Sunday, June 29, 2003

Supreme Court: Anti-sodomy laws

Ruling also raises questions

The anti-sodomy laws of Texas and a dozen other states, invalidated 6-3 Thursday by the U.S. Supreme Court, were not only rarely enforced anachronisms but noxious, offensive instruments by which government deigned to claim a right to invade the bedroom and regulate consenting adults' private behavior. The demise of these embarrassments is welcome, and it signals a victory in the struggle for dignity and respect by gays and lesbians. As Justice Anthony Kennedy wrote, "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."

That being said, the decision in Lawrence vs. Texas may not be quite the "transformative" event (as one gay-rights activist put it) that puts America on the fast track to gay/lesbian marriages and other epochal social changes - not in the near term, anyway. The court may have raised more questions than it answered, and that may have been its intention. Certainly it will generate debate - not to mention litigation - on sexual orientation and equality, topics that have had particular resonance in Cincinnati with the decade-old Issue 3 controversy. We welcome that debate.

The court didn't simply throw out the Texas law and its ilk as unconstitutional for singling out gays. It reversed a previous ruling on anti-sodomy laws, Bowers vs. Hardwick (1986), with a broad discussion of liberty, musing on the nature of "liberty of the person both in its spatial and more transcendent dimensions."

While this may have been truly a Zen moment for the majority justices, it is not terribly helpful jurisprudence. Is personal liberty in sexual matters inviolate? Doesn't the Due Process Clause, on which the court bases this ruling, imply a government's right to deprive persons of liberty under certain circumstances?

The court tried to limit the ruling's scope, saying it does not involve minors, persons under coercion, public conduct or prostitution. "It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." And it declared itself "quite unwilling" to assert a "fundamental right" to homosexual sodomy. But the arguments it uses to overturn Bowers unnecessarily open the door to challenging any morally-based law that would curtail individual liberty.

As Bowers itself said: "The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." Business has just picked up.

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