February 15, 2003


Court to Hear Texas Case on Gay Rights: Challenge to State's Sodomy Statute Could Lead to Landmark Ruling (Charles Lane, December 3, 2002, Washington Post)
The Supreme Court agreed yesterday to hear a Texas gay couple's challenge to that state's ban on homosexual sodomy, setting the stage for what could be a landmark ruling on gay rights.

The question of whether states may criminalize private consensual sexual conduct between members of the same sex had apparently been settled in 1986, when the court ruled 5 to 4 that the Constitution permitted Georgia to punish a gay man for violating its sodomy statute.

But yesterday's announcement by the court, whose personnel has changed considerably since 1986, appears to suggest interest by at least some justices in reassessing that ruling. In their appeal petition, lawyers for the Texas couple specifically urged the court to overturn the 1986 decision, which held that the right to privacy did not include a right to homosexual sex.

The number of states with sodomy laws that apply to all people has declined from 24 to 13 since 1986, and only four states -- Kansas, Oklahoma and Missouri, in addition to Texas -- have laws that criminalize only homosexual sex. But both proponents and opponents of the Texas law are treating the case as one of potentially major significance.

The advisability of maintaining sodomy statutes in this day and age is a fit subject for debate: we support keeping them, as an appropriate expression of community morality, but not prosecuting under them, except in extraordinary circumstances. However, there is no reasonable construction of the U.S. Constitution under which you can fiind these laws to violate any of its provisions. The Constitution is devoid of privacy rights. If folks want to add them then they should use the democratic process and offer an amendment. They don't because they know it would not pass and, having not passed, would call into question the legitimacy of judge created "privacy rights". Posted by Orrin Judd at February 15, 2003 6:44 AM

Mr. Judd;

Having laws that are only enforced "sometimes" is the worst of both worlds. It discourages the law keepers, encourages the law breakers while also providing scope for politically motivated prosecutions. Not a winning combination in my view.

I am curious as to what you make of the 9th Admendment - "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people". Are you not construing exactly that?

Posted by: Annoying Old Guy at February 15, 2003 8:37 AM

When the Bill of Rights was proposed, in return for the ratification votes of several states nervous about a powerful central government, the main argument against it was that it was unnecessary. The federal government was a government of limited, enumerated powers and, consequently, couldn't abridge speech, take property without compensation, etc. Moreover, went this argument, adding certain enumerated rights would suggest, by negative implication, that those were the only protected rights.

The ninth and tenth amendments were meant to address this argument.

In a remarkably sensible, almost inexplicable, exercise of good sense, the court's have always shied away from deciding what these amendments mean, or using them to limit governmental power. Because the two amendments are contentless, decisions made under them would, first, establish a judgeocracy that would trump any democratic power and, second and ironically, once again expand the power of the national government to the detriment of the states and the people.

By the way, in these amendments, "the people" should not be read as meaning individuals, but rather the power of the majority, expressed democratically, to exercise sovereign power.

Having said all that, AOG, I agree wholeheartedly with your point that we shouldn't have unenforced laws on the books just to send a message.

Posted by: David Cohen at February 15, 2003 9:20 AM


It's my understanding that the point of the 9th Amendment was precisely that those laws that States had prior to adoption of a federal constitution would not be affected where the constitution was silent.

States had such laws. The constitution is silent about them. It can not at this late date be said to overturn them.

Posted by: oj at February 15, 2003 9:47 AM


"... we support keeping them, as an appropriate expression of community morality ..."

I think it extremely likely that the vast majority of homosexuals are born that way. Therefore, their homosexuality is not a matter of choice. If it isn't a matter of choice, how can it be a matter of morality? In terms of logic, your assertion is a category mistake.

That aside, you have to make the case that private, consenual, conduct (see, for example, private vs. public intoxication) represents a threat to community morality.

I'm also with AOG on laws: their purpose is to provide a basis for administering justice, not to send signals.


Jeff Guinn

Posted by: Jeff Guinn at February 15, 2003 11:04 AM


First of all I don't believe they're born that way. Second, even if they are, they have the choice of not acting on their orientation. Third, the point is it would be perfectly just to enforce our morality, but it is more humane not to.

Posted by: oj at February 15, 2003 11:11 AM


My brother is gay, and clearly born that way. Through him I have known a fair number of homosexuals, and they have all said they knew their romantic attractions was to other males at about the same time I knew mine was to women--about 6 yrs old.

Given the tools women have at their disposal to keep us hooked, and the societal disincentives to homosexuality, what would cause anyone to choose homosexuality?

they have the choice of not acting on their orientation

Why should they?


Posted by: Jeff Guinn at February 15, 2003 11:06 PM


I disagree. I think it's nurture.

I believe men choose homosexuality out of a psuchological need to dominate or be dominated by other men.

They should choose not to because it's degrading and unhealthy.

That said, as long as they keep their behavior private and don't seek political rights and societal approval, I'm relatively okay with it.

Posted by: oj at February 16, 2003 8:30 AM