Last edited: February 14, 2005

Editorial: Peeping Into Bedrooms

Salt Lake Tribune, December 7, 2002
P.O. Box 867, Salt Lake City, UT 84110
Fax: 801-257-8950

Since 1986 the U.S. Supreme Court has allowed states to peer into the bedrooms of gays and lesbians. This irrational state of affairs may soon be corrected now that the court has decided to take a second look at state sodomy laws.

The Supreme Court ruled 5-4 in 1986 that a Georgia statute criminalizing consensual sodomy was constitutional. Though the statute outlawed sodomy outright, the court concentrated only on homosexual acts. The end result has been illogical—heterosexual couples are free to do as they please in their bedrooms; consenting gays are subject to arrest.

And they are arrested. The current case before the court involves two men in Texas caught in flagrante after police arrived to check on a neighbor’s false claim that a man was waving a gun in the house. The men were convicted and fined for engaging in a consensual act of sodomy in a private home.

Now the justices will again decide if a state may criminalize such private acts.

The argument for sodomy laws hasn’t changed since 1986. It is that sodomy has been a crime since colonial times so it can’t possibly be a fundamental right. But the same was also said of mixed-race marriages. The Supreme Court finally saw past that error of history and abolished interracial marriage bans in 1967.

The appeal to history is weak. By 1986, only 24 of 50 states maintained sodomy laws. Today, 13 states (not including Georgia, but including Utah) maintain such laws but few prosecute violations. Heterosexual, even adulterous, couples may violate the law with little fear. The prosecutions that do occur are typically aimed at gay couples.

As applied, then, it is not the act that is punished, but the choice of partner. And government should have no right to perch at the end of a bed and give a thumbs up or down to any aspect of an intimate relationship between consenting adults.

Sandra Day O’Connor sided with the majority in 1986. Three other current justices would do the same today. The remaining five justices, however, would be enough to kick the government camel out of the tents of gays and lesbians.

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