Oral & Anal Sex: Not Anyone's Business.
A. Guiding Citizens to Good Morals is a Cen-tral Purpose of the Law…. the Western legal tradition has long recognized that one of the primary purposes of the law is to steer the people to good morals.
Over 2300 years ago, Aristotle opined that "virtue must be the care of a state which is truly so called. . . ." ARISTOTLE, POLITICS Bk. 3, Pt. IX (Benjamin Jowett, trans. in 2 THE COMPLETE WORKS OF ARISTOTLE, Princeton, 1984) This concept of the purpose of government is central to the Western tradition: "It is, above all, the belief that law and politics are rightly concerned with the moral well-being of members of political communities that distinguishes the central [Western] tradition from its principal rivals." GEORGE, supra 20.
C. Any interest in personal autonomy does not extend so far as to invalidate a long-standing criminal prohibition. 1. Glucksberg recognized the limits of personal autonomy.
In Glucksberg, as here, the Court was confronted with private, consensual conduct between adults. Relying on this Court's decisions in Planned Parenthood v. Casey 19 , and Cruzan v. Director, Missouri Dept. of Health 20 , as do Petitioners here, the physicians in Glucksberg asserted a fundamental liberty interest in "personal autonomy" and "self-sovereignty." 21 The Court refused to transform the limited protections afforded such interests into an absolute and unlimited right: "That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." 521 U. S. at 727 (emphasis added).
The Court further held that the Washington statute easily met the low bar of the rational basis test. It noted, too, that "[ t] o hold for respondents, we would have to reverse centuries of legal doctrine and practice." Id. at 723. 22
2. Personal autonomy should not intrude on the broad discretion accorded the states to enact morals legislation. As a matter of sound policy, imposition of a limit on the reach of morals laws on the basis urged by Petitioners must be rejected. That there are limits to a state's police power is certain. But the discretion afforded the states in the exercise of that power to protect the health, safety and morals of its citizens is, and of necessity must be, exceed-ingly broad. While "the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion 'is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. ' " Holden v. Hardy, 169 U. S. 366, 392, 18 S. Ct. 383, 42 L. Ed. 780 (1897) (quoting Lawton v. Steele, 152 U. S. 133, 136, 14 S. Ct. 499, 38 L. Ed. 385 (1894)); see also Barbier v. Connolly, 113 U. S. 27, 31, 5 S. Ct. 357, 28 L. Ed. 923 (1885) (" neither the [14th] amend-ment – broad and comprehensive as it is – nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, educa-tion, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity").
IV. STRIKING THE STATUTE WOULD DESTROY THE ONGOING POLITICAL DEBATE ON HOMOSEXUAL RIGHTS AND UNDERMINE THIS COURT'S OWN MORAL AUTHORITY.
To quote from Kipling's "The Portent"
Whence public strife and naked crime And -- deadlier than the cup you shun-- A people schooled to mock, in time, All law--not one. Cease, then, to fashion State-made sin, Nor give thy children cause to doubt That Virtue springs from Iron within-- Not lead without.
Keep and enforce laws with regard to what consenting adults do in private and you will make a society that has no respect for the law as a whole.