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Give Sodomy a Chance 

Sexual rights are protected by the Constitution, if only the U.S. Supreme Court would open its eyes

Thursday, Jan 27 2011
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Read more in: "Sex and This City: What are Angelenos Looking For?," "UCLA Sex Survey Results," "iPhilandering: It's Easy to Be Sleazy!," and "Uncomplicated Casual Sex? Not Easy to Find on Craigslist."

You have no legal right to sex, and never had.

In fact, in case you haven't heard, Texas Republicans want sodomy to be a crime again. Last June, the Texas Republican Party embraced a political platform that opposed the legalization of sodomy.

click to enlarge PHOTO BY STAR FOREMAN

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To be clear, sodomy law refers to either oral or anal sex. It would be a bleak day if Congress made the eradication of the backdoor and the blow job a priority over war, economic upheaval and environmental disasters, but that's beside the point. The bigger question is, does sex, sodomy included, warrant constitutional protection?

The answer is no. You have only a "right to privacy," and in 1965, when that right first came into being, anyone who wasn't married missed the boat. Privacy rights are more inclusive now, but they're still only tangential to sex; they're more akin to a cone of silence than an affirmative right to sexual activity. 

The right to privacy was recognized only after a legal challenge to an asinine Connecticut law about condom use. Unitl the mid 1960s, a gent could tell his pharmacist that he wanted to protect himself from any nasty down-there diseases his girl might have, but he couldn't let on if he also wanted to protect her from pregnancy. The first was A-OK but the second could land him in the slammer.

New Haven Planned Parenthood executive director Estelle Griswold mounted a direct challenge to this "uncommonly silly" law by opening a birth-control clinic that dispensed condoms for contraception. She was busted as a result, and her appeal, Griswold v. Connecticut, ended up in the Court of Last Resort. Through smokescreens and mirrors, the court's attention was diverted from Griswold's arrest and the question of whether birth control should be accessible, to the loftier and further removed ideal of a right to privacy. Supreme Court Justice William Douglas invented this putative right on the palpable rationale that married couples needed to be left alone to make decisions about family planning. Six other justices agreed and Griswold walked.

Rather than asking deep questions about unenumerated rights retained by the people (the benchmark of the Ninth Amendment), the court tiptoed around the issue of sex by protecting the psychological space in which it occurs. Sex became a nameless something that couples did when making decisions about family planning.

Subsequent cases eventually extended the right to privacy to unmarried heterosexual couples and, most contentiously, to abortion in 1972. 

Privacy hadn't yet been extended to gays, however.

In 1982, Atlanta bartender Michael Hardwick was arrested for an alcohol infraction by a police officer who knew Hardwick is gay. Hardwick paid the $50 fine, but a mix-up over his scheduled court date caused a warrant to be issued for his arrest, which Hardwick's arresting officer decided to serve personally, within two hours of its issuance. On entering Hardwick's home with permission from a half-sleeping houseguest, the officer found Hardwick having oral sex with another man. The cop arrested both men on sodomy charges, with Hardwick loudly and uselessly protesting, "What about my right to privacy?"

Bowers v. Hardwick wound up in the Supreme Court, where in 1986 the court ruled 5-4 that the right to privacy was irrelevant because Hardwick had been engaged in the commission of a crime. Although married and unmarried heterosexual couples, pregnant women and teenagers wanting contraception now were entitled to the right to privacy, gay men or lesbians who engaged in sex, even in private, were criminals.

Because Hardwick's consensual encounter was considered a criminal act, his rights had not been violated. As Justice Byron White infamously proclaimed, there is no fundamental right to sodomy.

It may seem unlikely, but police officers apparently barge in on acts of transgressive love more often than one might suspect.

In 1998, Robert Eubanks and Tyron Garner had spent the day lugging furniture, helping their friend John Lawrence move into a new apartment. Their work done, they went to a Mexican restaurant for dinner and margaritas. Back at Lawrence's apartment, Eubanks and Garner got into a fight. It ended with Eubanks leaving in a huff. Garner and Lawrence stayed together, which only escalated Eubanks' ire. In a fit of jealousy, he called the police on the pair, saying there was a black man in the apartment, "going crazy with a gun." 

There was no gun, but on Eubanks' urging, the police entered the bedroom of the apartment, where they witnessed Garner and Lawrence having sex. Or not. Many people have expressed suspicions that the police had embellished their story. Regardless, the men were subjected to a humiliating arrest under the rarely enforced Texas sodomy law. 

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