Last edited: February 06, 2005

Law, Liberty and License

Tribune Media Services, March 28, 2003

By Cal Thomas, Tribune Media Services

While the war overseas continues, so does another war at home.

The latest battle in the culture war was fought Wednesday (March 26) on Supreme Court turf. At issue is a Texas “homosexual conduct law” that forbids sodomy.

Before the Supreme Court rules that the Founders had the right to practice sodomy in mind when they wrote the Constitution, we should ask where the chipping away at law and morality is leading us.

Once sodomy is made legal, what’s next? How about polygamy? As we have been reminded in the case of Utah’s Elizabeth Smart and her abduction by a practicing polygamist, there are people who believe they have a right to that sexual and relational preference. If sodomy is legalized, can polygamists then ask the Supreme Court to end the prohibition against their “right” to engage in sex with and “marry” multiple partners? If not, on what legal grounds will they be refused? To listen to the attorneys for the Texas men seeking redress of their sexual grievances, a decision to strike down the Texas anti-sodomy law should be based on “changing times” and public opinion polls.

Pedophiles who wish to have sex with children assert they should not be prohibited from doing so as long as the child “consents.” There is a movement within psychiatry to have pedophilia removed from the shrinking list of “deviant” behaviors, as was done with homosexual practice. What is to prohibit them from doing so if pedophiles testify their fulfillment is being denied, and they feel discriminated against for practicing what, to them, is normal? Since truth is now in the mind and genitalia of the beholder, how can anyone with a different mindset (or different genitalia) tell anyone else how and when to engage in any sexual act in which he or she might wish to indulge?

Former Republican Sen. Alan Simpson of Wyoming wrote a column for the Wall Street Journal on March 26 in which he argued in favor of the “gay rights” position opposing the Texas law. Simpson said “the proper Republican vision of equality” is “live and let live.” Simpson thinks that laws against homosexual practice “are contrary to American values protecting personal liberty ..”

What Simpson argues for is not liberty but license. There is a profound difference between the traditional understanding and definition of liberty and that of license. Liberty is presumed to depend on personal responsibility. I like one of the Webster definitions of liberty: “permission to go freely within specified limits.” In contrast, “license” can mean “disregard for rules of personal conduct: licentiousness.”

Several conservative groups filed amicus briefs supporting the law. The one by the Family Research Council sums up the major arguments in favor: “(1) The law has historically respected and protected the marital union and has distinguished it from acts outside that union, such as fornication, adultery and sodomy. To extend to homosexual sodomy the same protections given to the marital union would undermine the definition of marriage and could lead to homosexual marriage; (2) In order to recognize a non-textual constitutional right to sodomy, the Court must find sodomy to be deeply rooted in the nation’s history and tradition. In fact, laws banning sodomy are deeply rooted in our nation’s history and tradition; (3) Protecting marriage, upholding morality and seeking to ensure public health is more than enough for Texas to prove it has a ‘rational basis’ behind its law ..”

The law is supposed to set parameters for a society. In the past, the law has been viewed as something that flowed from a Law-giver, outside of the reach of humankind to create or manipulate. But since humanity now sees itself as the law-maker (the breaking of that ancient Law is now celebrated in personal behavior and encouraged in film, in magazines and on TV), who is to say whose morality, if any morality, should prevail? Having made “choice” the ultimate determiner for abortion, it would not surprise me if the Supreme Court cites the so-called “right to privacy” in this case and replays its mistake in Roe vs. Wade, which struck down another Texas law.

Adoption laws in some states now give children to same-sex couples. If the Texas sodomy law falls, “marriage” will be redefined and the demise of the human family will be complete.

  • Cal Thomas hosts “After Hours “ on Fox News Channel Saturdays at 11 p.m. ET. Direct all MAIL for Cal Thomas to: Tribune Media Services, 435 N. Michigan Ave, Suite 1500, Chicago, Ill. 60611. Readers may also leave e-mail at

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