Last edited: February 22, 2005

Toobin: Regulating Sex Acts and Marriage

CNN, June 26, 2003

The U.S. Supreme Court Thursday struck down a Texas law that criminalizes homosexual sodomy, a ruling considered to be a major victory for gay rights in the United States.

CNN legal analyst Jeffrey Toobin talked to CNN anchor Wolf Blitzer about the implications of the decision.

BLITZER: Jeffrey, give us the broad stroke, the perspectiveóhow big a deal is this decision by the Supreme Court today?

TOOBIN: It really is an enormous decision in the history of the Supreme Court, because the right to privacy is something that really has been very much up in the air about whether it even exists. Itís been a constant source of questioning at confirmation hearings; it started in the Supreme Court with decisions allowing married couples to buy birth control in Connecticutóthatís really where the case began in the 1960s. The right of privacy was then extended, most famously, to abortion in Roe v. Wade.

In 1986, the Supreme Court in ... Bowers v. Hardwick said no, the right to privacy does not include the right to have sexual relations in the privacy of your own home. That was a 5-4 decision, bitterly contested at the time. It has now been overruled by this decision. The right to privacy marches on, even though, ironically, interestingly, this Supreme Court is in many respects more conservative than the one in 1986.

Homosexuality, private sexual conduct, has changed in its perception so much in these 17 years, that it is something that is simply accepted by this court as something the government canít regulate. Itís a big, big decision in the history of the court.

BLITZER: And what about the opponents of this decision who fear that this is going to create a slippery slope? If you allow sodomy right now among consenting adults, what about adultery, what about bestiality, what about these other forms of sex that are out there? Is it going to open up the door to polygamy, for example?

TOOBIN: Well, I think the opinion and the supporters of the right to privacy have always sort of walled off the question of marriage. Marriage has always been regulated by the state. Marriage is something that the government has plenty of control over, whether itís divorce laws, bigamy laws, but, you know, in Justice Scaliaís dissent, he said this decision calls into question whether the government could regulate, say, masturbation. Well, you know what, I think heís right.

I think a decision like this means the government couldnít regulate masturbation. I think it does call into question any sort of law that regulates what goes on between adults, and I think itís important to emphasize adults, in private and in a noncoercive relationship, in a consensual relationship. I think any law that regulates that kind of conduct is in jeopardy today.

BLITZER: All right, Jeffrey Toobin, our legal analyst, thanks very much for that.

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