Remember Kenneth Starr, the one time, national voyeur? Apparently you can have a lay as long as you don't lie. But he wasn't convicted, so I guess you can lie like a rug.
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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
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."
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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.
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.
Their trial became the game-changing 2003 case Lawrence v. Texas, which overturned Bowers v. Hardwick. In a 6-3 decision, the Supreme Court concluded that gays and lesbians do in fact have the right to privacy, and that Bowers violated the 14th Amendment's due process guarantees.
Supreme Court Justice Antonin Scalia, however, was outraged, complaining in his dissent that his colleagues missed the point entirely. In Scalia's view, due process applies only to fundamental rights spelled out in the Constitution. Since the Founding Fathers neglected to include in the Bill of Rights a tip sheet on which sexual positions were permissible, sodomy, he fumed, is not a fundamental right.
35 comments
This is a fascinating attempt to provide a rationale for total consensual sexual freedom unconstrained by any legal limits. The problem with it is that its essentially circular logic: you clearly assume that "nonreproductive sex is [a] a fundamental human right retained by the people", and then attempt to find a legal and logical rationale for that position. But a great many people - including, one suspects, SCOTUS Justice Scalia, do not so assume. Neither do any of the Abrahamic religions, or most societies throughout human history.
>>If something is a right, one must have the freedom to choose it and, just as importantly, the freedom not to choose it.>>
True.
>>Rights are predicated on choice, therefore we must be free to choose to have reproductive sex, or nonreproductive sex, or no sex at all. Abstinence is one way to choose not to reproduce. Oral or anal sex is another. The same is true with contraception, same-gender sex and, ultimately, abortion. All of these choices enable consenting adults engaged in sexual relationships void of tangible harm to exercise the fundamental human right not to reproduce.>>
Non sequitur.
Why does the negative right NOT to reproduce inevitably produce the positive right TO any form of consensual sexual liason? If I don't want kids, I can not have sex. That is only a deprivation of rights if you are working on the presupposition that sexual gratification is a fundamental right. While you and many others may assume this, you have not proved that it is by the above argument. Its like arguing that people have the right NOT to be forced into monogamous heterosexual marriage and that therefore implies that they have the right to legal recognition of every form of relationship conceivable, from polygamy to homosexual marriage to serial monogamy. Virtually all religions, and most societies historically, have not viewed sexual activity as a fundamental right, but rather as a privilege to be enjoyed within certain specific contexts. (The hypocrisy of 18th C Christians and Deists who had mistresses and consorted with prostitutes has little or nothing to do with the legal or moral issues). The concept that not having sex is harmful to human beings has only become widespread in the last decades of the 20th C onwards. I have yet to see any scientific or medical evidence for the thesis, whatever Freud might have said.
An interesting article, but as said, you assume your moral and social case is proven before you start. Many would disagree.
Firstly, I agree with MJP. The laws at issue in Bowers v. Hardwick and Lawrence v. Texas were both state laws. In deciding which provisions of the Bill of Rights to apply to the states through the 14th Amendment's Due Process clause, the Court was divided between selective or total incorporation of amendments 1-8. The 9th and 10th Amendments were not even considered as possibly being incorporated, so as to apply to the states. So, I don't see adequate protection there.
I also see a problem with the framing of the right as a "right to reproduce." By the very definition, a holding as such would seem to have some serious repercussions for the gay community. If we are prepared to say we all have a choice whether we do or do not want to engage in reproductive or non-reproductive or no sex, we risk discrediting a policy argument fundamental to the advancement of gay rights: that homosexuality is not a choice. If we are ever to see equal protection of the laws, we must demand that assertion be premised consistently in relevant legislation.
So, if we do not have the right to participate in oral and/or anal sex, then why is the other kind ( whadayacallit ) ok? Shouldn't that be regulated and licensed? Maybe we need to have state issued licenses for these things. Think of the revenue. We just need to tone down our humanity a bit and submit to the wisdom of our more conservative ideologues. They seem to feel that they know what's best for everyone, so we should just sit up straight and be the best little citizens we can be, and if you want to have any of the sex stuff, just go down to city hall and get a permit.
I'd like to say 'up yours' but somehow I think that would be rude. To be sure, however, history will continue to reveal its presence over and over again. Whatever it is that mankind is migrating to, or evolving from, it won't be good on this here earth as it tumbles through the vacuum universe all alone.
Your historical analysis concerning the Bill of Rights and the Ninth Amendment is correct except for one huge point - the Bill of Rights was originally intended only to constrain the federal government and not the states. In fact, the reason why many felt a Bill of Rights was unnecessary is that they believed the federal government was already limited to its enumerated powers in Articles I - VII and therefore lacking the power to violate the fundamental rights of the people. The Ninth Amendment was absolutely not intended to mean that the federal courts could strike down state laws that infringed on the "unenumerated rights" of the people, which is what you are talking about in Bowers and Lawrence.
Even if sexual autonomy is found to be protected under the Ninth Amendment, this would only mean that the federal government cannot infringe it, which doesn't get us very far because it is the states who tend to pass the sort of repressive laws you mention. The idea that parts of the Bill of Rights apply against the states did not come up until after the Civil War when the 14th Amendment was ratified - the Supreme Court has held that its prohibition against states violating "due process" was intended to guarantee many of the fundamental rights listed in the Bill of Rights against state infringement. But certainly no one at the time of the ratification of the 14th Amendment believed that it was intended to take the power to define the Ninth Amendment "unenumerated rights" of the people out of the hands of the states and put it in the hands of the federal courts by giving them the authority to strike down any state law that interfered with whatever they imagined to be a "fundamental right."
The basic problem with the Ninth Amendment is that it is so vague; by giving judges the power to decide without guidance or constraint what our rights are and strike down any law that violates them as unconstitutional, we take much of the ability to define what our rights are out of the hands of the people.
Excellent argument MJP. So based on your reasoning, if a state made sex a state constitutional right, it seems that the 9th amendment would forbid the federal government from infringing upon that right. Unless, of course, the courts decide that because of porn and prostitution sex is covered by the Commerce Clause. Then by extension would marriage then become reclassified as a commercial transaction?
The 9th Amendment would be better applied to the Defense of Marriage Act (DOMA) which forbids federal recognition of gay marriage. Since marriage in general is already a recognized federal right, and states determine the terms of marriage, DOMA could not justifiably bypass the 9th Amendment without violating the 14th Amendment's Equal Protection Clause.
Then because of the Full Faith & Credit Clause, Texas (for example) would have to recognize a married gay couple who moved there from Massachusetts. Since married couples have sex and gays can only perform sodomy or the like, all sex would have to be legal for gay married couples, and perhaps via the 14th amendment legal for all couples. Texas could then in theory become the first state forced to legalize gay marriage.
I'd say that Texas might as well also legalize cats and dogs living together, except that of course would lead to mass hysteria, unlike the current rational political climate we live in.
And thank god, they did. Otherwise the League of Petty Neanderthals would be able to throw insurmountable obstacles from the fundamental rights guaranteed in the FEDERAL constitution from applying to the states. And it was just such a scenario that the SCOTUS realized would occur if the states were free to enact state laws to enshrine their petty peeves against fellow citizens.
Unfortunately for us at the dawn of the 21st century Neanderthalism is on the rise. One can only hope that enough psychological evolution occurs in the general populace to once again put them in their place.
A country that prides itself on freedom and liberty should never be afraid of enumerating rights that further them. A country's constitution is a document regulating the functioning of government, not a straightjacket limited to a laundry list of rights in which everyone including the butcher, baker, and candlestickmaker agree. One should not have to be liked to have rights. There are plenty out there who would fail that test.
The evolution of our understanding of what the constitution means is one of the most outstanding achievements of American history. It is a cornerstone of the enduring power of the American form of government. It is only when we begin restricting those rights and chip away at them that we run the same risk as every other historical government that went down the path, the path of failure and eventual conquest.
The entire point of having a constitution is to protect rights against the wishes of the majority; this is a good thing if we know what the rights are. But unenumerated rights are, of course, not spelled out - so the question is, who gets to decide what they are? If you are saying that the Constitution should protect rights that the majority of people disagree with, you really have to explain who gets to decide and enforce these rights, and why this is legitimate. Perhaps you think federal judges should have nearly absolute power to decide what our rights are, and are not. I understand the sentiment; I have spent lots of time working for federal judges, and I certainly have more trust and respect for them than any other branch of the federal government. But when the judges start to disagree with your view of what our rights are, this power will begin to seem completely tyrannical.
Hmmm Ninth amendment, I wonder if the hemp smoking founding fathers had thought cannabis would be covered under such it?
It's just plain annoying how some busy bodies out there feel the need to stop people from doing absolutely everything that they themselves do not do. Well I'm a atheist who doesn't drink, therefore under there sense I believe no one has a right to God or alcohol; how does that work for all you bible thumping boozers. When will these idiots learn that in a free country a person should have the right to do anything as long as it doesn't harm others. And last time I checked getting or giving a knob job with a consensual partner doesn't hurt anyone (unless they use there teeth). The government and all politicians just need to back off.
Pure hypocrisy. I'll bett $1000 that the same people (in Texas, or anywhere else) that want to criminalize sodomy believe (or hope) that it would only be used against gays (but of course the law could never say that, because then it would probably be ruled unconstitutional). If cops and prosecutors start using the same law against straight people, then citizens in general would see how stupid it is for the government to make your funny business its business.
The Government has NO RIGHT dictating what can happen between a GIANT RABBIT and SNOW WHITE.
Ninth Amendment "amnesia" indeed. I'd say it's Ninth Amendment denial. Imagine if those things that the Constitution (that wondrous open-ended model) doesn't mention but people have done since the beginning of time were considered 'rights' instead of prohibited, or at best called 'privileges'. You would have a right not only to participate in any kind of sexual acts with whomever you wanted, but a right to smoke or otherwise consume any substance, a right to buy and sell whatever you wanted to make a living... the only things the government could prohibit would be those things that have always been considered crimes, like theft, assault, murder and being a complete jerk. Moreover, the rights of an individual person would trump the 'rights' of businesses whenever there was a conflict. This simply could not be allowed, and from very early on in our countries history, courts (at the urging of power-hungry government officials and profit-seeking businesses) decided that the Ninth Amendment was merely some nice sounding words that meant nothing.
Surely government should have absolutely no business in dictating what consenting adults can do to each other in private
This must be an example of that Small Government that stays out of your personal business that Republicans alway talk about...Oh, wait
I really think that in this instance, it being in Texas, that they are probably making this about gay sodomy.
well written.
anyone in government should ask the question "does this behavior harm anyone?"
then ask "does this law take someones rights away?"
if we, as a people, demanded our representatives worked on this principle, most of our troubles would dissapear.
Government doesn't need to invade our homes with rules. I kind of wonder how many of these Republicans are committing these acts that they want to criminalize.
Everyone must have his right to privacy to do whatever a couple want to each other until they both agree with it.
The Founding Fathers were not platonic in their relationships. The did appreciate sex and very likely enjoyed the blowjobs the ladies gave them, whether those ladies were wives, mistresses, or hookers. But it's not known if anal sex was among these activities; that would take a bit of research.
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