Sex is not the government's business
Published July 17, 2003

In two recent rulings, the Supreme Court came down on the side of sanity and respect, though in both cases by narrow margins. First, the court decided 5-4 to allow limited uses of Affirmative Action, a decision supported by nearly every institution of higher learning in the country, including the various military academies. Next, the court ruled that Texasís anti-sodomy law was an unconstitutional government intrusion into citizensí privacy, this time by a margin of 6-3. It is about time that these archaic and unjust laws were struck down.

The case before the court involved two men caught engaging in anal sex by police called by a neighbor who falsified his account of a loud disturbance at the menís house. The police were not out looking for people breaking Texasís sodomy laws. Nevertheless, the two men were fined and spent the night in prison; I can imagine few scenarios more humiliating than being arrested for engaging in consensual sex in the privacy of your own home.

Privacy is the issue that is central to the debate surrounding this decision. The New York Times quoted the state of Texas as defending its sodomy law as part of its defense of marriage and child-rearing, as though the law encouraged gay men to have children. The state argued that homosexual sodomy, "has nothing to do with marriage or conception or parenthood and it is not on a par with these sacred choices." Apparently sodomy between heterosexuals is a sacred choice, however, because it is not illegal in Texas. Sadly, I fail to see the connection between marriage, conception and parenthood, and anal sex between a man and a woman.

In fact, it is particularly interesting that the Texas law prohibits such acts only between homosexuals, and not consenting heterosexuals. They have thus declared that it is not the act itself that is offensive, but the people engaged in the act. Were we to apply the same standard based on race rather then sexual preference, I think public reaction might be different. I doubt anyone would uphold a law that barred, for example, consensual sex between blacks while allowing whites to engage in the same activity without fear of prosecution.

I personally do not understand the obvious fear that some groups hold regarding the outcome of this decision and the "sacred status" of marriage between a man and woman. The truth is that homosexuality is a lifestyle choice that many people do not make. There is no danger of marriage or "traditional" families disappearing. I would also argue that "non-traditional" unions are just as likely to produce a loving, stable environment for child-rearing as the many marriages we see from day to day that end in disaster and acrimonious divorce.

This is not to say that I do not believe in marriage; rather, I think that neither homosexuals nor heterosexuals are any more or less likely to be good parents based on their sexual preference. Our adoption laws acknowledge that not everyone is qualified to care for a child, but we have not made a similar judgment where birth parents are concerned. In the end, we should not; as is the decision to have an abortion, the decision to have a child is a deeply private, personal one, and should not be the purview of the government.

There are other arguments against homosexual sex. One of the most prominent is religious: Many Christian sects forbid homosexual sex. They also frown on extra-marital, heterosexual sex, and in some cases contraception. These are, however, injunctions that are of no relevance to modern law. Our system of laws was based on a set of moral and ethical concepts established in part from Judeo-Christian beliefs, but it also owes considerable debts to Roman law as well as English Common Law dating back to secular documents like the Magna Carta. If nothing else, the widespread legal acceptance of contraception and extra-marital sex would seem to suggest that Biblical injunction is not a strong legal argument.

There is little if any evidence that sexual relations between consenting adults has any effect on the moral fiber of our nation. We are not spiraling into corruption and decay. Laws prohibiting public sexual acts are certainly legitimate, as those who do not wish to see such things should not be forced to view them. Laws against violent sexual assault and other forms of sexual predation are similarly sensible. However, I think none of us really wants the government to be a part of what happens in our bedrooms. I commend the Court on a wise and balanced decision.