Courting Disaster; Can We Have Sex With Whomever We Want The Way We Want It?
The Supreme Court Says No
By Ramsey Clark.
Playboy,
December 1986
HOW SECURE is freedom in America? On the eve of teh 200th anniversary of
our Constitution, the U.S. Supreme Court has decided, in Bowers vs. Hardwick, that any
American can be prosecuted under a statute providing a maximum penalty of 20 years in
prison for engaging in "any sexual act involving the sex organs of one person and the
mouth or anus of another." Neither married couples nor any other consenting adults
have a "fundamental right" to have oral or anal sex in the darkness of their
bedrooms.
We must ask why the Court believes government has any power to intrude on private
sexual activity, how it thinks government can hope to control sexual relations and what
purpose government can have in telling in people how to have sex. The Bowers decision is
so remote from the real world we know that there is a tendency not to take it seriously.
What is more basic to human nature than the sex drive? What social activity has been more
universally engaged in? What form of conduct are we least likely to be able to suppress?
What do five members of the U.S. Supreme Court think they are doing? The Georgia statute
upheld in Bowers had not been enforced for decades. It is very easy to underestimate the
threat to freedom that this dangerous ruling represents.
Our understanding of freedom changes with the times. Optimists call this progress. Were
it otherwise, we would have few rights. Jim Crow laws could still be enforced by the
police. People could be executed for minor crimes. Discrimination against women and other
groups could be the law of the land. The poor could be convicted of crimes without having
a lawyer to represent them, then denied the right to appeal because they could not pay its
costs.
This evolution of our understanding of freedom makes it all the more difficult to
believe that in 1986, the Supreme Court could tell American adults that they could be
imprisoned for private, consensual sex acts. Social-science studies inform us that tens of
millions of Americans regularly choose to engage in conduct outlawed by Bowers. Art,
literature, film, popular magazines and prevalent behavior patterns all demonstrate how
deeply ingrained in our culture such conduct is. Millions of homosexuals have made public
their sexual preference and have been widely accepted throughout society. Some have been
elected to political office.
American law began the slow evolution of a right to privacy at the turn of this
century. The Supreme Court itself, in a series of cases going back over the past two
decades, established rights of adults to engage would protect the right of adults to
engage in sex as they chose. In 1965, the Court held in Griswold vs. Connecticut that a
constitutional right of privacy permitted married people to use contraceptives. There were
only two dissents to this Warren Court decisions. Four years later, a unanimous Warren
Court, in Stanley vs. Georgia, held that people’s right to view obscene films in
their own homes was protected by the First and 14th amendments.
In 1972, Warren Burger, as Chief Justice, dissented in Eisenstadl vs. Baird. The
majority in that case declared unconstitutional a Massachusetts statute making in a crime
for anyone except physicians or pharmacists to provide contraceptive drugs or articles,
which could be used by only married people. Two Nixon appointees, Justices Lewis Powell
and William Rehnquist, did not participate in the decisions, and a third, Harry Blackmun,
joines by Kennedy appointee Byron White, avoided the constitutional issue by observing
that the trial record did not disclose whether or not the recipient of the contraceptive
supplied by the defendant was married.
The following year, in roe vs. Wade, the Court held that a woman has a right to secure
an abortion during the first three months of a pregnancy; that from the third month until
the fetus is viable, the state may regulate abortions except when necessary health, but
after a fetus is viable, it may prohibit abortions except when necessary to protect the
life or health of the mother. Chief Justice Burger concurred on narrow legal grounds,
adding that he would uphold a statute requiring certification by two physicians that an
abortion was necessary to protect the woman’s life of health. Justice Rehnquist
vigorously dissented, as did Justice White.
These decisions--particularly Roe--were caught up in a wave of public controversy.
Political figures such as Ronald Reagan and a new generation of fundamentalist religious
leaders, such as Jerry Falwell, crusaded for the reversal of Warren Court cases and some
subsequent Supreme Court decisions on pornography, abortion, separation of church and
state, povverty law, civil liberties and civil rights.
The national mood has changed, and these social issues, as they are called, are now
prominent features of public descussion and national election campaigns. President Reagan,
who talks so fervently of getting government off our backs, ardently supports the use of
criminal sanctions to stop abortions and prohibit pornography, while promoting judicial
appointees who are committed to his views. In this context, we can measure whether or to
what degree the Supreme Court "follows the illiction returns."
Chief Justice Burger, while joining the majority that upheld the Georgia sodomy statute
in Bowers vs. Hardwick, wrote by far the most revealing opinion. In his opening sentence,
he was compelled to say that "in constitutional terms there is no such thing as a
fundamental right to commit homosexual sodomy. "He observed, "Condemnation of
those practices is firmly rooted in Judaeo-Christian moral and ethical standards.
Homosexual sodomy was a capital crime under Roman Law." He relished quotes calling
homosexuality "the infamous crime against nature," "an offense of deeper
malignity’ than rape," "an heinous act ‘the very mention of which is a
disgrace to human nature’" and "a crime not fit that "homosexual
sodomy is that to hold that "homosexual sodomy, is somehow protected as a fundamental
right would be to cast aside millennia of moral teaching." Burger did not cite a
single provision of the Contitution or decision of the Supreme Court or any other American
court but merely manifested his deep personal revulsion to homosexual conduct.
The majority opinion was written by Byron White. Chief Justice-designate Rehnquist and
Sandra Day O’Connor (the first woman to sit on the Court that told her
grandmother’s genaration that women had no right to be lawyers) avoided the heat of
controversy by silent joining in White’s opinion. White immediately restricted the
scope of his opinion to homosexual sodomy, declining to express an opinion on other acts
of sodomy. The dissenters accurately observed that the rationale of his opinion applied
equally to married parties and to acts between the sexes in general. White observed that
he was not considering the wisom or the desirability of the sodomy laws and added that the
state legislatures might repeal those criminal statutes whenever they chose. He declared
himself, however, "quite unwilling" to "announce, as the Court of Appeals
did, a fundamental right to engage in homosexual sodomy." sThen, in seven short
paragraphs, he upheld a statute that would send a man or a woman to the penitentiary for
20 years for a private, consensual oral or anal sex act. Resorting to what is called
strict construction of the Constitution, he wrote, "The Court...comes nearest to
illegitimacy when it deals with judge-made constitutional law having little or no
cognizable roots in the language or design of the Constitution." He added that to
claim that "such conduct is deeply rooted in this Nation’s history and
tradition’ or implicit in the concept of ordered liberty’ is, at best,
facetious."
Justice White observe that much "victimless" conduct committed in the home is
illegal, such as possession of drugs, unlicensed firearms or stolen goods. He found no way
to distinguish criminal statutes that prohibit adultery, incest and other sexual crimes,
relying on the ancient origins of the remaining sodomy statutes and the democratic
processes by which 24 states and the District of Columbia enacted them.
None of his arguments addressed the real issues. Chief Justice John Marshall
effectively answered the strict-constitution argument in 1819, when he wrote, "We
must never forget that it is a Constitution we are expounding . . . a Constitution
intended to endure for ages to come and, consequently, to be adapted to the various crises
of human affairs." Justice Benjamin Cardozo told us that "the great generalities
of the Contitution have a content and a significance that vary from age to age.... A
constitution states... principles for an expanding future." Justice Felix Frankfurter
wrote, "The Contitution of the United States is not printed finality but a dynamic
process."
Let’s put this in historical context. Most of the founding fathers owned slaves.
In 1857, the Supreme Court--in Dred Scott vs. Sandford, the most tragic case in our
history, requiring nine individual opinions--held that black persons could not sue in the
court because they were "being of an inferior order and altogether unfit to associate
with the white race, either in social or political relations; and so far inferior, that
they had no rights which the white man [is] bound to respect."
Having thus decided the race question for American, the Court, after the Civil War that
was required to overrule Dred Scott, put women in their place. In Bradwell vs. Illinois,
the Court rules that women had no right to pratice law. Why? Because
the civil law, as well as nature herself, has always recognized a wide difference in
the respective spheres and destinies of man and woman. Man is, or should be, woman’s
protector and defender. The natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of civil life. The divine
ordinance, as well as in the nature of things, indicates the domestic sphere as that which
properly belongs to...womanhood. The harmony...of...the family institution is repugnant to
the idea of a woman adopting a distinct and independent career from that of her
husband.... In the common law... it became a maxim... that a woman had not legal existence
separate from her husband. . . . The paramount destiny and mission of woman are to fulfil
the noble and benign offices of wife and mother. This is the law of the Creator.
We are inclined to dismiss such awful decisions as remote, even quaint aberrations. We
are confident that contemporary knowledge, reason, understanding and values make similar
Court holdings impossible today. Those who persevere in the struggle for freedom, equality
and social justice for minorities--and some majorities, including women--remain painfully
aware of how little has been accomplished and how fragile past achievements are.
Justice Blackmun wrote a powerful dissent in Bowers vs. Hardwick, in which he was
joined by Justices William Brennan, Thurgood Marshall and John Paul Stevens. He questioned
the "haste to reverse" and the "almost obsessive focus on homosexual
activity" of the majority. The dissenters showed that by its plain words, the Georgia
statute did not distinguish between homosexual and heterosexual or married and unmarrid
conduct and cited Holmes’s proposition that it is "revolting to have no better
reason" for a law than that "it was laid down in the time of Henry IV" and
"still more revolting" if the basis for the law has long since vanished but the
rule "persists from blind imitation of the past."
The first purpose of the dissent was to identify the real issue in the case as the
right to privacy. This is "the right to be let alone, the most comprehensive of
rights and the right most valued by civilized men," as Justice Louis Brandeis
characterized it. The dissent then went on to demonstrate that conduct protectrd under the
privacy right is not limited by ideological, demographic, political or religious
preference. It is protected because it is "so central a part of an individual
life." Such conduct, even if some may view it as odd or erratic, cannot be prohibited
where it does not interfere with the rights or interests of others. The dissent then
showed sexual conduct to have been recognized by the Court as a "central part of an
individual life.... Only the most willful blindness could obscure the fact that sexual
intimacy is ‘a sensitive, key relationship of human existence, central to family
life, community welfare, and the development of human personality.’"
Anticipating that the majority rule would reversed, Justice Blackmun concluded
"that depriving individuals of the right to choose for themselves how to conduct
their intimate relationships poses a far greater threat to the values most deeply rooted
in our nation’s history than tolerance of nonconformity could ever do."
Justice Steven added a dissenting opinion to make clear his view that the Georgia
statute, as written, applied to heterosexual conduct (including that of married couples)
as much as to homosexual conduct and was clearly unconstitutional. He then showed that
Georgia had legislated that "all sodomy is immoral and unacceptable" and there
could be no basis for selective application of the statute to homosexuals.
The majority profoundly misunderstood the Constitution. It ignored and misread its own
precedents. It assumed a role for the Supreme Court that through our history has
repeatedly resulted in damage to its image and the rule of law. It exposed a tin ear to
all but the political preferences of a President of its own age. For several of the
Justice, this decision may have been one for the Gipper. The Court ruled as if it had no
awareness of the social realisties of the society it serves, thus defying the nature of
law. It proclaimed a rule impossible to enforce, nacessarily a corruption of law. It gave
police and political leadership a dangerous tool for persecution of selected enemies. It
raised fundamental questions about the capacity of law to proceed by just and rational
principles. In human terms, it exposed the ugly face of prejudice, pathetically failing to
acknowledge our common humanity, afraid of human qualities not alien to any of us. It
believed that by its invocation of mystery, miracle and authority, it could coerce
conformity.
It is critically important to the integrity of constitutional government that this
aberrant decision be overruled. Surely it will be, and soon.
But we should not ignore the larger significance of a government’s desire to
control the sexual activity of its citizens. George Orwell offers a primer on the subject
with 1984.
In that novel, the Party, led by Big Brother, formed the Junior Anti-Sex League, which
advocated complete celibacy. It looked to the day when all births would results from
artificial insemination, called artsem in Newspeak, the state language. It wanted to
remove all pleasure from the sexual act and to destroy eroticism. Its goals was for
"sexual intercourse to be looked on as a slightly disgusting minor operation, like
having an enema."
The state police worked constantly to create conditions that would further the
Party’s aims. Winston Smith was terrified to look at or speak with Julia where they
could be seen or heard. He know it was "shocking folly" to read a note from her
in the public toilet, because there was "no place...more certain that the relescreens
were watching continously."
Smith came to realize that "the animal instinct, the simple undifferentiated
desire ...would tear the Party to pieces." He came to hate purity and goodness as
decreed by the Party and wanted everyone to be "corrupt to the bones." He
realized that "pure love or pure lust" was no longer possible, because both were
"mixed up with fear and hatred."
The Party wanted to crush sex as a foremost enemy of its power not only because it led
to loyalties other than to Big Brother and "creat a world of its own . . . outside
the Party’s control" but because it realized that "sexual privation induced
hysteria, which...could be transformed into war fever and leader worship."
The role of these factors in President Reagan’s determination to have government
control the bodies of women who want abortions, to identify the state with fundamentalist
religion, to have his Attorney General form a commision on pornography is clear. In our
time of pervasive insecurity, government efforts to control sex are a present danger. Our
freedom, even our survival, may depend on the courage and effectiveness of our resistance.
I hope, in these most turbulent times, that Americans will join with Emily Dickinson in
believing that "the Soul selects her own Society, then shuts the Door. To her Divine
Majority, Present no more," and will act on that belief.
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