Time to Evict Police from Our Bedrooms
Laws Against Sodomy Have Become Outmoded
Tribune, December 5, 2002
435 N. Michigan Avenue, Chicago, IL 60611
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.
[Home] [Editorials] [USA]