Are All Private Sexual Acts Constitutional? by Mike McManus
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Fri Mar 28 21:58:40 EST 2003
Ethics & Religion
Are All Private Sexual Acts Constitutional?
By Michael J. McManus
In 1996 Congress passed the Defense of Marriage Act signed into law by
President Clinton. It states that "the word `marriage' means only a legal
union between one man and woman as husband and wife." And 36 states have
passed similar laws.
All could be tossed into the ashcan of history - along with a 1986
opinion of the Supreme Court which upheld a Georgia sodomy statute.
Chief Justice Warren E. Burger wrote that to overturn the law would
"cast aside millennia of moral teaching" to say sex between gay men is
"is somehow protected as a fundamental right."
Only 17 years later, the court is being asked to overturn a similar
Texas law and label Burger's view as bigoted and archaic. "There is no
legitimate, rational reason for only same-sex couples to be treated as
second-class citizens," argued Washington lawyer Paul Smith this week.
Chief Justice William Rehnquist demurred that differences between
heterosexuality and homosexuality had been "recognized for a long
Indeed, as recently as 1960 all 50 states had laws against sodomy, some
of which are as old as the nation. However "three-fourths of states
(currently) don't regulate this conduct for anyone," Smith asserted.
He noted that the Texas law that prohibits "deviate sexual intercourse,
namely anal sex" but "only for same-sex couples." It does not apply to
the same sexual act by heterosexuals.
That violates 14th Amendment's guarantee of equal protection under the
law because "it is directed not just at conduct but at a particular
group of people - same-sex couples," Smith said in defending two Texas
men who were discovered by police having anal intercourse in a Houston
apartment. He also asserted there was an invasion of privacy, though
the police were investigating a false report of a disturbance involving
a gun, when they entered John Lawrence's apartment where he was having
sex with Tyron Garner. Both were fined $200.
Harris County, Texas District Attorney Charles Rosenthal argued that
the Lone Star State's ban "does not violate the 14th
Amendment...because the Constitution has never recognized a fundamental
right to engage in extramarital sex." America has a long tradition of
regulating sexual conduct outside of marriage. And Texas "has a right
to set moral standards and can set bright line moral standards for its
In emphasizing the right of states to pass laws that uphold marriage by
frowning on extra-marital conduct, he noted the Supreme Court settled
the matter in its 1986 decision in the Georgia case.
Smith constantly reinforced his arguments that the case went beyond the
equal protection clause to involve a fundamental right of ALL adults to
engage in sex in private.
Justice Antonin Scalia fired back, asking Smith, "Aren't there statutes
on adultery? Are they unconstitutional? What about rape laws that
only apply to male-female rape? Do you think they are
unconstitutional? Why is this different from bigamy?"
Although Scripture was not quoted, what came to my mind was Hebrews
13:4: "Honor marriage, and guard the sacredness of sexual intimacy
between wife and husband. God draws a firm line against casual and
illicit sex." (The Message)
However, more justices appeared sympathetic to gays challenging the
Texas law. When Rosenthal emphasized "the rights of states to determine
their own destiny," Justice Stephen Breyer said it appeared that Texas
was claiming the right to ban private sexual behavior simply because it
did not like it.
Rosenthal retorted that if a change in law is needed, "it belongs in
the Statehouse of Texas, not this court," with an impetus from "the
people of Texas" who decided that the "line should be drawn at the door
of the marital bedroom."
Breyer snapped, "This case is in the bedroom."
Justice David Souter asked Rosenthal "What harm does the law prevent?"
Oddly, he did not reply that anal sex is the way 150,000 American men
An "amicus" brief of the Family Research Council quoted historians Will
and Ariel Durant: "Sex is a river of fire that must be banked and
cooled by a hundred restraints if it is not to consume in chaos both
the individual and the group."
Laws that approve of sex only within marriage elevate that
relationship. It has "as noble a purpose as any involved any involved
in our prior decisions," the Supreme Court stated in a 1965 case.
Congress, in supporting of the Defense of Marriage Act, wrote: "Why is
marriage the most universal social institution, found prominently in
virtually every known society? Much of the answer lies in the
irreplaceable role that marriage plays in childrearing and in
Copyright 2003 Michael J. McManus
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