Last edited: February 14, 2005

Thwarting the Sex Police

Chicago Tribune, December 15, 1998
435 N. Michigan Avenue, Chicago, IL 60611
Fax: 312-222-2598

On Sept. 17, sheriff’s deputies in Houston got a call reporting an intruder in an apartment. When they arrived at the home and entered the front door, they found no burglar – only a couple engaged in sex. Normally, the deputies would have apologized for the mistake and beaten a hasty retreat. But the couple they interrupted were gay men, and Texas law prohibits sexual relations between people of the same sex.

So the men were arrested, charged with committing sodomy and jailed overnight. They pleaded no contest and paid a fine of $125 each.

The real punishment, however, is not the monetary sanction. It’s the shocking indignity of being treated like a criminal for engaging in consensual adult sex. As a lawyer representing the two men said, "The government should not be in the business of policing the private, consensual sexual relations of people." But in 19 states, the law tells grownups what sort of carnal enjoyment is allowed behind closed doors and what is not.

Such outrages may still occur in Texas and other places. Fortunately, though, they are a thing of the past in Georgia. There, a man accused of sexually assaulting his 17-year-old niece testified that she had consented to sex. The jury then convicted him of sodomy, which in Georgia includes oral sex between heterosexuals, and he served 14 months in prison.

But last month, the Georgia Supreme Court struck down the law as a violation of privacy rights under the state constitution. "While many believe that acts of sodomy, even those involving consenting adults, are morally reprehensible," said the court, "this repugnance alone does not create a compelling justification for state regulation of the activity."

Twelve years ago, the United States Supreme Court upheld the very same Georgia law against a constitutional challenge. But the trend in the states is the other way. In 1960, all 50 states had laws against sodomy.

The only thing to be said for sodomy laws is they are not rigorously enforced. Since they outlaw activity engaged in by the majority of both heterosexual and homosexual Americans, they couldn’t be. But they occasionally are enforced, as in these two cases, with palpably unjust results. And they are often used as an excuse for firing an employee or rejecting a parent’s request for custody of his or her children.

Americans disagree about the proper role for government in various spheres. But most will readily and rightly agree it does not belong in our bedrooms.

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