A Victory for Gays and Liberty
Tribune, June 29, 2003
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Try to imagine this scene: A man and woman are in their
own bedroom, engaging in consensual sexual acts, when police officers burst
through the door, inform them they are violating state law, and haul them off
It might happen overseas, in some repressive theocracy,
but it would never happen in the United States. It did happen, though, to
Tyron Garner and John Geddes of Pasadena, Texas. Garner and Geddes are both
males, and the sex act they were engaged in when the police arrived is illegal
for same-sex couples in Texas—one of 13 states with laws against sodomy.
They were convicted and fined $200 apiece.
But those convictions have been expunged—along with all
those sodomy laws. In a victory for gay rights, the Supreme Court voted 6-3 to
strike down the Texas statute as a violation of the right to privacy. The
decision was particularly stunning for it came just 17 years after the court
had dismissed the idea that, as Justice Byron White derisively put it, “the
constitution confers a fundamental right upon homosexuals to engage in
The right to privacy has been the subject of much
controversy, especially as it was applied in the 1973 Roe vs. Wade
decision that legalized abortion. But though its original basis was
questionable, it is well-settled law. Though they may differ on why, most
constitutional scholars now accept the idea that the Constitution places
certain choices off-limits to regulation.
Justice Anthony Kennedy, writing for the majority, went
off on some tangents with no obvious connection to constitutional text—as
when he says that, in its treatment of homosexuals, “the state cannot demean
their existence or control their destiny.” But there is little question that
private sexual conduct between consenting adults falls beyond the proper reach
of the government.
Garner and Geddes were the hapless victims of a
freakishly rare application of a ban that would never be enforced against
heterosexuals and is almost never enforced against homosexuals. Those laws are
so rarely enforced because they violate all modern notions of personal
Justice Antonin Scalia, in his dissent, said the court
“has largely signed on to the so-called homosexual agenda . . . directed at
eliminating the moral opprobrium that has traditionally attached to homosexual
conduct.” But the law should be deployed to protect individual rights, not
to punish behavior merely because some Americans find it offensive.
Scalia also warned that this ruling will lead to
“judicial imposition of homosexual marriage.” But that’s highly
speculative. Courts are likely to see a significant difference between denying
homosexuals the state sanction implied by legal marriage and putting them in
jail for what they do in private.
Critics insist there is no constitutional provision
clearly specifying a right to sexual privacy, but it is equally true that
there is nothing to suggest that the government has a right to barge into
bedrooms to police morality. This decision reaffirms that under our
Constitution, the only legitimate government is limited government.
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