Libertarians Join Liberals in Challenging Sodomy Law

NYTimes ^ | March 19, 2003 | LINDA GREENHOUSE

[RJCogburn]

The constitutional challenge to the Texas "homosexual conduct" law that the Supreme Court will take up next week has galvanized not only traditional gay rights and civil rights organizations, but also libertarian groups that see the case as a chance to deliver their own message to the justices.

The message is one of freedom from government control over private choices, economic as well as sexual. "Libertarians argue that the government has no business in the bedroom or in the boardroom," Roger Pilon, vice president for legal affairs at the Cato Institute, said today, describing the motivation for the institute, a leading libertarian research organization here, to file a brief on behalf of two gay men who are challenging the Texas law.

Dana Berliner, a lawyer for the Institute for Justice, another prominent libertarian group here that also filed a brief, said, "Most people may see this as a case purely about homosexuality, but we don't look at it that way at all." The Institute for Justice usually litigates against government regulation of small business and in favor of "school choice" tuition voucher programs for nonpublic schools.

"If the government can regulate private sexual behavior, it's hard to imagine what the government couldn't regulate," Ms. Berliner said. "That's almost so basic that it's easy to miss the forest for the trees."

The Texas case is a challenge to a law that makes it a crime for people of the same sex to engage in "deviate sexual intercourse," defined as oral or anal sex. In accepting the case, the justices agreed to consider whether to overturn a 1986 precedent, Bowers v. Hardwick, which upheld a Georgia sodomy law that at least on its face, if not in application, also applied to heterosexuals.

While the Texas case has received enormous attention from gay news media organizations and other groups that view the 1986 decision as particularly notorious, it has been largely overshadowed in a busy Supreme Court term by the challenge to the University of Michigan's affirmative action program. The justices accepted both cases on the same day last December, and briefing has proceeded along identical schedules. The Texas case will be argued March 26 and the Michigan case six days later, on April 1.

Although libertarian-sounding arguments were presented to the court as part of the overall debate over the right to privacy in the Bowers v. Hardwick case, they were not the solitary focus of any of the presentations then. The Institute for Justice had not yet been established, and the Cato Institute, which dates to 1977, had not begun to file legal briefs. Whether the arguments will attract a conservative libertarian-leaning justice like Clarence Thomas, who was not on the court in 1986, remains to be seen.

More traditional conservative groups have entered the case on the state's side, among them the American Center for Law and Justice, a group affiliated with the Rev. Pat Robertson that is a frequent participant in Supreme Court cases.

The split among conservatives demonstrates "a diversity of opinion among our side," Jay Alan Sekulow, the center's chief counsel, said today. He said the decision to come in on the state's side presented a "tough case, one that we approached with reluctance." He said he decided to enter the case after concluding that acceptance of the gay rights arguments by the court might provide a constitutional foundation for same-sex marriage.

The marriage issue also brought other conservative groups into the case on the state's side. "The Texas statute is a reasonable means of promoting and protecting marriage — the union of a man and a woman," the Family Research Council and Focus on the Family told the court in a joint brief.

While the Texas case underscores the split between social and libertarian conservatives, it is evident at the same time that the alliance between the libertarians and the traditional civil rights organizations is unlikely to extend further. The two are on opposite sides in the University of Michigan case, with both the Cato Institute and the Institute for Justice opposing affirmative action while nearly every traditional civil rights organization has filed a brief on Michigan's side. The Bush administration, which filed a brief opposing the Michigan program, did not take a stand in the Texas case.

In 1986, when the court decided Bowers v. Hardwick, half the states had criminal sodomy laws on their books. Now just 13 do. Texas is one of four, along with Kansas, Oklahoma, and Missouri, with laws that apply only to sexual activity between people of the same sex. The sodomy laws of the other nine states — Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia — do not make that distinction. The Georgia law that the Supreme Court upheld was later invalidated by the Georgia Supreme Court.

The Texas law is being challenged by John G. Lawrence and Tyron Garner, who were found having sex in Mr. Lawrence's Houston apartment by police officers who entered through an unlocked door after receiving a report from a neighbor that there was a man with a gun in the apartment. The neighbor was later convicted of filing a false report. The two men were held in jail overnight, prosecuted and fined $200 each. Represented by the Lambda Legal Defense and Education Fund, they challenged the constitutionality of the law and lost in a middle-level state appeals court. The Texas Supreme Court refused to hear the case.

The United States Supreme Court's decision to take the case has been interpreted on both sides as an indication that the court is likely to rule against the state. Both Texas and the organizations that have filed briefs on its side devote considerable energy in the briefs to trying to convince the justices that granting the case was a mistake, a choice of tactics that is usually an indication of concern that a decision that does reach the merits will be unfavorable.

If the justices do strike down the Texas law, the implications of the decision will depend on which route the court selects from among several that are available. The court could find that by singling out same-sex behavior Texas has violated the constitutional guarantee of equal protection. Because the Bowers v. Hardwick decision did not address equal protection, instead rejecting an argument based on the right to privacy, such a decision would not necessarily require the court to overrule the 1986 precedent.

The Lambda Legal Defense and Education Fund's brief for the two men urges the court to go further and rule that any law making private consensual sexual behavior a crime infringes the liberty protected by the Constitution's due process guarantee. Several arguments in its brief appear tailored to Justice Sandra Day O'Connor, who voted with the majority in Bowers v. Hardwick but is now assumed, on the basis of her later support for abortion rights and her votes in other due process cases, to be at least open to persuasion.

For example, the brief includes a quotation from Jane Dee Hull, then the Republican governor of Arizona, where Justice O'Connor once served in the Legislature, on signing a bill repealing the state's sodomy law in 2001. "At the end of the day, I returned to one of my most basic beliefs about government: It does not belong in our private lives," Governor Hull said.

[Zack Nguyen]

Now we are getting down to brass tacks. Yes, morals do come from the God of the Bible. They come from nowhere else. Without a belief in God, there is nothing higher from which to draw a moral viewpoint.

[Roscoe]

Slavery laws in effect in 1791...

13th Amendment. The liberals and Libertarians haven't passed a legalize sodomy amendment yet.

[freeeee]

So evil is genetic/envirnmental/social?

The origin of the willingness of an individual to commit evil is in genetics/environment/upbringing.

Why then do you call it "evil"

Please define evil, and maybe I can answer that.

since nothing in that description gives ultimate responsiblity to the individual?

Every individual, regardless of genetics or upbringing makes a conscious decision to commit evil. Because of this conscious decision, it is completely his own responsibility and cannot be blamed on anyone or anything else.

[Zack Nguyen]

So are you in favor of anti-Jim Crow laws that the federal government forced on the states in the 1960's?

[Protagoras]

I do as well. That is why I cannot hold to the specious libertarian argument that government is not fit to coerce certain types of behavior from its citizens.

Which behaviors? Like slavery, murdering jews? Or like defending lives and property? Or like what medicines you can take, what car you can drive, who you can hire, what you can pay, who you can touch sexually, how deep your postholes must be for you fence on your own property?

I think your arguments are specious.

I'll ask you the same question as the others, do you think the ten commandments should be enforced at the point of a gun?

[Zack Nguyen]

Please define evil, and maybe I can answer that.

Well, you have been using the term now for a couple of posts. You know the answer. Define it.

Which is it? Is evil genetic/environmental/social or is it the product of individual choice?

[Protagoras]

Jesus gave government the sword.

You are on thin ice with this line. False teaching is a sin.

[freeeee]

Jesus gave government the sword.

Funny, I'm reading Romans 13:1-7, and it isn't Jesus, but Paul whose is cited.

Paul wasn't Jesus. He was just a person like you and me.

[jimt]

They are most certainly violating my rights, because private sin is publicly championed. Homosexuals bring their attitudes to the public square, not to mention my pocket book, and the coarsening of our culture effects the life of myself and my family.

Let's start with the easy one.

They have no right or legitimate claim upon your pocketbook.

Their "championing private sin" means you don't like hearing about it? Fine, don't listen. Argue against it with those willing to listen to you. Refuse to allow your kids to be exposed to advocacy. Refuse to associate with homosexuals. All those are within your purview of legitimate action.

"Coarsening our culture"? It's entirely up to you what effects it has on your life and family. Personally, I'm considering stopping watching "Midsommer Murders" on A&E because nearly every show has weird sexual stuff in it - adultery, homosexuality, incest, etc. These are completely unnecessary for a good mystery, and not stuff I want to hear about.

Please enumerate what specific right of your is being violated.

[Protagoras]

They are most certainly violating my rights, because private sin is publicly championed. Homosexuals bring their attitudes to the public square,

You have a right not to have certain attitudes brought to the public square? Whoa, I think I know enough about your attitudes now,, Bye.

[Zack Nguyen]

Some of the Ten Commandments must be enforced at the point of a gun. It would be impossible to live otherwise. Specifically, prohibitions against murder, thievery, false testimony. Laws encouraging marital fidelity, honoring of the father and mother, and discouraging covetousness are essential as well. The rest of the commandments deal with the relationship between God and man, and as such would be fruitless to attempt to legislate as such obedience comes only from a change of heart wrought by the Holy Spirit.

[Zack Nguyen]

If you can show where I am wrong with God giving government the sword, I will gladly repent.

[Protagoras]

Funny, I'm reading Romans 13:1-7, and it isn't Jesus, but Paul whose is cited.

This guy is way out there. Gotta go, see ya.

[Liberal Classic]

So, parents should shoot impudent teenagers? ;)

[Zack Nguyen]

Funny, I'm reading Romans 13:1-7, and it isn't Jesus, but Paul whose is cited. Paul wasn't Jesus. He was just a person like you and me.

Paul was a person like you and me, but his writings such as Romans were inspired, inerrant words of God. So Paul is speaking the very mind of God here.

[rmvh]

Hanging my hat with the liberals and libertarians on this one

Hang all you want to but SODOMY is not a "privacy" issue....It is a horrendous health and financial problem which impacts all Americans.

From a medical standpoint, the promisucous insertion of a penis into another person's rectum often causes capillary failure and blood transfer as the capillaries in the rectum are close to the surface.... in the vagina they are not.

Those lawyers and their sexually deviant clients are a burden on all Americans.....with even morality placed aside!.

Have a nice day.

[Protagoras]

and as such would be fruitless to attempt to legislate as such obedience comes only from a change of heart wrought by the Holy Spirit.

Fruitless has never stopped you from enacting laws in the past, like sodomy laws.

[Dataman]

ME: What are the rights of others?

YOU: Life, liberty , property, the pursuit of happiness among them if you need a list. Anything that does not violate others rights.

That all sounds very nice but what if my pursuit of happiness interferes with your pursuit of happiness?

Me: How does one determine if the rights of others have been violated?

You: Life, liberty , property, the pursuit of happiness among them if you need a list.

You failed to answer the question. My experience with libertarian apologists is that they appoint themselves judges as to whether a person's rights have been violated. Surely it is unjust to let the violator determine if he has violated rights.

You: Yes. Paying for anyone's expenses against your will is theft. It is not the promiscutity that violates your rights, it's the theft of your money.

If people want to communicate the plague to each other through sexual misconduct, that's ok as long as it doesn't violate someone's rights? Willful transmission of a disease IS a violation of someone's rights!

Me: What is the basis for any human rights at all?

You: They are granted by the creator. Some can be found in the ten commandments if you look. They are granted by the creator. Some can be found in the ten commandments if you look.

Thou shalt not kill: Spreading AIDS is killing.
I'm glad you acknowledged a Creator. The Creator forbids homosexual sex. So.. You acknowledge the Creator, you acknowledge the Decalogue as a source of human rights, but you discount the Creator's prohibition of homosexual sex? On what logical basis?

YOU: And it might be meaningless to you, which of course is no standard of meaning. I'm also curious which one you thoght couldn't be answered.

A statement with ambiguous terms is subject to the fallacy of equivocation. There was no claim that you couldn't answer one of the questions, only that 3 of them needed to be answered.

[jimt]

Yes, morals do come from the God of the Bible. They come from nowhere else.

This is the same God who approved of Lot offering his daughters, "who have not known men", to the men of Sodom "to do with as you wish", right?

Yeah, that's a VERY moral position.

I can cite several hundred others nearly as repugnant as that little moral lesson.

Boing ! You lose.

[sakic]

They can only survive in the context of a heterosexual society. Thus, we can live without them, and they can't live without us. Thus we can regulate their behavior, and because their behavior is uniformly negative and destructive to society (higher health costs, child molestation, etc.) we should.

There were numerous assertions that you made that I disagree with but I've decided to address just the one that I have copied here.

Handicapped people would also fall into the group of those that could not live without "us". Presumably this means that we have the right to regulate their behavior. Is this your stance?