Editorial
Supremely Correct on Sex
by Fred E. Foldvary, Senior EditorOn June 26, 2003, the United States Supreme Court declared that laws which prohibit sexual relations among persons of the same sex violate the U.S. Constitution. Homosexual sex, commonly called sodomy, is therefore now legal throughout the USA.
The case originated in Texas, where homosexual conduct was illegal. In striking down such laws, which existed in 13 States, the Supreme Court has confirmed the spirit of the Constitution, which is liberty. The Ninth Amendment of the U.S. Constitution states that the enumeration, or listing, of various rights in the Constitution does not deny other rights held by the people, thus recognizing that the Constitution does not create rights, but rather recognizes already existing rights. All moral rights derive from the basic natural right to do anything that does not coercively harm others.
The Court ruling was six to three. Unfortunately, there are three Justices of the Supreme Court who do not understand liberty. But the case demonstrates the evolution of American attitudes about homosexuality. In 1986 the Supreme Court ruled in favor of a law in Georgia which prohibited homosexual conduct. The Court thus reversed its previous decision on sodomy.
The implications of legalizing sodomy reaches far beyond such conduct. Since homosexual conduct was illegal, this tainted homosexuals - gays and lesbians - as implicitly criminal. This was an excuse to ban them from child adoption, teaching positions, and other such matters. That excuse for legal discrimination is now gone. It remains to be seen whether this will affect the acceptance of known gays in the U.S. military, which still bans homosexuals unless they keep their homosexuality a secret.
The ruling may well also affect other aspects of privacy. If there is a Constitutional right to the type of conduct considered in this case, other private conduct among consenting adults should also logically be legal. For example, if several adults are playing a poker game for money in the privacy of their home, what justifies making this illegal?
Some who oppose this ruling do so on religious grounds. But to ban sodomy because some religions prohibit it amounts to the governmental establishment of religion, which violates the U.S. Constitution. It violates the religious liberty of those whose religion does not condemn the practice.
Some also oppose the ruling because it could lead to legalizing homosexual marriage. But that too is not a proper reason for prohibition. If the government bans an act because legalization could hypothetically lead to legalizing other acts, then anything can be prohibited. The legality of an act has to be considered only on the direct effects of that act, not on what it might possibly some day lead to. A free society does not ban hypothetical acts.
The trend in the US is towards ever greater tolerance of homosexuality. This evolution is similar to the diminution of racial prejudice in the US. Although prejudice still exists, it is now morally unacceptable to express racial bigotry in public. African Americans are now rapidly assimilating into the American mainstream, and bias in housing and employment has largely been removed from the culture, and would continue even if laws prohibiting discrimination were repealed.
Homosexuals in America are still in the early stages of their civil rights movement. This court ruling is like the Supreme Court ruling that struck down racial segregation. It is a landmark decision, but much remains to be done before homosexuals have full equality. It is still culturally acceptable to disparage the "gay agenda" and to use religion as a weapon of discrimination.
Social conservatives complain about the erosion of moral and family values. But homosexuals have families too. Moreover, the "public morals" that may be enforced by the government of a free society are those of natural moral law, not the values of particular religions or even the moral values that a majority of the population may have.
This case shows why it is extremely important to have members of the Supreme Court who understand what liberty is. If there is one test that we should require candidates for the Court to pass, that is an understanding of the moral basis for liberty. Fortunately, in this case, the majority of the Court had it right.
Copyright 2003 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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