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The Supreme Court heard oral arguments on March 26 in Lawrence v. Texas,a case challenging the constitutionality of a state law prohibiting homosexual sodomy. The session was apparently a tough one for Texas. The Court might well strike down the law, though on what basis is anyone’s guess. There is not much doubt that, for the left, this is great news. But what ought conservatives and libertarians think about the predicted demise of Texas’ law? A law like Texas’ actually raises three related but distinct questions: (1) Is homosexual sodomy wrong? (2) Should states make homosexual sodomy illegal? And (3) is it unconstitutional for states to make homosexual sodomy illegal? The answers to the first and third questions are easy, at least for me; the answer to the second question is not. Presumably anyone who thinks homosexual sodomy is acceptable behavior would not want to make it illegal, and no one who thinks that laws banning homosexual sodomy are unconstitutional would be in favor of states passing them. But in other respects, the three questions are indeed distinct. That is, some who think that homosexual sodomy is wrong might favor a state law banning it, but some might not; and some who oppose such laws might nonetheless think they are constitutional, but some might not. This is particularly true among libertarians and conservatives. Libertarians, of all people, recognize that the immorality of an act doesn’t necessarily mean it should be legally prohibited. And conservatives are the most likely to recognize that just because a statute is unwise doesn’t mean it is unconstitutional. NOT THIS AMENDMENT The latter point — answering my Question 3 — can be made quickly in Lawrence.Is a law prohibiting homosexual sodomy inconsistent with the text — or the logic, structure, or original understanding — of the Constitution? It seems very unlikely that the framers of the 14th Amendment were, in 1868, inadvertently passing a gay rights bill. Indeed, I have read it quite carefully and will attest that there is nothing in the amendment that has any remote bearing on either anal or oral sex, which are the twin foci of the Texas law. So the Supreme Court ought to uphold the constitutionality of Texas’ statute. Simple enough. But — regarding my first question — is gay sex wrong in the first place? These days, it is politically incorrect enough to think that homosexual behavior is wrong, let alone that it ought to be illegal. This reflects a transformation that has taken place with astonishing speed. Not so very long ago, a member of Congress revealed to be a homosexual would have been politically dead. Now, one who uses an anti-gay epithet would be, if not quite looking for a new job, at least very embarrassed. Today, the public debate is about whether homosexuals have a right to be publicly married, not about whether their sexual conduct ought to be illegal. This shift in social attitudes is, apparently, obvious on the Supreme Court, too. One veteran Court-watcher noted that the justices spoke of homosexuality much more “respectfully” this time around than they did when a similar case, Bowers v. Hardwick,was argued in 1986. And yet I suspect that most Americans still believe that there is something wrong with gay sodomy. Why should this be? My own reason for believing homosexual behavior to be wrong is because the Bible says so, which gives me the luxury of not having to say much more than that. I suspect that religion is at the root of most Americans’ rejection of homosexuality. And I am with Dostoevsky in having a hard time seeing how, without God, anything — including theft, rape, and cold-blooded murder — is wrong. (The same religious beliefs, incidentally, also make it wrong, in my view, to be cruel to gays, to taunt them, to hate them: Love the sinner, hate only the sin.) But oughtn’t we to have a secular reason for wanting to pass a law against something, and are there nonreligious reasons for thinking that homosexual behavior is wrong? Neither is an easy call, which is what makes answering my second question so difficult. HARM TO OTHERS? At the oral argument in Lawrence,Justice Stephen Breyer asked, “Why isn’t that [i.e., homosexual conduct] something that the state has no business in?” Justice David Souter asserted that the Texas law must be justified by more than “moral judgment.” He said, “There has to be harm to others.” That is not correct as a constitutional matter. But perhaps he’s at least right as a matter of policy. Or is he? Suppose a state has a law against cruelty to animals. No other human being is hurt when someone tortures a puppy, so is there no justification for the law? On the other hand, I would agree with Justice Souter insofar as a law prohibiting anyone from eating pork sounds suspiciously like an attempt to smuggle religious dogma into the state code. That’s especially so if no one can come up with a reason for the prohibition that isn’t in the Torah or Koran. Let’s assume it’s true that, before we ban behavior, it ought to be not only wrong but also socially harmful in some way. The best I can come up with for Texas is an argument that there is a correlation between the wholesale toleration (and facilitation) of immoral sexual conduct — homosexual, heterosexual, pansexual, or what have you — and various kinds of antisocial behavior, such as the breakdown of families, substance abuse, willful or negligent transmission of sexually transmitted diseases, and sex crimes. Is that enough? Or look at it this way: One could see that widespread homosexual behavior might be bad for families and society in the same way that widespread adultery is. Ought either one to be illegal? Both frequently are. Adultery is probably worse for families and for society than homosexuality. So if the case cannot be made for making adultery illegal, then the case probably can’t be made for a ban on homosexuality either. I don’t want — I don’t think anyone wants — a society in which the police are breaking down doors and tapping telephones in their zeal to end adultery, or surveilling, arresting, and leading off in handcuffs adulterers. But there is still a benefit to have laws on the books that reflect and reinforce society’s rejection of adultery as immoral and antisocial. That’s true even if we aren’t very energetic about enforcing the laws. Certainly the government shouldn’t be discouraging private actors from stigmatizing immoral sexual conduct. For instance, it shouldn’t make it illegal for hotels or private employers to discriminate against adulterers or homosexuals. A true-blue libertarian would likely oppose anti-sodomy laws like Texas’, but she would also oppose laws that would ban private employers from discriminating on the basis of sexual orientation. Such laws would not get the government out of the business of judging people’s sexual attitudes, but would instead put it intothis business. The only difference is that the Texas law makes it illegal to engage in private behavior that is gay, and anti-discrimination laws make it illegal to engage in private behavior that is anti-gay. RIGHTS VS. RIGHTS Which is to say: Who wants to make private behavior by an adult illegal — those supporting anti-discrimination laws or those opposing them? And who wants to use the government to force people to act against deeply held personal beliefs? It is, of course, the proponentsof anti-discrimination laws who want to make private behavior illegal. The private behavior is the exercise of one’s freedom of association and control of one’s own property to refuse to hire homosexuals. This is not to say that the government should allow private actors to assault gays, but it ought to allow private actors to fire them or not hire them. And having anti-adultery and anti-sodomy laws on the books is another way that society can send the message that this kind of sexual behavior is disfavored, even if it is unlikely to land you in jail. Conversely, if we repeal such laws, we are inevitably sending the message that adultery (or homosexuality) isn’t so bad. It would be even worse if the courts were to declare that adultery and sodomy are “constitutional rights.” It seems likely to be the case that homosexuality and heterosexual promiscuity are sometimes hard-wired in individuals, but sometimes chosen, and sometimes a combination of the two (an inclination that can be followed or not). If so, then the stigmatization of homosexuality and adultery — including their illegalization — should result in less of them. Conversely, however, it might be argued that, since homosexuals will always be a relatively small minority and since a distaste for gay sex is itself hard-wired in most people, it is inevitable that homosexuals will be stigmatized, and so it is unnecessary to have laws on the books for that purpose. It might also be argued that it is a bad idea to have statutes we don’t intend to enforce, since this dilutes the stigma that ought to attach to breaking the law. Both sides of the illegalization argument have good points. But it would be a cop-out for me not to reach a bottom line. So here’s where I come out on the three questions posed at the outset: Homosexual sodomy is morally wrong and socially undesirable. Nonetheless, I would vote against a law banning it, even though I would also not vote for repealing one already on the books. (And I would also oppose vigorous enforcement of any statutes banning homosexual sodomy; at the same time, I would definitely not vote for a law that makes it illegal for private actors to discriminate against homosexuals in employment, housing, and so forth.) And let’s hope that the justices don’t forget the easy answer to the easy question that they are pondering: Laws prohibiting homosexual sodomy are not unconstitutional. Roger Clegg is general counsel of the Center for Equal Opportunity, a Sterling, Va.-based think tank. Clegg can be reached at [email protected] ceousa.org. His column appears bimonthly inLegal Times .

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