Viewpoint: The Sodomy Solution
Repeal, Not Appeal
When the Supreme Court recently upheld a Georgia law that outlaws private homosexual conduct, the common reaction from friends of liberty was that this is a dreadful decision portending a new assault on individual rights. "It is the opening shot of the Rehnquist court," warned one civil-liberties attorney. In fact, however, the Court reached the right decision—albeit for the wrong reason.
The case involved a gay Atlanta man, Michael Hardwick, who was charged under a Georgia antisodomy statute for having sex with another man. The charge was later dropped, but Hardwick sued the state, claiming a right to privacy. When the case reached the US Supreme Court, "the issue presented [was] whether the Federal Constitution [emphasis added] confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal."
The Supreme Court, in a closely divided 5-to-4 decision, ruled that Georgia's law is not unconstitutional. Justice Byron R. White, writing the majority opinion, noted that the ruling was not a "judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable." Rather, it simply said—correctly—that there is no federal constitutional remedy for those who would undo Georgia's law.
To understand Hardwick's assertion of a right to privacy, one must return to the landmark 1965 case of Griswold v. Connecticut, which centered around a challenge to a Connecticut law that prohibited the sale of contraceptives. It fell to the liberals, led by Justice William O. Douglas, to invalidate the law. But how? He couldn't invoke the Bill of Rights—the first nine amendments protect individuals' rights only vis-à-vis the federal government, not state governments.
Douglas might have tried to use the 14th Amendment, which requires that states ensure due process under the law for all citizens, but he didn't. The concept of due process, after all, is a double-edged sword: if a liberal court used it to strike down a Connecticut anticontraceptive law, a conservative court could someday employ it to overturn a New York law that violates, say, property rights.
Instead, Justice Douglas invented a constitutional "right to privacy." He spun it, for all intents and purposes, out of thin air. Douglas's Griswold decision refers to "emanations" and "penumbras" and other hopelessly ambiguous concepts in a successful attempt to invent a hitherto unknown constitutional right.
The liberty-minded have been inclined to applaud Douglas's action in Griswold. A ridiculous, meddlesome law was overturned. In the same vein, it would seem that the Court should have made a similar decision in the Hardwick sodomy case and tossed out the Georgia law.
In fact, however, in Griswold the Court unconstitutionally usurped power properly resting at the state level. True, some bad laws can thus be tossed out. But to grant the Supreme Court broad powers to strike down any state law it happens to dislike is to discard the fundamental premise upon which our political system was founded—federalism.
Too few people understand the importance of federalism to the protection of individual rights. Making sure that the federal government and the state governments do not overstep the clearly delimited jurisdiction laid out in the Constitution is essential to the maintenance of freedom. To allow the court to vitiate federalism—to virtually erase the distinction between the state and federal governments—would result in a megagovernmental entity, acting as a kind of superlegislature and possessing sole power to govern, ultimately, every aspect of this nation's political life.
So why, then, do I refer to the Hardwick case as the right decision for the wrong reason? Because Justice White's opinion, as well as a concurring opinion by Chief Justice Burger, went well beyond a defense of federalism to express support for state antisodomy laws. Like White and the three other majority justices, Burger, exhibiting the same collectivist mentality as the Georgians who passed the law, explained, for example, that "homosexual sodomy was a capital crime under Roman law." Indeed, and so was Christianity.
Of course the liberals, particularly many gay-rights activists, are on the same side of the same statist coin. There is nothing wrong with trying to repeal antisodomy laws, which are stupid, immoral, presumptuous, and unenforceable. But a recent centerpiece of the gay agenda—"gay rights" ordinances—is antiproperty and thus profoundly antiliberty. These ordinances would require landlords and employers, regardless of personal or religious conviction, to rent to or hire gays. And the method liberals chose to attack the Georgia law would, if successful, have concentrated even more power in the federal government (that is, the Supreme Court).
Opponents of Georgia's antisodomy law, and similar laws in 24 other states, should use every available legitimate method to repeal them—but at the state level. They should not look for, nor advance, a federal, constitutional remedy. None exists, and we are freer for it.
Henry Mark Holzer is a professor of law at Brooklyn Law School and the author of Sweet Land of Liberty? The Supreme Court and Individual Rights.
This article originally appeared in print under the headline "Viewpoint:The Sodomy Solution".