News Flash! Sex Isn't in Constitution
Our View: So why ask Supreme Court to rule on sodomy or many other issues?
Fort Wayne News-Sentinel,
November 30, 1998
600 West Main St., Fort Wayne, IN 46802
By Leo Morris, The News-Sentinel
Because it involves sex -- and gay sex at that -- the controversy over anti-sodomy laws
is spinning us into debates about what is sinful or not, what is moral or immoral. What we
should be talking about a lot more is how powerful we're comfortable with the federal
government being, and how much we'll allow it to tell us what to do.
Georgia's Supreme Court has just struck down that state's ban on sodomy, and the debate
is going down the predictable path. "We cannot think of any other activity that
reasonable persons would rank as more private and more deserving of protection from
government interference,'' the Georgia court said in its 6-1 ruling. But Lou Sheldon,
chairman of the Traditional Values Coalition, said, "It seems that the Georgia
Supreme Court is willing to allow moral indecency to occur all in the name of privacy.''
In 1986 the U.S. Supreme Court ruled in favor of Georgia's anti-sodomy law with
language that should have generated a little of shiver in everyone -- gay or straight.
There is no "federal constitutional right,'' the 5-4 decision said, to private
No, there isn't. There is also no explicit "constitutional right'' to do most of
the controversial things people do, such as drink beer or eat fatty foods or smoke
cigarettes. Neither is there a spelled-out right in the Constitution to do most of the
ordinary commonplace things we do, either. We don't have the federal "right'' to chew
gum or wear blue sports shirts.
The point is: Those rights shouldn't have to be in the Constitution. That document
clearly spells out the few specific and plainly worded powers we, as a free people, are
willing to give to the federal government. All other powers reside with the states and the
people. The way it's supposed to work is: If we don't spell it out, the federal government
can't do it. And just because some right isn't mentioned in the Constitution, that doesn't
mean we don't have it.
Today the opposite is true. Just because it isn't spelled out, that doesn't mean the
federal government can't do it. And if a right isn't specifically mentioned, we don't have
When the federal government tries to dictate to all of us -- instead of letting states
be the laboratories of democracy they were meant to be -- it usually extends and deepens a
controversy that would have been worked out as public opinion evolved one way or the
other. That's what happened with abortion -- state legislatures had been dealing with it
until the ill- conceived Roe vs. Wade decision.
And look what's happening at the state level on sodomy laws -- despite the Supreme
Court's attempts to dictate. Courts in Kentucky, Montana and Tennessee previously have
overturned those state's sodomy laws. Sodomy laws once existed in all 50 states as
recently as 40 years ago. Today, such laws remain in 18 states. Thirteen of those states
ban consensual sodomy for both homosexual and heterosexual couples.
If we don't want the government somewhere -- like in our bedrooms -- it's a lot easier
to get that message to the states.
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