Analysis: Will Supreme Court allow states to regulate
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
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
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.
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
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
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