More than Sodomy?

Salon Magazine ^ | Dana Berliner and Steve Simpson

[Stone Mountain]

More than sodomy

The Supreme Court is hearing a case challenging a Texas law against "homosexual conduct," but the real issue is whether the government can regulate private lives in the first place.

March 26, 2003 | Conservatives and liberals alike have tended to avoid public debate about Lawrence vs. Texas, a case now before the U.S. Supreme Court that challenges a Texas law criminalizing "homosexual conduct" -- that is, sex between consenting adults of the same gender. The law is fundamentally un-American, but instead of opposition spanning the political spectrum, there have been the familiar unprincipled divisions along partisan lines.

Ostensibly, the question in the case will be whether the Constitution protects a "right" to homosexual conduct. But superficial concern obscures a more fundamental question too often ignored in constitutional cases: Does the government have the power to regulate people's private lives in the first place?

This difference is not just a matter of semantics. The Declaration of Independence, which establishes the ethical foundation of American government, states that government exists to secure broad rights to "life, liberty, and the pursuit of happiness" and gains its "just powers" from the "consent of the governed." The government, in other words, must establish its authority to act; individuals do not.

Modern constitutional jurisprudence turns this principle on its head. As the Texas court saw it, the question was whether Mr. Lawrence could establish a "fundamental" right to homosexual sodomy. Since no such right has ever been recognized, the court upheld the law. Had the court sought to make a ruling consistent with America's founding principles, it would have required the state to justify its decision to outlaw the conduct in this case.

Lawrence and his partner are consenting adults who were engaged in private conduct within the confines of Lawrence's home. They were harming no one. While it is true that laws against sodomy have a long history in this country, so does the principle that governmental power is inherently limited. The touchstone of that limitation is harm to some identifiable third party. Since Texas can show no such harm -- indeed, it didn't even try to do so -- it has no power to enter this sphere of individual conduct.

Conservatives often suggest that the states can pass laws that express the moral sentiments of a majority of the community and that the courts have no authority to intervene in those democratic decisions. But all laws are passed by democratic processes and can be said to express the moral sentiments of the community. Texas claims, in essence, that laws do not need any real justification. That is a claim that everyone -- conservatives included -- should find dangerous.

Conservatives, especially, ought to be wary of casting their lot with the states on this issue. If the states can ban purely private conduct between consenting adults, what is to keep them from banning home schooling, for instance, or instituting mandatory preschool, or requiring parents to follow certain nutritional guidelines for their children? Conservatives who condone a process that leads us down this path need to start asking themselves what exactly it is they are trying to conserve.

Unfortunately, the left's approach is no better. Where conservatives extol the virtues of the state's governmental power when it comes to certain moral or lifestyle issues, the left extols the virtues of governmental power when it comes to regulations of property and economic affairs. Both sides love governmental power when it suits their immediate agenda, but both ought to realize that this approach is only as good as one's ability to control a particular legislature. The left ought to recognize that it cannot pick and choose which aspects of individual liberty are beyond governmental power. Privacy is worth very little if one has no property on which to practice it.

America is the only country founded on the principles of individual rights and limited government. Governmental power must be limited if we are to live in a free society. Until everyone, of every political persuasion, takes this principle to heart, cases such as Lawrence vs. Texas will amount to little more than political battles over one more "right," while the war over the proper role of government in our lives rages on.

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About the writer Dana Berliner is a lawyer with the Washington, D.C.-based Institute for Justice.

Steve Simpson is a lawyer with the Washington, D.C.-based Institute for Justice.

[zerosix]

So long as the liberals deny the term "Life" refers to the innocent, soon to be born, states who enact laws to prevent the spread of ADS, can refer to the term "Pursuit of Happiness" does not include disease spreading homosexual sex.

[Hermann the Cherusker]

The law is fundamentally un-American

Says who? This is a bold but completely unsupported assertion.

The government, in other words, must establish its authority to act; individuals do not.

The government's authority to act here is based on commonly accepted principles of morality that the people have enshrined into law through their lawful representatives.

While it is true that laws against sodomy have a long history in this country, so does the principle that governmental power is inherently limited. The touchstone of that limitation is harm to some identifiable third party.

How about that sodomy has always been held to be a grave moral crime that corrupts society as a whole when it is widely practiced and accepted?

[camle]

hows about teen/adult sex? isn't that in the privacy of one's home? How about statutory rape when the "victim" is willing. Or how about NAMBLA?

[Steve_Seattle]

"the law is fundamentally un-American"

Without necessarily wanting to defend the law in question, I think it is historically inaccurate to describe such laws as "un-American". Throughout most of our history, we have had laws regulating private, voluntary conduct. There have been laws against sodomy, fornication, adultery, pornography, "undermining" marriages (I forget the legal term), drug and alcohol use, contraception, abortion, and so on. As the values of the public change, the laws either change or cease to be enforced. I think the author is way off base in saying that these are constitutional issues - the Constitution simply does not address them. These are legislative issues, and that is where they should be dealt with. You will notice that the author's argument makes no reference whatsoever to any specific provision of the Constitution.

[Michael.SF.]

Count me as one conservative who believes that the government should NOT pass laws pertaining to restrictions on the private sexual behavior of two consenting adults.

[Hodar]

Add me to your list. What consenting adults do in private, is no one's business.

[HiTech RedNeck]

There are some things that are just beyond the pale, even in private. For example, should we let my sister in law, who isn't even a registered nurse let alone a doctor, perform brain surgery on me "in private"? We may debate just what the line is, but not the fact there IS a line.

[madprof98]

I think the author is way off base in saying that these are constitutional issues - the Constitution simply does not address them. These are legislative issues, and that is where they should be dealt with.

Exactly right.

[Servant of the Nine]

Conservatives, especially, ought to be wary of casting their lot with the states on this issue. If the states can ban purely private conduct between consenting adults, what is to keep them from banning home schooling, for instance, or instituting mandatory preschool, or requiring parents to follow certain nutritional guidelines for their children? Conservatives who condone a process that leads us down this path need to start asking themselves what exactly it is they are trying to conserve.

It is insane to give this kind of power to politicians

So9

[Steve_Seattle]

"What consenting adults do in private is no one's business."

I think this is defensible as a legal principle, but not necessarily as a moral one. Many things go on in private between consenting adults which DO have an impact on society. In fact, most of the behaviors which I mentioned in my earlier post do have some impact on the public - financial, moral, or both. We spend literally billions of dollars every year in this country to deal with the effects of irresponsible sexual behavior that goes on in private between consenting adults.

[jmc813]

The government's authority to act here is based on commonly accepted principles of morality that the people have enshrined into law through their lawful representatives.

Like the "woman's right to choose" morality?

[TightSqueeze]

The government's authority to act here is based on commonly accepted principles of morality that the people have enshrined into law through their lawful representatives.

Whatever... Just don't bitch & moan when these same self-righteous legal bastards use similar tactics to go after cigarette smoking and gun ownership which has also been labeled immoral.

[Servant of the Nine]

For example, should we let my sister in law, who isn't even a registered nurse let alone a doctor, perform brain surgery on me "in private"? We may debate just what the line is, but not the fact there IS a line.

If you consent, why not?
Why should Big Brother waste money and time protecting you?

So9

[Steve_Seattle]

To finish my thought - the public is often expected to pick up the tab for the consequences of "private" behavior between consenting adults - the billions we spend for drug and alcohol treatment, welfare, social workers, crisis intervention, foster care, medical costs, psychiatric care, and on and on.

[Hodar]

We spend literally billions of dollars every year in this country to deal with the effects of irresponsible sexual behavior that goes on in private between consenting adults

So, what is your solution? Have a gov't appointed 'Chaperone' watch over every adult? I for one, don't think the gov't has any business in my bedroom. What I and my wife do, is frankly, none of anyone's business. However, to address your question, I belive my tag-line applies.

[steve-b]

If Salon had been running articles this sensible from the beginning, they wouldn't be swirling around the drain today.

[Servant of the Nine]

We spend literally billions of dollars every year in this country to deal with the effects of irresponsible sexual behavior that goes on in private between consenting adults.

The obvious answer is to stop spending the money, not to ban the activity.

So9

[Ciexyz]

The abortion laws are an example of government legislating the private lives of citizens. The courts restrain parents from protecting their children from the dangers of the abortion mills. The courts have ruled that even children under age 18 can petition the court to remove them from parental control so they can have abortions.