Sex, the State, and the Supreme Court

Conservatives and liberals each have a lot to learn from a case now before the U.S. Supreme Court challenging a Texas law criminalizing "homosexual conduct"--that is, sex between consenting adults of the same gender. Texas' law is fundamentally un-American, and everyone across the political spectrum should unite in opposing it. They haven't of course, but they should.

Ostensibly, the question in the case will be whether the Constitution protects a "right" to homosexual conduct. But that obscures a more fundamental issue that is too often ignored in constitutional cases: Does the government have the power to be regulating people's private lives in the first place?

The difference is not just a matter of semantics. The Declaration of Independence, which establishes the ethical foundation of American government, states that government exists to secure broad rights to "life, liberty, and the pursuit of happiness" and gains its "just powers" from the "consent of the governed." Government, in other words, must establish its authority to act. Individuals, by contrast, already have that authority and need not establish it.

Modern constitutional jurisprudence turns this principle on its head. As the Texas court saw it, the question was whether Mr. Lawrence could establish a "fundamental" right to homosexual sodomy. Since no such right has ever been recognized, the court upheld the law.

Power Inherently Limited

A much better approach, and one more consistent with America's founding principles, would be to require the State to justify its decision to outlaw the conduct in this case.

Lawrence and his partner are consenting adults who were engaged in private conduct within the confines of Lawrence's own home. They were harming no one.

While it is true that laws against sodomy have a long history in this country, so does the principle that government power is inherently limited. The touchstone of that limitation is harm to some identifiable third party. Since Texas can show no such harm--indeed, it did not even try--it has no authority to enter this sphere of individual conduct.

Conservatives often contend states have the authority to pass laws that express the moral sentiments of a majority of the community. The courts, they say, have no authority to intervene in those democratic decisions.

But all laws are passed by democratic processes and can be said to express the moral sentiments of the community. Texas claims, in essence, that laws do not need any real justification. Once passed, this argument suggests, a law is assumed to have the authority of "democratic processes" and therefore cannot be challenged in court. That is a claim everyone in America should find dangerous.

Dangers to the Right and Left

Conservatives, especially, ought to be wary of casting their lot with the states on this issue. If the states can ban purely private conduct between consenting adults, what is to keep them from banning home schooling, or instituting mandatory preschool, or requiring parents to follow certain nutritional guidelines for their children?

Unfortunately, the left's approach is no better. Where conservatives extol the virtue of state government power applied to moral or lifestyle issues, the left extols the virtues of government power applied to regulating property and economic affairs. Both sides are comfortable with the use of government power when it suits their immediate agenda ... but both ought to realize this approach is only as good as one's ability to control a particular legislature. Neither conservatives nor liberals can "pick and choose" which aspects of individual liberty are beyond government power. Privacy is worth very little, for example, if one has no property on which to practice it.

America is the only country founded on the principles of individual rights and limited government. Government power must be limited if we are to live in a free society. Until everyone, of every political persuasion, takes this principle to heart, cases such as Lawrence v. Texas will amount to little more than political battles over one more "right," while the war over the proper role of government in our lives rages on.

Dana Berliner and Steve Simpson are attorneys with the Washington, DC-based Institute for Justice. A version of this article first appeared on Salon.com and is used here with permission.
http://www.ij.org

For more information ...

Amicus Brief of the Institute for Justice, John Geddes Lawrence and Tyron Garner v. State of Texas. Institute for Justice attorneys assert on behalf of Lawrence and Garner that the case is about the proper scope of and limits on government power more than it is about homosexuality or homosexual conduct. Texas' statute exceeds the police power, they note. (Institute for Justice, January 16, 2003, 36pp.)

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