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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.
Or is it?
It seems nonsensical at first glance to assert that sodomy is a fundamental right, particularly in a legal culture incapable of recognizing sexual rights more generally. The real problem, however, is that we've had blinders on for so long that we can't see the obvious: Adult consensual sex, including sodomy, must logically be considered one of the most fundamental human rights of all.
That our sexual rights are not spelled out in the Constitution should surprise no one. It's not that kind of document. If federalists had their way, we would not have had a Bill of Rights, either. The Constitution created a limited form of government and early federalists reasoned that there was no benefit to specifying the people's rights because the government did not have jurisdiction over those rights in the first place. But anti-federalists wanted things spelled out, and refused to ratify the federal Constitution without a Bill of Rights.
James Madison's brilliant compromise was to enumerate a short list of rights: eight amendments to satisfy the anti-federalists, and two more to placate federalists. Most relevant to the topic of sexual rights, the Ninth Amendment asserts the following: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The right to have sex is a perfect example of a crucial yet unenumerated right retained by the people, because without sex, we note, there would be no people.
If something is a right, one must have the freedom to choose it and, just as importantly, the freedom not to choose it. We clearly have the right to engage in reproductive sex, but if baby-making were our only option, that wouldn't in fact be a right. That would be a dystopian scenario straight out of The Handmaid's Tale. 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.
The Founding Fathers certainly appreciated the vagaries of sex. John Hancock maintained a mistress. Alexander Hamilton wrote a short book about one of his extramarital affairs. Benjamin Franklin consorted with prostitutes, had affairs with unmarried women and fathered a child outside marriage. And Thomas Jefferson fathered multiple children with a slave concubine.
Present-day politicians, the mayor of Los Angeles included, have routinely sauntered down this path as well. Although the framers of the Constitution never spelled out exactly where one could put one's naughty bits, they did spell out, in the Ninth Amendment, that the Bill of Rights was never intended to be an exhaustive or comprehensive list.
The Supreme Court has for many years now suffered from Ninth Amendment amnesia, which is based on the fear that to acknowledge its existence would unduly elevate unenumerated rights. Invoke the Ninth Amendment and the judiciary will consider you a radical or worse — which is especially ironic since the Ninth Amendment ensures a constitutional rationale for protecting individual liberty, sex included, and it establishes the personal autonomy necessary to act upon moral choices without government interference.
If nonreproductive sex is recognized as a fundamental human right retained by the people, the burden to criminalize it will then require a very compelling justification, or evidence that forbidding the choice not to reproduce serves a compelling state interest. Offending the GOP's sensibilities will not suffice.
The Ninth Amendment is the best hope for protecting our fundamental right to choose nonreproductive sex, sodomy included. Individual liberty depends upon it, and so do your sexual rights. Give sodomy a chance.
Paul Abramson is a professor of psychology at UCLA and the author of Romance in the Ivory Tower: The Rights and Liberty of Conscience and (with Steve Pinkerton and Mark Huppin) Sexual Rights in America. L.J. Williamson is a regular contributor to L.A. Weekly.
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