The Supreme Court has been in the news a good deal lately with its controversial rulings in the University of Michigan affirmative action cases and rumors of a possible retirement or two. Today, the court likely will make big news again with another decision in a controversial case. This case, Lawrence v. Texas, challenges state anti-sodomy laws, claiming that consensual, private adult sex is a “fundamental right.”
The case gained a great deal of attention earlier this year when the Associate Press reported that Sen. Rick Santorum (R.-Pa.) compared homosexuality to bigamy, polygamy, and incest. However, the AP report and subsequent news media hype were based on a misquotation by an AP writer named Lara Jakes Jordan – the wife of former Democratic Senatorial Campaign Committee official Jim Jordan.
Jordan quoted Santorum as saying: “If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”
The rub in this report is that Santorum never used the word “gay” (not even in parentheses). His statement referred to consensual sex generally, not homosexual sex in particular.
For weeks the press beat up on Santorum without examining his actual quote or the legal basis for his beliefs. Had they done any research at all, the media would have found that he was and is absolutely right – no constitutionally protected right to engage in consensual sexual behavior exists – and that he based his comments on a 1986 Supreme Court decision, Bowers v. Hardwick, which upheld anti-sodomy laws in Georgia. Here is what Justice Byron White wrote in Bowers:
“Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. . .And if respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road. Even if the conduct at issue here is not a fundamental right, respondent [Hardwick] asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
Let’s hope the Supreme Court does the right thing today and upholds the rights of states to have anti-sodomy laws, and, more importantly, does not create another “constitutional right.”