Anti-Sodomy Laws

By Russell Shaw
Herald Columnist
(From the issue of 3/13/03)

When the Supreme Court hears oral arguments March 26 in a case challenging Texas's anti-sodomy law, more will be at stake than may appear at first.

If the question were only whether to uphold or strike down anti-sodomy statutes in Texas and a dozen other states, most people probably wouldn't lose too much sleep. Even those who deplore the behavior tend to agree that the private sexual conduct of consenting adults is not government's business.

But what's involved here is not really that simple. Overturning laws against sodomy could be a significant step toward the homosexual activists' goal of legalizing same-sex marriage.

Note that the Texas case (Lawrence v. Texas) is being pressed by the Lambda Legal Defense and Education Fund. This gay organization also represents homosexual couples in New Jersey in a case seeking to legalize same-sex marriage; it is committed, in its own words, to working on behalf of gays "to win and keep the freedom to marry nationwide." (A similar case argued earlier this month before the Massachusetts Supreme Judicial Court is even farther along.)

Although the U.S. Supreme Court upheld anti-sodomy laws as recently as 1986, the fact that it is considering the Texas case means at least four justices wanted to take another look. Justices Stevens, Souter, Ginsburg, and Breyer seem the most likely candidates, and there could be others.

It would be interesting, in passing, to know the views on the larger question—gay marriage—held by some of those Lambda has lined up to submit friend-of-court briefs.

Together with a predictable collection of gay rights organizations and groups like the ACLU, the NOW Legal Defense and Education Fund, and the People for the American Way Foundation, these include such worthies as the Most Rev. Frank T. Griswold, III, Presiding Bishop of the Episcopal Church, the American Friends Service Committee, Amnesty International U.S.A., and, strange to say, the AFL-CIO. May one ask what freedom of sodomy has to do with workers' rights?

There is, in any event, nothing far-fetched in seeing a link between overturning laws against sodomy and securing legal recognition of gay marriage. A bit of history illustrates that.

Back in 1965, in a case from Connecticut (Griswold v. Connecticut), the Supreme Court overturned a state law against contraception. Justice William O. Douglas wrote that it violated an implicit constitutional right to privacy.

Arguments now being made against anti-sodomy laws also were made then. Some Catholics said striking down the anti-contraception statute was in line with the Church's moral tradition. "Little did Catholics realize," writes Donald Critchlow in his history of the birth control and abortion movements, Intended Consequences, "that the Griswold decision, with its privacy doctrine, would become the basis for legalizing abortion."

That happened eight years later. In Roe v. Wade Justice Harry Blackmun used the privacy principle to rationalize legalization of abortion on demand. Justice William Brennan, a Catholic, tutored Blackmun, as earlier he had Douglas, to lean on privacy to get the desired result.

In the weeks ahead, look for media coverage and commentary concerning the Texas case to denounce the absurd and unfair violation of consenting adults' rights involved in laws against sodomy. Expect to hear much about the desirability of keeping government out of bedrooms and the wickedness of gender-based discrimination.

Don't expect to hear a lot about how short a leap it might be from striking down anti-sodomy laws to legalizing gay marriage. But be sure of this: The Lambda Legal Defense and Education Fund and other gay groups are thinking about that.

Shaw is a freelance writer from Washington, D.C.

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