Last edited: December 19, 2004

Time to Evict Police from Our Bedrooms

Laws Against Sodomy Have Become Outmoded

Chicago Tribune, December 5, 2002
435 N. Michigan Avenue, Chicago, IL 60611
Fax: 312-222-2598

By Steve Chapman

One night four years ago, sheriffís officers acting on a complaint of an armed man creating a disturbance in a Pasadena, Texas, apartment, entered the dwelling and barged into a bedroom. But all they found was a couple enjoying a pastime commonly enjoyed by couples in their bedrooms, and I donít mean organizing the closet.

You might guess that at this point, the cops would have blushed, apologized and left as fast as their feet would carry them. Wrong. They arrested the couple under the Texas anti-sodomy statute.

You see, John Lawrence and Tyron Garner are both males, and the state prohibits acts of sodomy between people of the same sex. Lawrence and Garner were arrested, convicted and fined $200 apiece.

There are some laws that exist only because no one would ever dream of enforcing them. Anti-sodomy statutes, which forbid carnal deeds that have been committed by the overwhelming majority of American adults, are a prime example. Until 1961, every state prohibited sodomy. But most people have lost interest in regulating what others do between the sheets. Today, sodomy laws exist in only 13 states.

Most of those put these forms of gratification off-limits to all their citizens. Texas has a different approach. Its criminal code, while permitting "deviate sexual intercourse" by heterosexual partners, outlaws it for homosexuals. If John and Tyra had been caught doing what John and Tyron were caught doing, the police would have been powerless to stop them.

Even in Texas, though, no one enforces the law, no one expects it to be enforced, and hardly anyone wants it to be enforced. There are some 43,000 gay and lesbian couples in the Lone Star State, according to the last census, as well as thousands of other homosexual individuals who may pair off on any given night. A gay population with even a minimally active libido would present a law enforcement challenge beyond measure.

But occasionally police stumble onto illegal conduct, and then the law turns out to be more than a dead letter. For Garner and Lawrence, there was the indignity of being jailed, hauled into court and fined for consensual acts carried out in private. On top of that, their lawyers note, they are now disqualified or restricted "from practicing dozens of professions in Texas, from physician to athletic trainer to bus driver." If they move to some states, theyíll have to register as sex offenders.

The two men have appealed to the U.S. Supreme Court, insisting that the law violates their right to privacy and discriminates against them on unconscionable grounds, and the court has agreed to hear the case. They say states have no business telling adults what intimacies they may choose to enjoy, and certainly canít deny specific pleasures to gays while allowing them to straights.

Either theory would require the court to stake out new constitutional ground. Just 16 years ago, it upheld a Georgia manís sodomy conviction, ridiculing the idea that he had "a fundamental right to engage in homosexual sodomy." It has yet to treat discrimination against gays as the equivalent of discrimination against blacks or women.

But there are good grounds for putting this type of regulation off-limits. The court has long accepted that the Constitution establishes an unassailable zone of individual privacy. In 1965, it said the government canít forbid contraceptives to married people, and later it said the same for people who havenít tied the knot.

Supporters of the law object that the Constitution says nothing about sexual privacy. But the 9th Amendment says the reference to specific liberties in the Bill of Rights "shall not be construed to deny or disparage others retained by the people." Recognizing those other rights is the task of the Supreme Court. Given modern notions of sexual autonomy, it makes perfect sense for the court to find that the government has no business telling consenting adults what they can put where.

The Texas prosecutors argue that we can outlaw gay sodomy because weíve always outlawed gay sodomy. "Fundamental rights must be grounded in the nationís history and legal traditions," they say, and in this case, history and tradition support the ban. But discrimination against women has its own basis in history and tradition, and even conservatives today show no interest in making the case that the government can treat half the human race as an inferior species.

Laws against sodomy are just as outmoded. No state actually enforces these laws the way other laws are enforced. Why? Because very few Americans see policing the bedroom as a legitimate function of government.

We as a people already accept that sexual freedom and privacy are fundamental rights of every rational adult. Maybe the Supreme Court is ready to do likewise.

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