It's amazing to think that in the United States in the 21st century, you can get arrested for something you do in your bedroom with a willing adult partner. But 13 states still criminalize some types of sexual acts; in four of them, "deviate sexual intercourse" is prohibited only between people of the same sex. (In Massachusetts, a colonial-era law prohibiting "the abominable and detestable crime against nature" is likely to be repealed by a bill approved by the legislature's Criminal Justice Committee this past March; a month earlier, the Supreme Judicial Court ruled that the law does not cover private consensual acts.) Now, by agreeing to hear the case of two Texas men prosecuted for violating that state's sodomy law, the Supreme Court will tackle the constitutionality of these laws for the second time in less than 20 years. If conservatives are principled in their opposition to intrusive government and their support for equal rights rather than special rights for any group, they should be leading the charge for repeal.
True, sodomy laws are almost never enforced. The two defendants in the Texas case, John Lawrence and Tyrone Gardner, were arrested under unusual circumstances: According to news reports, the police entered Lawrence's unlocked apartment in response to a false burglary report phoned in by a friend of the men. It's unclear whether this was a deliberate setup to create a test case.
Still, even rarely enforced laws have an effect. Sometimes, in disputes over issues such as child custody, courts in states with sodomy laws on the books have treated gays as presumptive lawbreakers. In other cases, frequently involving heterosexual male defendants accused of sexual assault, prosecutors have used sodomy laws to obtain a guilty plea or a conviction on a lesser charge—thus making an end run around the burden of proof required by our legal system.
The real significance of sodomy laws, as both sides recognize, is symbolic. For gays and many others who support their cause, these laws are the ultimate expression of state-sanctioned intolerance and discrimination—not to mention an assertion of the government's power to intrude into the most private area of our lives. For those who still champion these laws, it's a matter of publicly affirming traditional morality. "I don't want anybody put in jail for adultery or for sodomy," the Rev. Jerry Falwell declared in a CNN debate with Representative Barney Frank. "But I do want the children of America … to know that this country was built on biblical principles; immorality, whether it's between heterosexuals or homosexuals, and all homosexual behavior is forbidden in scripture. It should be looked at as a taboo."
As Frank correctly pointed out, Falwell is entitled to his views of morality, but he is not entitled to use the state as his bully pulpit. Most of America seems to agree. In the early 1960s, sodomy laws existed in every state of the union; today, they survive in a dwindling handful of states. In fact, nearly half of the 24 states that still had such laws in 1986, when the Supreme Court ruled in Bowers v. Hardwick that state prohibitions on sodomy were constitutional, have dropped them since.
In its controversial 1986 decision, the Supreme Court majority scoffed at the notion that the Constitution creates "a fundamental right to engage in homosexual sodomy." But a lot of people see nothing ridiculous about the idea that the fundamental liberties of Americans include a zone of privacy around sexual relations between consenting adults. The Ninth and 10th Amendments to the Constitution explicitly recognize the existence of basic rights other than those enumerated in the Bill of Rights.
Many conservatives who oppose gay marriage, the inclusion of gays in the Boy Scouts, or school programs promoting gay acceptance argue that they are all for tolerance—just against the public recognition of homosexuality as equal in moral stature to the union of man and woman. Whatever one thinks of such a position, sodomy laws would seem to provide these conservatives with the perfect occasion to demonstrate the sincerity of their pro-tolerance stance. For the most part, however, conservative commentators have remained disappointingly silent on Lawrence v. Texas.
Conservatives have long said that they want to get the government off our backs. If that's a principled stance, they should certainly want to get it out of our beds.