen's dissent in Uplinger revolved around whether the statute could be properly characterized as a harassment statute.¹⁰⁸The opinions imply that any changes*783in the notion of what constitutes actionable harassment could reopen the door to validating statutes closer to the statute overturned in Uplinger. Defining the distinction between a harassment and a nonharassment statute becomes a function of caselaw. There can be little comfort in that. Preserving the Uplinger court's view becomes dependent on the values of the members of that court. A different court could, consistent with the broad themes of Uplinger, adopt the perspective of Judge Jasen.

In Pryor v. Municipal Court,¹⁰⁹the California Supreme Court narrowed, but did not overturn, the solicitation statute at issue.¹¹⁰However, one can argue that the new interpretation substantially eviscerated the provision's effect, so much so that the provision could be treated as, in effect, repealed.¹¹¹Two cautionary notes, however, serve to emphasize that the court's decision is not all that far from its Model Penal Code roots. First, the touchstone for regulation after Pryor remains public offense.¹¹²Second, the legislature, or the court as in Pryor, retains the power to determine what conduct is likely to offend.¹¹³While the second note is comforting to nonconformists in a case like Pryor in which the court was sympathetic to sexual nonconformity, the point that judges tend to change with surprising rapidity and that legislatures may more likely than not reflect strongly held views of dominant society needs re-emphasis. Another court might define conduct likely to cause offense very differently. Though the Pryor court indicated that substantial constitutional problems existed with any attempt to bring conduct which was itself lawful within the solicitation definition (like private consensual acts of sodomy),*784it did not absolutely foreclose the possibility. By not foreclosing the possibility, the Pryor court's ruling suggests approval of the Model Penal Code approach.¹¹⁴Another court, perhaps one with a less developed sense of theoretical constitutional niceties, might find itself up to the task.

That other court might well have been the California Supreme Court in its 1988 manifestation in People v. Superior Court (Caswell).¹¹⁵In Caswell, the court rejected a constitutional challenge to the Californialoiteringstatutes, under which the state charged several people with criminallyloiteringin a public toilet for purposes of engaging in or soliciting lewd, lascivious, or unlawful acts.¹¹⁶While the acts themselves were limited to those defined in Pryor,¹¹⁷the Caswell court rejected the notion put forward by the Pryor court that the "task of defining with constitutional specificity which forms of private lawful conduct, protected by the Brown Act, are lewd or dissolute conduct, the solicitation of which is proscribed by this statute" is probably impossible.¹¹⁸

Instead, relying on the language and commentary of Model Penal Code section 251.3, the majority asserted that they "can readily envision numerous situations where noncriminal conduct may legitimately give rise to probable cause to believe an individual is in violation of" the statute.¹¹⁹"Thus to be vulnerable to prosecution, a person must linger near a restroom and think or fantasize about improper sexual acts or any other crime on the books. No overt act. No advances toward any other person. Just thoughts."¹²⁰Not just thoughts, but public thoughts that evidence*785social undesirability and the need to suppress will render a person vulnerable to prosecution.¹²¹For judges who lack empathy and lack any desire to understand the different life experiences of the objects of their judging, such a decision confirms the tendency of "sex" law to give with one hand and take away with the other in matters affecting sexual outsiders.¹²²

Neither Uplinger, Pryor, nor Caswell were decided in a vacuum. The results in the long line of Supreme Court privacy jurisprudence support the notion that the state can enforce a duty to control the public conduct of sexual nonconformists. For my purposes, that line of cases reduces to the proposition that while the courts have had trouble determining what forms of private conduct the right of privacy does not protect,¹²³the courts have had no problem determining what forms of public conduct violate dominant group conduct taboos. Thus, for instance, federal constitutional privacy rights may not extend to people engaging in open adultery,¹²⁴to the consensual viewing of pornographic films in public places,¹²⁵or to fornication.¹²⁶The Supreme Court has never tired of stressing that the*786state has a legitimate interest in advancing the moral welfare of its citizenry and protecting public decency.¹²⁷

Equally troublesome is that solicitation statutes are not the only means by which the power of the state is employed to keep sexual nonconformists out of sight. For instance, the state has usedloiteringstatutes to round up undesirables--people who offend the public decency (the meaning of which remains unchanged even after the decriminalization of private consensual nonconformist sexual conduct).¹²⁸Through such roundups, the state may make sexual nonconformists yet again invisible by hiding them from public view.¹²⁹Additionally, in a number of jurisdictions, state licensing statutes authorize the closing of the few public meeting places open to sexual nonconformists. Thus, especially before the 1970s, a number of states effectively kept tight control on gay bars by threatening to revoke bar owners' liquor licenses where the existence of the nature of the bar's patrons became notorious.¹³⁰More pernicious, perhaps, is the growing use of newly enacted sexual battery statutes to control nonconformist sexual conduct.¹³¹

Unfortunately, then, the problem of solicitation and the stark rendering of the public/private distinction peculiarly applicable to sexual nonconformity*787(even when the courts have watered down that distinction, as in the cases discussed) continues to pose a significant threat to both the public and private existence of sexual nonconformists. These supplementary modes of control of ostensibly public, and therefore potentially offensive, conduct, constitute a greater threat than the old sodomy statutes. Like a Damoclean Sword, the potential for separation and the possibility of a more sharpened view of difference constantly hangs over the head of those who believe that substantial public progress is being made in opening the public sphere.¹³²As long as offense, and particularly moral offense, remains a legitimate source of governmental power to regulate, no decision of any court will truly liberate sexual nonconformists from the darkness of the private spaces the government and society have assigned them. For this reason, some commentators have turned away from the allure of balancing the relative rights of parties toward the security of boundaries and bright line rules for protecting the habits, inclinations, and identity of nonconformists.¹³³

VI. WHAT WE REALLY PREACH

The touchstone of decriminalization--of toleration on a broader plane--is public offense. Neither the Wolfenden Report nor the Model Penal Code sought to soften or devalue the state's interest in permitting the punishment of morally offensive conduct. The only concession is to limit punishment of moral offenses under the criminal law to public manifestations of such conduct. As long as one concealed one's nonconformity from every member of the dominant group, one's conduct was private and inoffensive; otherwise, one's conduct could be branded public and punished. The liberal canon, therefore, preserves, substantially undisturbed, the core traditional purpose of morals legislation-- the restraint of official (public) conduct both sinful and, on that basis, irredeemably offensive.¹³⁴

*788The difference between the liberal canon, which gives free rein to inclination to suppress immoral (nondominant group) conduct, and the conservative canon is merely one of degree.¹³⁵Traditionalists are equally offended by both public and private conduct.¹³⁶Liberals are not. The distinctions between public and private expression of sexual nonconformity under the Model Penal Code and the Wolfenden Report represent "nothing but differences in the intensity of the aversion with which the different kinds of behavior are regarded."¹³⁷Liberals are able to make a distinction between public and private conduct, and they can justify different treatment of each based upon practicality and expediency considerations.¹³⁸They do not justify the protection for private conduct because that conduct is good. For conservatives the inability to concede that the conduct is "good" makes it difficult to justify different treatment of public conduct based on economic considerations.

Let us examine this aversion more closely. The aversion is twofold. First, the conduct itself produces an aversion. To that aversion, the Wolfenden Report and the Model Penal Code suggest that aversion alone is insufficient to criminalize the nonconformity, absent other aggravating factors.¹³⁹The second aversion is to the appearance, whether public or private, of condoning or approving either the conduct of sexual nonconformity or sexual nonconformity as a state-of-being. The second aversion feeds on a fundamental unwillingness to empathize with the object of toleration.¹⁴⁰To that aversion, and to disinterest in empathy, both the*789Model Penal Code and Wolfenden Report have given free rein. "The conviction that homosexual conduct is bad' quickly translates into the conclusion that it therefore should be punished, and there is a corresponding fear that removing criminal sanctions would amount to implied endorsement of a kind of behavior that majoritarian sentiment finds abhorrent."¹⁴¹

As long as sexual nonconformity is hidden, it need not appear to exist. Public existence poses a problem for a dominant culture whose mores compel suppression of the nonconformity tolerated. If the dominant culture cannot, with the complicity of the object of their toleration, pretend that sexual nonconformity does not exist, then that very nonconformity becomes a threat to the dominant culture. Traditionalists have long recognized this, and, as a consequence, have declared war on all nonconformity.¹⁴²By contrast, liberals compromise, dissatisfied with tradition but unwilling to embrace the alternatives.

Moreover, for marginalized groups to take control of their identity and pursue public recognition of a positive self-identity is a danger for a dominant culture built, in some measure, on the notion that there is value, especially an economic value, in conformity.¹⁴³Control of identity is*790thus a conscious act of the controlling group, critical for setting the acceptable parameters of the toleration of nonconforming conduct. The importance of the power to control image is conscious. Consider what was important to the people considering the decriminalization of sodomy in Texas:

The second concern of Committee members favoring criminalization of these acts dealt with keeping the homosexually- oriented person in his or her place and out of the public sight. These Committee members were concerned that if the private homosexual acts of consenting adults were decriminalized, then the gay subculture would become increasingly more visible--to the aesthetic discomfort of the heterosexual majority--which could no longer deny the existence of the massive and pervasive gay segment of society.¹⁴⁴

Perhaps the Texas legislators of the 1970s were right. Certainly they were right to believe that allowing any kind of positive public identity could seriously erode the dominant group's power to marginalize its nonconformists and to use nausea as a means of covert suppression. By bidding for public approval, nonconformity may become respectable. Respectability reduces the dominant group's ability to express its revulsion through the agency of the criminal law. Respectability is a consequence to be avoided; it is a proxy for political power.¹⁴⁵Thus, for example, the*791power of dominant culture to impose on lesbians the images of "predatory, possessive, promiscuous, jealous, sadistic, masochistic, unhealthy, bitter, man-hating, masculine, aggressive, frustrated, over-sexed" people¹⁴⁶is the power to effect legal results on the basis of this negative image in matters ranging from child custody to employment.¹⁴⁷

Liberal toleration, therefore, permits the dominant culture to maintain control of the image and identity of sexual nonconformists. Dominant culture will use whatever is handy to advantage its image control. Consider AIDS¹⁴⁸in this regard. Dominant culture has managed to use AIDS to craft an image of gay men as something apart--as a group whose sexual conduct condemns them to difference and death.¹⁴⁹In a manner of*792speaking, the accommodationist approach of liberal toleration might well have facilitated the use of AIDS by the dominant culture to transform gay men into our modern equivalent of premodern lepers and syphilitics.¹⁵⁰

The aversion to the conduct "decriminalized" through the model of toleration implicit in the Model Penal Code and Wolfenden Report finds official expression in the law itself. Statutes continue to speak the language of moral opprobrium, emphasizing the official image of sexual nonconformists, whose private conduct has been decriminalized, as disapproved. Liberal toleration borrows heavily from the traditionalist approach it seeks to supplant; there is a strong tie between the traditional means of identifying nonconformists' sexual acts-- detestable and abominable crimes against nature--and crimes, the identity of which is dependant upon an opprobrious characterization.¹⁵¹

There is, therefore, some measure of truth to arguments that "(p)ervasive prejudice, unfounded stereotypes, and invidious public and private discrimination severely victimize gay males and lesbians in the United States. . . . State and federal institutions . . . are prime instigators and facilitators of this invidious discrimination."¹⁵²Such discrimination is the payment society will continue to extract for its official decriminalization of private sexual acts. This "deal" works well for society, but it provides little to its supposed beneficiaries.¹⁵³The deal ensures that all*793of the constitutional due process and equal protection analysis in the world¹⁵⁴will contribute little to the ability of sexual nonconformists to come out of their societally imposed hiding places. The elimination of the sodomy laws and other legal proscriptions on private sexual nonconformity grants society the authority to continue to publicly suppress the idea of sexual nonconformity, permits the use of the law to express public nausea with conduct tolerated, and creates an official state policy the implications of which are that it is proper to treat sexual nonconformists as people whose public existence amounts to little more than a public nuisance.

Indeed, some have argued that this form of liberal toleration has enabled dominant society to marshall basic constitutional protections, such as the First Amendment guarantee of freedom of expression, as a vehicle for the vilification of nondominant groups.¹⁵⁵The better view, I believe, is that freedom of expression provides a means of vilification only because those vilified have abandoned the field. This, perhaps, is the most ironic part of the deal which liberal toleration, that of the Model Penal Code variety, has extracted from sexual nonconformists. Liberal toleration works only through and to the extent of the complicity of those tolerated. "It is a truism in the gay and lesbian communities that such self-identified heterosexuals (who totally deny the importance of their own homosexual desires and behavior), in order to maintain their counterfactual denial of their own homoerotic experience, zealously foment the very stigma they are so concerned to avoid."¹⁵⁶

Much like the dust in the parable (and what is the dust; certainly the*794creature has never figured that out, and it is not clear that the dust has), those who cooperate in their own oblivion can, in some measure, blame themselves for the resulting oblivion. Indeed, the creature tends to rouse itself only when what it considers dust shows itself in space the creature has taken on for itself. It is only that which becomes public in this fashion that exists, that can demand attention, and that can maintain its right to the use of societal space. This grabbing of some part of the public space may be the most significant legacy of Stonewall. The active self-consciousness of sexual nonconformists which grew substantially after 1969 represents the intrusion of sexual nonconformists directly into the dialogue with the dominant society respecting both its space and its image.¹⁵⁷However, twenty-five years has brought only tentative steps and partial recognition. For the moment, the vision of the Model Penal Code and the Wolfenden Report, based on a dialogue by dominant heterosexual society with itself, will continue to be imposed on those for whose good this dialogue has allegedly occurred.

VII. AN ENDING BUT NOT A CONCLUSION

Abandoning direct suppression does not imply tolerance, certainly not positive tolerance. That sexual nonconformity is no longer actively suppressed is a mark of the indecisiveness of the sexually dominant group in America respecting the acceptability of the types of sexual conduct practiced (now more openly) between people of the same sex as well as between people of different sexes. Even the authors of the Wolfenden Report recognized that their conclusions were possible only in a world of cultural conduct-norm indecisiveness, "for on the matters with which we are called upon to deal we have not succeeded in discovering an unequivocal public opinion.' "¹⁵⁸The drafters of the Model Penal Code also based their toleration of private conduct on the inability to find consensus about how society ought to treat the problem of sexual nonconformity.¹⁵⁹Ironically, by affirming the power to use the state to affirm dominant sexual conduct mores, our forms of toleration imply its opposite.

[T]he freedom to despise our fellows may be a liberty which is entitled to protection, but when this freedom is exercised conspiratorially*795by the community, powerful sanctions are unleashed which are just as capable of destroying individual freedom as any sanctions of law or economics. The creativity of the individual is as effectively quashed by the hatred, contempt and rejection of the community as by a jail sentence or the loss of a job.¹⁶⁰

Liberal toleration and sexual liberation of the contemporary liberal variety steals the power of identity from the beneficiaries of its beneficence.¹⁶¹It preserves, in the dominant society, the power to create identity. Dominant culture dictates the existence of groups; having constructed them ("us" and "them"), it then creates the descriptive differences between the "us" and "them" created. Dominant culture explains as fact that sexual nonconformists are sinful,¹⁶²are sick,¹⁶³or are otherwise not the equal of normal folk.¹⁶⁴Dominant culture takes for itself the power to describe the characteristics of these groups, where they live and what they do.¹⁶⁵This is as destructive as the threat of any criminal punishment for mere conduct. The supreme irony, of course, is that the victims of this toleration cheerily (through increasingly less so) participate in this theater of the absurd. "The transformation of silence into language and action is an act*796of self-revelation, and is therefore dangerous; however, the alternative, remaining silent, is more dangerous, and eventually on some level, deadly."¹⁶⁶

In this manner the Wolfenden Report's brand of toleration has brought a large measure of protection against direct coercion by the criminal law, but the Report has done so at an extraordinary price. It cripples the ability of people who do not identify with the sexual moral traditions of the majority of Americans (and whose conduct may violate the conduct taboos of this group) to enjoy something even approaching equivalent status. In the guise of limiting the reach of the criminal law in matters of certain forms of overt sexual conduct regarded as private, the (so-called) liberal state of the last several generations continues to use its power, overtly and covertly, to enforce the notion that the conduct protected (in private) is wrong, awful, disgusting, and not indulged in by normal people.¹⁶⁷

The contradiction, the dysfunction, the power to give with one hand (and feel good about it) and take away with the other (and feel safe) is all too clear.¹⁶⁸The contradiction permits consensual sexual activity between people irrespective of the sex or marital status of the participants, but punishes, in a sometimes severe and humiliating way, any public expression*797of even the most benign form of same-sex conduct. Thus, the liberal canon would permit private consensual sexual activity between people of the same sex,¹⁶⁹but would suppress the open display of any physical attachment between people of the same sex¹⁷⁰as well as the solicitation of any such consensual activity in a public place or the mere public congregation of people who may be amenable to such conduct in any public place, such as a park or a bar.¹⁷¹Having given sexual nonconformists some private space, the dominant culture has defined its opposite, public space, so broadly as to substantially preserve its power to control nonconformist sexual expression.¹⁷²Nonmajority sexual conduct of certain types may occur, we are happily reassured, but only in private, and only if the acts--including their solicitation--can literally and figuratively be hidden from view (so that the rest of us can pretend they do not exist).

Liberal toleration instructs us that society ought not punish the commission of certain acts but ought to remain free to make indulgence in such acts difficult when such acts are believed (by the state, or those in control of the mechanisms thereof) to offend or contradict public (or publicly adopted) sexual conduct norms, norms for which society has reserved the code phrase "moral."¹⁷³The jurisprudence of the European Court of*798Human Rights, the supreme judicial tribunal under the Convention for the Protection of Human Rights and Fundamental Freedoms, is no different.¹⁷⁴The result is that our traditional systems and attitudes can be preserved intact, without the messiness of social guilt and merely at the cost of creating a more subtle form of punishment for violation.¹⁷⁵This form of punishment, mostly in the form of indirect conduct coercion, will ultimately be more debilitating than the older, cruder, and more direct traditional control of sexual conduct.¹⁷⁶Thus, we come face to face with the fundamental intolerance of our system of tolerating sexual nonconformity. It is a tolerance at once medieval and corporate.¹⁷⁷It has the character of the dhimmi of the Islamic world.¹⁷⁸However, one need not search for*799the model in the lands of Islam; western history provides a number of analogous models for our toleration of sexual nonconfor