Editorial: Will Court Uphold Sexual Privacy?
County Register, December 5, 2002
625 N. Grand Avenue, Santa Ana, CA 92711
The U.S. Supreme Court has agreed to revisit the question of whether state
governments can prohibit sexual activities between consenting adults,
conducted in privacy, or whether such laws violate rights protected by the
In the case of Lawrence v. Texas, the court will revisit an issue it
decided in favor of state regulatory power by a 5-4 margin in 1986. Then, in Bowers
v. Hardwick, the court decided there was no constitutional right to
private homosexual sex and left Georgia’s law prohibiting sodomy in place
(while quietly hoping, like most of us, that the state wouldn’t be too
aggressive in enforcing it).
Back in 1986, 24 states and the District of Columbia still had sodomy laws
on the books. Now only 13 do. Texas and three other states ban only homosexual
sodomy, while the other states ban sodomy engaged in by anybody.
In the Texas case, the court has an equal-protection issue it could use to
strike down the law. If the same act is legal for heterosexuals but illegal
for homosexuals, then homosexuals are being denied equal protection of the
But what about states that ban certain sexual practices for everybody (but
seldom enforce the laws)? Philosophically, in a free society there is no
excuse or justification for such laws.
Assistant DA William Delmore, of Harris County, Texas, argued in a brief
related to the Lawrence case that "government may require adherence to
certain widely accepted moral standards and sanction deviation from those
standards." But that is a pernicious doctrine. Government should confine
itself to protecting citizens’ rights—punishing those who harm or violate
the rights of others—leaving enforcement of moral standards that don’t
involve outright harm to churches, civic organizations and families.
So sodomy laws are objectionable in a free society. But are they forbidden
by the U.S. Constitution? Roger Pilon, director of constitutional studies at
the Cato Institute, thinks so.
The first clause he cites is the 9th Amendment, which says in its entirety:
"The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." That was
included in the Bill of Rights to remind us that just because the framers hadn’t
mentioned an individual right didn’t mean people didn’t have it. In that
reminder can be found a right to privacy, to sexual freedom, or the more
general right of a free citizen to be left alone by government if he or she is
not harming another person.
Mr. Pilon also believes the 14th Amendment, which states in part, "No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States," forbids laws that intrude
into private bedrooms. "That clause was meant to be the principal font of
rights against the states, to protect the freedom and personal integrity of
the individual," he told us. Justice Clarence Thomas has been especially
interested in the "privileges or immunities" clause as a guarantee
of individual liberty, and he could use it in this case to good effect.
It is unlikely the court would have accepted this case unless it planned to
revisit and revise the Bowers decision. We hope it does so in a way that
affirms the Constitution as an ongoing source of protection for the rights of
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