Homosexuality And The State

The US Supreme Court has overturned a Texas ban on consensual homosexual sex on a 6-3 decision today. The case of Lawrence v. Texas overturns the 17-year-old case Bowers v. Hardwick that allowed states to ban consensual sodomy.

The argument made by defenders of the law is that banning homosexual sex somehow is a promotion of marriage and the family. The logic behind that is exceptionally flawed. It rests on two assumptions: that homosexual sex in the privacy of someone’s own home somehow effects marriage, and that if sodomy was outlawed suddenly homosexuals would be getting married and starting families. Neither contention truly makes sense.

Setting aside the moral issues, the legal issues behind the case are clear. While the decision paints the issue as one of personal freedom, the constitutional issues are also critical. There is no justification for giving the state the right to interfere in acts occurring in the privacy of one’s own bedroom. In order to uphold the Texas law, the Court would have to make the argument that the police should have the ability to enforce this law. In other words, the Court would have to completely undermine the idea of personal privacy. Such an infringement is intolerable in a free society. The Framers of the Constitution designed a system in which the powers of the state were specifically limited in order to preserve individual liberty. As Justice Kennedy writes in the majority opinion, this case does not involve public conduct or prostitution, and it does not advance giving any formal recognition of homosexual relations. It does say that what two people do in their bedroom without hurting anyone is not a legitimate area for state interference. In terms of constitutional law, this is the decision which most upholds the spirit of individual liberty under law.

4 thoughts on “Homosexuality And The State

  1. You realize, of course, this puts you at odds with Rehnquist, Scalia, Thomas, and worst of all, the Republican Party platform. I never thought I’d see this day come. Dissent from the Republican party from the keyboard of jayreding.com. You better hope they don’t see this. As John McCain, Mark Hatfield and Jim Jeffords can attest to, there is no longer room for dissent within Republican ranks.

  2. Pffft. Mark, if knowledge of the Republican Party were gasoline, you couldn’t run a motorcycle around the inside of a Cheerio.

    In keeping with the party’s status as the one genuine big-tent in American politics, the GOP has the same range of opinion about gays and all their attendant issues (marriage, sodomy, etc) as society at large; intolerance, acceptance, practice (the Log Cabin Republicans are a much more interesting presence in the GOP than the Stonewalls are in the Dems), they’re all there. And there’s a vigorous debate going on among everyone. And, eventually, the general consensus will shake out…

    …and whatever it is, it’ll be less groaningly stupid than whatever the Democrats do!

    (Yeah, that’s inflammatory. Some days, you just have to uncork it…)

  3. Well said, Mitch.

    And for the record, I’m not beholden to the Republican Party in any way. I no longer work for the Party, and I am perfectly fine with bashing Republicans when they deserve it. However, on most of the issues I tend to be interested in such as national defense and economic freedom, the GOP tends to do right. (With some notable exceptions such as the new Medicare bill, steel tariffs, and some other pieces of bad policy.)

    Besides, the Vast Right-Wing Conspiracy keeps forgetting to send me my checks.

  4. It’s not surprising that you view the steel tariffs as being so awful. It seems any piece of legislation that doesn’t either erase blue-collar jobs or shrink the size of their paychecks is deemed bad policy by righties. For all your insincere concern in a previous thread about the “flyover people who believe in hard work and personal responsibility,” you sure do enjoy seeing them take a pay cut.

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