Last edited: February 06, 2005

High Court Decree Ends Morals Legislation

Birmingham News, July 6, 2003
2200 4th Avenue North, Birmingham, AL 35203
Fax: 205 325-2283

By A. Eric Johnston

On June 26, the U.S. Supreme Court decided Lawrence vs. Texas, one of its most far-reaching decisions. Lawrence decided homosexuals have the right to private consensual sex without fear of criminal prosecution under Texas law.

Is that what the Lawrence case is about? It is not. It has never been just about that. It has been about an agenda to advance homosexual rights and, now, to even diminish the ability of states to regulate moral conduct.

If the case stopped at allowing private consensual sex, it would be like most sex in the United States. It is private and authorities prosecute very little adultery, adult sodomy, incest and other such crimes. However, we need not guess at the real objective, because the court specifically states it: “Our obligation is to define the liberty of all, not to mandate our own moral code.”

There are many aspects of the case for analysis, but the most important is the attack on states to have and enforce codes of behavior. America’s roots in morality have been through state laws. But, like the case of Roe vs. Wade (1973), which legalized abortion, Lawrence creates a new constitutional right. It perverts constitutional law, diminishes state authority and thereby erodes the original intent of the framers of the Constitution, changing the face and substance of America.

In 1986, the U.S. Supreme Court case of Bowers vs. Hardwick found constitutional a Georgia law that criminalized homosexual conduct. However, the court in Lawrence says Bowers was wrong then and it is wrong now. As a basis for reversing Bowers, the court says Bowers’ foundation “has sustained serious erosion” and recent criticism “has been substantial and continuing.” To soften its impact, the court says Lawrence does not involve minors, marriage or other governmental requirements, but only personal relationships, because “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

The liberty right the court finds is based on the 14th Amendment, which prohibits states from depriving persons of their rights without due process of law. The court says that if those who wrote the 14th Amendment had “known the components of liberty and its many possibilities, they might have been more specific. They did not presume to have this insight.” In other words, the Founding Fathers were not aware of the need to accord specific rights to homosexuals; not foreseeing states would later take their rights away.

Grave injustice

The Lawrence ruling does America a grave injustice by not only succumbing to “criticism” and slandering the Founding Fathers, but by disingenuously decimating the historical analysis in Bowers. Bowers demonstrated through in-depth historical analysis America’s deep roots for laws criminalizing homosexual conduct. Like in Roe, the Lawrence court case relies on a selective view of history, using only that evidence which supports its position. The history relied on by the court is that provided by the “scholarly” gay rights and ACLU briefs.

The correct facts are that sodomy was a criminal offense at common law forbidden by the original 13 founding states, and that 32 of 37 states had such criminal laws when the 14th Amendment was ratified in 1868. In 1961, all 50 states outlawed sodomy. To quote Bowers, the suggestion that homosexual sodomy is rooted in the tradition of the nation “is, at best, facetious.”

Specifically, for Alabama, it adopted the common law both when it was a part of the Mississippi Territory and in 1819 when it first codified its laws as a state. In 1841, the first Alabama criminal law on sodomy stated “every person who shall commit the abominable and detestable crime against nature, either with mankind or with any beast, shall be punished by imprisonment.” Again in the codes of 1843, 1852, 1866, 1867, 1876, 1887, 1897, 1907, 1923, 1928, 1940 and 1975, the crime of sodomy was renewed. It remains the law today, but after Lawrence, its enforceability as a code of moral conduct is repealed by implication.

The Lawrence ruling suggested that because Texas prohibited only same-sex sodomy, it was permissible for heterosexuals to engage in deviant sexual intercourse. Alabama law prohibits both. However, because the court determined such perversion to be a liberty interest, all persons can do it. Otherwise, Alabama’s law might be constitutional. Then, no one could engage in sodomy, and homosexuals would not have a vehicle for establishing a plethora of rights.

U.S. Sen. Rick Santorum, R-Pa., was recently vilified for suggesting that if the Texas law was unconstitutional, states could not regulate other behavior such as fornication, bigamy, adult incest, bestiality and obscenity. Justice Antonin Scalia exonerates the senator by saying in his dissent: “(T)his (opinion) effectively decrees the end of all morals legislation.”

Social change comes through democratic action. States legislate morality, and if a majority is persuaded change is needed, change is made. It is only when those who are impatient for change cannot wait, or who cannot effectuate change, go to the court, as Scalia says, for a “brand-new constitutional right.” That is what homosexuals have done in Lawrence. After all, if all 50 states had laws against sodomy in 1961 and only 13 have such laws today, it is apparent democracy has been at work. However, even in states which have changed their laws, there are still restrictions on the broad rights homosexuals seek. Overturning all restrictions was the objective of this case and the progeny which will follow.

In the recent Canadian decision Halpern vs. Toronto (2003), Canada’s highest court required the government to formally recognize a marriage relationship of homosexual persons. The Lawrence majority opines that is not what the justices were doing, but their reasoning betrays them. At one place, they say prior decisions give “constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.” Then further along they add, “(P)ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

About to change

The Supreme Court’s search for new rights has this time created a new liberty interest that limits states’ abilities to legislate morality and usurps democratic governance. This case has more far-reaching implications than any since the abortion decision of Roe vs. Wade. Not only are criminal laws such as sodomy, bigamy, polygamy, incest and adultery at risk, but also laws on marriage, child custody, adoption, military service, hiring practices, insurance provisions, nonprofit associations (such as Boy Scouts), and other incidences of daily living are all subject to change.

Constitutional and civil rights have always been about basic individual freedoms, subject however to basic moral norms. All of that is about to change.

  • A. Eric Johnston is a Birmingham attorney and president of the Southeast Law Institute, which provides legal counsel on constitutional and public policy issues. His e-mail address is

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