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A Door Marked 'Private'

Supreme Court has barred government from places it ought not to enter.

June 27, 2003

Laws that criminalize sexual behavior between consenting adults have little resonance in California, where legislators repealed the state's sodomy law in 1975. The driving force behind the repeal was then-Assembly member Willie Brown, and the vote was so close that Lt. Gov. Mervyn Dymally had to rush back from out of state to break a tie. The argument, just as in the Texas case decided by the Supreme Court on Thursday, was between the right to legislate moral issues and a right to privacy for consenting adults.

The same argument is still alive in parts of the country, including Texas, where a 1973 law prohibited acts of sodomy between members of the same sex. The Supreme Court, in its 6-3 decision, struck down the law by reversing a 5-4 decision in 1986 that upheld a similar law in Georgia.

The ruling spoke broadly of dignity and respect for homosexuals but also hewed narrowly to the case at hand, saying the constitutional right to privacy on which the ruling was based applied to private, consensual acts -- not to sex with minors, or involving any kind of coercion, or even to civil matters such as marriage.

The majority opinion, by Justice Anthony M. Kennedy, notes that ever fewer states have sodomy laws, and that laws applying specifically to homosexual relationships are not of long standing, having been passed in the 1970s and later. The 1986 decision that was overturned, known as Bowers vs. Hardwick, and the Texas case both involved police finding men engaged in a sex act in a private home.

Thursday's dissenters -- Antonin Scalia, who wrote scathingly that the majority had "taken sides in the culture war," along with Clarence Thomas and Chief Justice William H. Rehnquist -- were careful to say they had nothing against homosexuals. Thomas, in a brief separate comment, even called the Texas law "uncommonly silly," quoting from a 1965 decision that struck down a Connecticut law prohibiting the sale of contraceptives. However, said Thomas, it is the Texas Legislature that should overturn the law.

That same 1965 contraception case was a foundation for the majority's ruling. Other underpinnings were Supreme Court cases that struck down prohibitions on the sale of contraceptives to unmarried people and to minors, as well as 1973's Roe vs. Wade, which made abortion a privacy right under the 14th Amendment. Society changes, and the spare wording of the Constitution takes on different meanings for different times. Once, privacy and the sanctity of the family gave parents the right to beat their children and husbands to force wives to have sex. Sex between people of different races was prohibited in the not-too-distant past.

Now, the right of the state to enter the bedroom of consenting adults is gone. Moral and scientific debates about sexuality are vigorously alive, but increasingly and properly outside the courtroom.

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