Last edited: February 14, 2005

Editorial: Will Court Uphold Sexual Privacy?

Orange County Register, December 5, 2002
625 N. Grand Avenue, Santa Ana, CA 92711
Fax: 714-796-3657

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 U.S. Constitution.

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 law.

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 individuals.

[Home] [Editorials] [USA]