Toobin: Regulating Sex Acts and Marriage
CNN,
June 26, 2003
The U.S. Supreme Court Thursday struck down a Texas law
that criminalizes homosexual sodomy, a ruling considered to be a major victory
for gay rights in the United States.
CNN legal analyst Jeffrey Toobin talked to CNN anchor
Wolf Blitzer about the implications of the decision.
BLITZER: Jeffrey, give us the broad stroke, the
perspective—how big a deal is this decision by the Supreme Court today?
TOOBIN: It really is an enormous decision in the
history of the Supreme Court, because the right to privacy is something that
really has been very much up in the air about whether it even exists. It’s
been a constant source of questioning at confirmation hearings; it started in
the Supreme Court with decisions allowing married couples to buy birth control
in Connecticut—that’s really where the case began in the 1960s. The right
of privacy was then extended, most famously, to abortion in Roe v. Wade.
In 1986, the Supreme Court in ... Bowers
v. Hardwick said no, the right to privacy does not include the right
to have sexual relations in the privacy of your own home. That was a 5-4
decision, bitterly contested at the time. It has now been overruled by this
decision. The right to privacy marches on, even though, ironically,
interestingly, this Supreme Court is in many respects more conservative than
the one in 1986.
Homosexuality, private sexual conduct, has changed in its
perception so much in these 17 years, that it is something that is simply
accepted by this court as something the government can’t regulate. It’s a
big, big decision in the history of the court.
BLITZER: And what about the opponents of this
decision who fear that this is going to create a slippery slope? If you allow
sodomy right now among consenting adults, what about adultery, what about
bestiality, what about these other forms of sex that are out there? Is it
going to open up the door to polygamy, for example?
TOOBIN: Well, I think the opinion and the
supporters of the right to privacy have always sort of walled off the question
of marriage. Marriage has always been regulated by the state. Marriage is
something that the government has plenty of control over, whether it’s
divorce laws, bigamy laws, but, you know, in Justice Scalia’s dissent, he
said this decision calls into question whether the government could regulate,
say, masturbation. Well, you know what, I think he’s right.
I think a decision like this means the government
couldn’t regulate masturbation. I think it does call into question any sort
of law that regulates what goes on between adults, and I think it’s
important to emphasize adults, in private and in a noncoercive relationship,
in a consensual relationship. I think any law that regulates that kind of
conduct is in jeopardy today.
BLITZER: All
right, Jeffrey Toobin, our legal analyst, thanks very much for that.
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