Last edited: February 02, 2005

Spotlight on Sodomy

Analysis: Will Supreme Court allow states to regulate the bedroom?

MSNBC, April 25, 2003

By Howard Mortman, MSNBC

WASHINGTON—America is just weeks from another round of shock and awe—only this time it will be sexual. And the Supreme Court will let us know when it’s begun.

On March 26, as everyone’s attention was focused thousands of miles away in Iraq, here at home the Supreme Court heard arguments in a homosexual-conduct case called Lawrence and Garner vs. Texas. By June, the Supreme Court either will 1) rule in favor of equal protection and privacy rights and knock down a 100-year-old Texas statute that criminalizes oral or anal sex between persons of the same sex—leading the way to many more similar judicial challenges; or 2) rule in favor of state legislatures’ prerogative to regulate sex acts in the bedroom and promote morality.

This case is what Sen. Rick Santorum, R-Penn., got in trouble talking about. You can see why. It inelegantly wraps morality and sex and constitutionality into one uncomfortable bundle. But Santorum is just a bit player in a larger drama, a revolution, which we might be on the verge of playing out as a society torn between sexual traditionalists and sexual libertarians.

This debate has many provocative elements: Is there a right to privacy? Should our bedrooms be regulated by politicians? Should our bedrooms be regulated by judges? Are our sex lives our own? Should these matters be left to the states? As you can imagine, the debate crosses clean conservative vs. liberal lines.

Case History

As we await our sexual marching orders from the Supreme Court, let’s examine some recent judicial history.

Griswold vs. Connecticut. The court’s assumption of a privacy right was established in this 1965 decision throwing out the conviction of a New Haven doctor arrested for giving birth-control advice to a married couple. State law made it a crime to distribute contraceptives or give advice about them. In the majority opinion, Justice William Douglas wrote that the law violated a broad right of marital privacy. Opponents of the privacy right have long claimed that Douglas added something to the Constitution that was not there.

Bowers vs. Hardwick. This 1986 ruling upheld the constitutionality of Georgia’s sodomy law, which made it a crime for consenting adults of the same sex to engage in certain sexual acts. Viewed another way, the Supreme Court upheld the rights of states to create their own sex laws. The case was a significant victory for court conservatives who doubted a constitutional right to privacy. The privacy right was the basis of the challenge against the Georgia law by Michael Hardwick, who was arrested in his bedroom by the Atlanta police who found him having oral sex with another man. In Justice Byron White’s majority opinion, there is no constitutional right for gay men to engage in sex. And that’s what Santorum cited—creating today’s firestorm.

If the high court now decides to uphold Texas law, nothing changes. States may continue to regulate private sex acts (scope and definitions determined by local politicians). If it overturns Texas law, America’s body of state sex laws may well be on their way to getting challenged and overturned. The current Lawrence vs. Texas case is essentially a rough repeat of the Bowers vs. Hardwick case.

The Sexual Battlefield

Will the court rule the other way this time? There’s an excellent chance. Much has changed since 1986.

The debatable right to privacy (it’s not explicitly in the Constitution) was a crucible for Robert Bork’s failed Supreme Court nomination in 1987. Opponents seized on his description of the privacy right as “specious and unprincipled.” He argued that such a right should be created by constitutional amendment, not by “unelected justices lurking in the shadows.” Bork was rejected, and his replacement, Justice Anthony Kennedy, assured senators that the Constitution included “protection of a value we call privacy.”

Now, with the Supreme Court sporting many new faces since the late ‘80s, court watchers see a bare 5-4 majority for privacy rights. As always, Sandra Day O’Connor may be the deciding vote in this monumental decision.

Remember—this is no cerebral matter about obscure state laws. This is, bluntly, all about sex. And everything could change.

Sex is at the center of some of the nation’s most bitter legal debates. This one is a classic—the individual’s freedom to be left alone against the government’s power to interfere. Played out on the sexual battlefield. The weapons are nothing less than our own sex laws.

  • Howard Mortman, a former editor and senior columnist for National Journal’s Hotline, is a producer for “Hardball with Chris Matthews.” Tune in to “Hardball” at 7 p.m. ET, M-F, exclusively on MSNBC cable.

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