Getting Government Out of the Bedroom
Boston Globe,
December 16, 2002
Box 2378, Boston, MA 02107
Fax: 617-929-2098
Email: letter@globe.com
By Cathy Young
It’s amazing to think that in the United States in the 21st century, you
can get arrested for something you do in your bedroom with a willing adult
partner. But 13 states still criminalize some types of sexual acts; in four of
them, "deviate sexual intercourse" is prohibited only between people
of the same sex. (In Massachusetts, a colonial-era law prohibiting "the
abominable and detestable crime against nature" is likely to be repealed
by a bill approved by the legislature’s Criminal Justice Committee this past
March; a month earlier, the Supreme Judicial Court ruled that the law does not
cover private consensual acts.) Now, by agreeing to hear the case of two Texas
men prosecuted for violating that state’s sodomy law, the Supreme Court will
tackle the constitutionality of these laws for the second time in less than 20
years. If conservatives are principled in their opposition to intrusive
government and their support for equal rights rather than special rights for
any group, they should be leading the charge for repeal.
True, sodomy laws are almost never enforced. The two defendants in the
Texas case, John Lawrence and Tyrone Gardner, were arrested under unusual
circumstances: According to news reports, the police entered Lawrence’s
unlocked apartment in response to a false burglary report phoned in by a
friend of the men. It’s unclear whether this was a deliberate setup to
create a test case.
Still, even rarely enforced laws have an effect. Sometimes, in disputes
over issues such as child custody, courts in states with sodomy laws on the
books have treated gays as presumptive lawbreakers. In other cases, frequently
involving heterosexual male defendants accused of sexual assault, prosecutors
have used sodomy laws to obtain a guilty plea or a conviction on a lesser
charge—thus making an end run around the burden of proof required by our
legal system.
The real significance of sodomy laws, as both sides recognize, is symbolic.
For gays and many others who support their cause, these laws are the ultimate
expression of state-sanctioned intolerance and discrimination—not to mention
an assertion of the government’s power to intrude into the most private area
of our lives. For those who still champion these laws, it’s a matter of
publicly affirming traditional morality. "I don’t want anybody put in
jail for adultery or for sodomy," the Rev. Jerry Falwell declared in a
CNN debate with Representative Barney Frank. "But I do want the children
of America ... to know that this country was built on biblical principles;
immorality, whether it’s between heterosexuals or homosexuals, and all
homosexual behavior is forbidden in scripture. It should be looked at as a
taboo."
As Frank correctly pointed out, Falwell is entitled to his views of
morality, but he is not entitled to use the state as his bully pulpit. Most of
America seems to agree. In the early 1960s, sodomy laws existed in every state
of the union; today, they survive in a dwindling handful of states. In fact,
nearly half of the 24 states that still had such laws in 1986, when the
Supreme Court ruled in Bowers v. Hardwick
that state prohibitions on sodomy were constitutional, have dropped them
since.
In its controversial 1986 decision, the Supreme Court majority scoffed at
the notion that the Constitution creates "a fundamental right to engage
in homosexual sodomy." But a lot of people see nothing ridiculous about
the idea that the fundamental liberties of Americans include a zone of privacy
around sexual relations between consenting adults. The Ninth and 10th
Amendments to the Constitution explicitly recognize the existence of basic
rights other than those enumerated in the Bill of Rights.
Many conservatives who oppose gay marriage, the inclusion of gays in the
Boy Scouts, or school programs promoting gay acceptance argue that they are
all for tolerance—just against the public recognition of homosexuality as
equal in moral stature to the union of man and woman. Whatever one thinks of
such a position, sodomy laws would seem to provide these conservatives with
the perfect occasion to demonstrate the sincerity of their pro-tolerance
stance. For the most part, however, conservative commentators have remained
disappointingly silent on Lawrence v.
Texas.
Conservatives have long said that they want to get the government off our
backs. If that’s a principled stance, they should certainly want to get it
out of our beds.
- Cathy Young is a contributing editor at Reason magazine. Her column
appears regularly in the Globe.
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