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.

[Servant of the Nine]

The notion that you can't outlaw something if Christianity says its wrong, and that it is Taliban like "Theocracy" to do so is tiresome stupidity.

No, the idea is that you can't outlaw something just because Christianity opposes it. Or because some people oppose it.

I could probably get a majority of people to vote to outlaw meatloaf, because it is repulsive, but that would not make it the right thing to do.
Anyone wants a meatloaf dinner in the privacy of their own plate has a right to offend against the Gods of Good Taste and their own stomach.

So9

[Servant of the Nine]

First off, homosexual acts are legal in most U.S. states. The remaining few, like Texas, may be trying to keep them on the books but have zero interest in enforcing them.

Actually, the Texas Sodomy Law outlaws anything but heterosexual intercourse in the missionary position with the lights out. At least there is case law to support that interpretation.

The only thing stupider I can think of is that is used to be a felony to carry pliers in your car in Texas.

So9

[Valpal1]

>>>Why not sex with or between minors or with animals in private too? Nobody is being "harmed".<<<

>>>The simple answer is that animals and minors are unable legally to give their consent.<<<

We as humans do not need animal consent to kill and eat them, so why would/should beastiality be restricted on the basis on non-consent of the animal?

This is such a can of worms, that will have far reaching unintended consequences. Bleah! A nation of vegan perverts!

[Don'tMessWithTexas]

You seem to claim that what takes place between two adults in the privacy of their home cannot be reached by state action. I have shown in previous posts that the right of privacy alone is not enough to preclude state action because we can charge people meeting in the privacy of their home with conspiracy. The right of the government to prosecute for conspiracy transcends the right of privacy. Therefore, the right to privacy is not absolute. The only question is whether the action taken by the state is reasonable or designed to protect a compelling or legitimate state interest.

Since the right of privacy is not absolute and can be constrained by a legitimate interest, your argument pretty much falls apart. Why do sexual acts in and of themselves deserve special protection unless someone has a constitutional right to engage in anal intercourse?

[general_re]

Therefore, the right to privacy is not absolute.

Wonderful. Nobody said it was.

Why do sexual acts in and of themselves deserve special protection unless someone has a constitutional right to engage in anal intercourse?

Since it's hardly "special" protection, that's a complete non-starter as well - there is no compelling state interest in prosecuting you and your wife for consensual sexual acts performed in your bedroom, regardless of where you stick it. I suggest that two consenting adult men ought to enjoy the same protections that you enjoy.

But do keep trying - there may be a justification for all this in there somewhere...

[ColdSteelTalon]

Does the state have a right to regulate sexual conduct? Absolutely. The state has done so since the beginning of time. Thats why you apply for a marriage license.

Sad to say it but it is true. You do not have the right to have sex. The Government has the power to regulate it or they will have to overturn sex laws all over the country.

If a law prohibiting certain types of sex is overturned then the SCOTUS would have to overturn them all. And they are not going to do that. Too dangerous.

I personally think that adultery should be severly punished, because you do not have the right to cheat on your spouse.

[Oberon]

You could use that argument to codify parts of Deuteronomy, Numbers and Leviticus.

Point taken... and it's a good one. Still, the moment we start pushing for laws based on "the greater good of society," we've agreed that that's a valid justification for all sorts of laws... and the lefties won't stop at Deuteronomy, Numbers, and Leviticus.

Interesting perspective on OT law, by the way. Jewish law made no provision for incarceration. Punishments provided for in the Law included restitution, fines, and corporal punishment up to and including death, but no jail.

That's a point in its favor, I think.

[Oberon]

Does the state have a right to regulate sexual conduct? Absolutely. The state has done so since the beginning of time. Thats why you apply for a marriage license.

I agree that states have done so... I even agree that it's a good idea. However, I have difficulty finding the particular passage in the Constitution that empowers the Federal Government to do this.

Under the fourteenth amendment, you could possibly ascribe a right to regulate sexual behavior to the various states. Does the applicable state constitution empower the state to do so in this case?

[Servant of the Nine]

Does the state have a right to regulate sexual conduct? Absolutely. The state has done so since the beginning of time. Thats why you apply for a marriage license.

No, a marriage license has to do with property ownership and obligations to pay taxes. That is why there are common law marriages. You don't need the license till you get ready to buy or sell property or jointly pay taxes.

I personally think that adultery should be severly punished, because you do not have the right to cheat on your spouse.

It is. It's called Alimony.

So9

[Don'tMessWithTexas]

You say my comment is a non-starter. 'Fraid not. Besides, saying something does not make it so. Since there is ample evidence that homosexual anal intercourse is disproportionately responsible for the spread of HIV and AIDs, would the state not have an interest that rises to a level sufficient to ban anal intercourse?

The only reason you could say the state has no legitimate authority to do so is that there is a protected constitutional right to engage in that kind of behavior. If that is the case, you would have to agree that a person has a constitutional right to engage in bestiality and necrophilia. If you are willing to let the country to go in that direction in order to maintain some libertarian idea of freedom, you need to have your brain examined.

Since you appear to defend the unfettered right to be a pervert... No I won't go there. Please do not tell me that my daddy almost lost his life in Korea so that now I have to justify the action of government to restrain the acts of perverts.

Excuse me. I think I will end my discussion on this thread. The filth embedded in this libertarian mindset makes me want to puke.

[tahiti]

Amendment XIV changed everything.

[tahiti]

See Amendment XIV.

[tahiti]

Refer to Amendment XIV. That change dramatically how the founding fathers had designed and envisioned federalism in the original Constitution.

[general_re]

Wow. One long post about how I must need my head examined for expecting you to extend to others the same courtesies you enjoy, plus a silly slippery-slope fallacy thrown in just for the heck of it.

Your daddy didn't go to Korea to restrain perverts. He went to Korea to keep you free, which you, in turn, so ungraciously deny to others. I'm betting the reason he went there to keep you free was so you could stand up on your own two feet and think like a rational man, instead of being ruled by your fears like an animal. I'm guessing he's pretty disappointed.

[Michael.SF.]

God specifically told Man to execute those found guilty of homosexual acts

In other words: KILL ALL FAGS!!!

So maybe we should make sodomy a death penalty crime?

Sorry pal, I am not buying into it.

[Old Professer]

Every dime every government can get, every government will spend - it doesn't matter what the reason - if necessary, they will hire people to spend money on finding ways to spend money.

Not a penny would be saved if everybody in the world woke up honest tomorrow morning.

[Don'tMessWithTexas]

I will answer you and then I would suggest that we cut this off real quick. First, I believe it is your ad hominem attack which evidences your failure to come up to the level of a rational being. In doing so, you expose your attempts to redefine the field in a brazen attempt to avoid the issue at hand and defend amoral libertarianism.

Second, I don't think you are in a position to presume what my daddy fought for you sorry piece of slime. So that cute little jab from your limp little wrist is not only miscalculated but plain idiotic. You would have NO way of knowing what he fought for and what he would have defended. Man you are an idiot!

Third, you and the rest of you libertarian losers must believe that George Washington is pretty disappointed given the fact that there are so many unelightened irrational cave men still walk around believing that sodomy is still a social evil. I got an idea, your are so sure that my daddy and George Washington fought to protect a sodomites right to get b*gg*r*d, why don't you put on a pink dress and march with them on Gay Pride Day. On second thought you probably already do.

BE GONE! And in the future NEVER try to presume what a serviceman would fight and lay his life on the line for.

[carlo3b]

Michael, I guess we are at the opposite poles on this and perhaps other issues. I believe to my core that we must NEVER back down to what we believe is going to hurt our offspring, as rabid homosexuals have done with their indiscriminate spread of contagious diseases do to their unnatural perversion. I could care less how hard it is to stand up to the fire from appeasers from all sides.

[general_re]

First, I believe it is your ad hominem attack which evidences your failure to come up to the level of a rational being.

Boy, that's a popular one lately. I think you should look up "ad hominem" - it doesn't mean what you seem to think it means.

In doing so, you expose your attempts to redefine the field in a brazen attempt to avoid the issue at hand and defend amoral libertarianism.

It's got nothing to do with libertarianism - it's all about the right to be left alone. A right which you enjoy, and yet gleefully deny to others.

Second, I don't think you are in a position to presume what my daddy fought for you sorry piece of slime. So that cute little jab from your limp little wrist is not only miscalculated but plain idiotic. You would have NO way of knowing what he fought for and what he would have defended. Man you are an idiot!

Wipe the spittle off your keyboard, son. I know why your daddy fought - he fought to protect the freedom of others, same as everyone else that's ever picked up a gun in defense of this country, so don't think waving the bloody shirt buys you a pass when it comes to stomping all over the rights of others. You're selling out what he fought for, whether you know it or not.

I got an idea, your are so sure that my daddy and George Washington fought to protect a sodomites right to get b*gg*r*d, why don't you put on a pink dress and march with them on Gay Pride Day. On second thought you probably already do.

There ya go. Everything short of calling me a f*ggot. Got news for ya, buddy - it ain't any of your damn business what people do in their bedrooms, so keep your schnozz to yourself and deal with the fact that some people are going to do things that you don't like. You don't have to like it, you just have to mind your own g*dd*mn business. And they'll mind theirs.