, February 25, 2000
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In the excellent article Roe v. Gay, gay abortion foe Joseph Beard is quoted
saying "The Supreme Court specifically rejected the right to privacy in gay and
lesbian relationships in Bowers v. Hardwick and in an earlier case
in the past
20 years the states that have decriminalized sodomy have done so not by court decree but
by legislative action based on concepts of liberty rather than privacy."
While Mr. Beard has a strong grasp of federal law, his knowledge of state sodomy-law
repeal efforts is much less accurate.
In the past 20 years, 7 states have had their sodomy laws struck down by judicial
decree of their unconstitutionality. Only 4 states (Alaska, Wisconsin, Nevada, Rhode
Island) and DC have had successful legislative repeals. Additionally, another 5 states
have had incomplete rulings that are either on appeal now, or have left part of the state
without an enforceable sodomy law. Currently lawsuits are working their way through the
courts of Virginia, Louisiana, Texas, Arkansas, and Puerto Rico.
In every legislative repeal effort, including the 1993 repeal in DC, privacy was the
primary issue on which the laws were repealed. All of the court cases since the 1986 Bowers
decision have rested on state constitutional protections of privacy and equal protection,
which are usually stronger than the federal protections.
In the 1997 Montana case Gryczan v. Montana,
which struck down that sodomy law, the court ruled that "Unlike the federal
constitution, Montanas Constitution explicitly grants to all Montana citizens the
right to individual privacy. Article II, Section 10 of the Montana Constitution provides:
Right of privacy. The right of individual privacy is essential to the well-being of a free
society and shall not be infringed without the showing of a compelling state
In the previous 2 decades, 21 other states had their sodomy laws repealed
legislatively. Almost all of those states repealed their laws not on the basis liberty,
but rather as criminal code modernization.
Mr. Beard and other conservatives should accept that privacy is an essential concept of
liberty. They should also recognize the very conservative and Reaganesque principle that
individuals can make better choices for themselves than the government can make for them.
The choice of whom to love, which sexual acts to engage in, how and when to reproduce or
prevent reproduction, and whether to terminate a pregnancy are all deeply personal and
private decisions that government cannot decide in one way for all people at all times.
These are areas where conservatives should hold to their beliefs in limited government and
embrace the courts that restrict the state regulation of sex and reproduction.
Bob Summersgill, Adams Morgan