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.

[Steve_Seattle]

Just to give one illustration of my point: If a man and woman voluntarily commit adultery, and this adultery leads to the breakup of one or more marriages, there are numerous possible consequences for society. One or more of the abandoned partners may go on welfare; there may be children who need foster care or who later develop behavioral problems stemming from the divorce that require medical or police intervention; there will be public court costs associated with the divorce; publically-paid social workers may have to monitor treatment of the children and look after their welfare; police and the courts may be called in to enforce visitation rights or other terms of the divorce. And so on. The states spend billions on this sort of thing every year. Private behavior has public consequences and leads to public expenditures. You can say "stop spending the money," but you have no idea what that might do to society. In saying this, I am not saying put police in bedrooms, I am saying it is false to say it is "nobody's business" - as a moral principle - what goes on in private.

[Hermann the Cherusker]

Nobody is giving the government "more power". They've always had it since the beginning of the Republic and even before in the Colonial period.

The government has the right to make laws to influence moral actions. The purpose of the law is to promote virtue and punish vice.

[TightSqueeze]

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.

[Oberon]

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?

Well, you're right... but I don't think we want to start winning our arguments from a socialist perspective.

After all, you could use the same kind of argument to outlaw tobacco.

[Stone Mountain]

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

Actually, this is completely different then acts between consensual adults. In both of your examples, consent is not possible. We have determined in this society that a child is not capable of giving consent to a sexual act. In this way, we determined that the minor is being harmed, even when engaging in a voluntary act and thus statutory rape is a crime. Basically, the same argument goes for animals - you can't have sex with those who are not capable of giving consent.

[TightSqueeze]

My point is that government-mandated morality is sometimes at odds with Christian morality.

Religion has no business dictating policy outside of its sphere of influence.

[Hermann the Cherusker]

We have determined in this society that a child is not capable of giving consent to a sexual act.

100% correct. And we've also determined as a society that there are certain things adults are not allowed to do, no matter how much people claim they are consenting and not harming anyone. This would include such a diverse array of actions as frequenting prostitutes, selling illicit chemical substances, euthanasia, AND comitting sodomy.

What's you point?

Basically, the same argument goes for animals - you can't have sex with those who are not capable of giving consent.

This argument leads you right into the arms of the animal rights activists who would outlaw farming and pet ownership and animal testing (animal slavery in their terms).

[Don'tMessWithTexas]

Let's see, you said that the litmus test of legislation is whether it has an impact on a third party.

Under your logic, an unmarried heterosexual couple could be arrested for for fornication because their behavior promotes the spread of STDs. It has the potential for impact on third parties

Under your logic, adultery can be prosecuted, because it undermines marriage generally, exposes the innocent spouses affected to STDs and undermines the welfare of any children to the marriage.

Under your logic, sodomy could be prosecuted because it promotes the spread of HIV. Something that could affect third parties.

[Jack Black]

"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?

Well the ancient Greeks and Romans did not hold this belief. Replace "always" with "recently" or "in Christian civilization" and you would be more correct.

[Hermann the Cherusker]

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

And adults are unable to give legal consent to have sex for money or sodomy.

What is your point?

[jmc813]

Religion has no business dictating policy outside of its sphere of influence.

Agree 100%.

[Hermann the Cherusker]

I understand that. Laws ina Christian society should not be in conflict with Christian morality. But then certain evil people have been about during the past 50 years working mightily to change all of that.

[tahiti]

"the Constitution simply does not address them."

Amendment IX, U.S. Constitution:

"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

If I have to explain it to you why this amendment is the constitutional basis for overturning "sodomy" laws, then you do not think from the starting point of a "presumption of liberty."

[gopwhit]

I'm sorry to be crude, but I don't know any other way to say this. I'm reading through this thread and wonder---are we restricting where the penis can go here? Regardless of the gender mix or not, men and women have been putting the penis in odd places for a long time. What is so special about the butt? Do we outlaw blowjobs next? Should the penis go between breasts? Frankly if the butt can handle it I say put the penis where you want. Two consenting adults should be able to figure this out without our help.

[jmc813]

The government has the right to make laws to influence moral actions. The purpose of the law is to promote virtue and punish vice.

The danger in this line of thinking is that the government includes far-leftists who believe that furthering the gay agenda in schools is "virtue", and owning guns is a "vice".

[Orangedog]

The government has the right to make laws to influence moral actions. The purpose of the law is to promote virtue and punish vice.

Which has failed miserably almost every time it has tried:

War on alcohol-Created organized crime...War on drugs-Drug use has never been higher, and as a bonus, the 4th, 5th, and 10th Amendments became "inconvenient" to the IRS, DEA, FBI and local SWAT teams. War on sodomy-What unintended consequences should we be willing hand down to the next several generations in the name of THIS war?

[TightSqueeze]

What is your point?

Let me make myself perfect clear... Children and animals are incapable of giving legal consent, as they lack the ability to make a rational legal choice. Adults on the other hand, have the ability to rationalize their decisions even if those decisions are in conflict with current law.

[Stone Mountain]

What's you point?

As I said before, the point is that sex with children is in no way comparable to sex between consenting adults.

[Stone Mountain]

And adults are unable to give legal consent to have sex for money or sodomy.

The point is that many of us believe that such laws are ill conceived.

[Hermann the Cherusker]

From what little book of law did you pick this one out of?

Blackstones Commentaries. You should try reading it sometime before you stick your foot into your mouth or your head up your derriere.

(Chapt. 2, Of the Nature of Laws in General): To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws, that annex a punishment to it, do not at all increase it's moral guilt, or superadd any fresh obligation in soro conscientiae to abstain from it's perpetration.

I have every right and am breaking no law when I engage in most immorality, why does sexual immorality count? Better stick with the law and quit making it up as you go!

Can you give some examples of legislatively sanctioned acts of immorality? I can only think of a few, such as remarriage after divorce prior to the previous spouses death that are "legal". Blackstone did not look highly upon such nonesense as making "legal" that which is immoral.