Ask 100 Americans today if the state has a right to make
laws about their consensual sexual behavior, 99 will adamantly say, “No!”
But public attitudes have changed a lot in 30 years. In the
mid-1980s, a “family values” conservative named Michael Bowers was Georgia’s Attorney
General. To score points with some evangelical Christians, he took up an oral
sex case that Atlanta prosecutors dropped.
Police went to Michael Hardwick’s apartment to serve a
warrant for a minor alcohol violation—and Hardwick’s roommate made a fateful
mistake by inviting the police in. There, they found Hardwick engaged in oral
sex with a consenting man. Hardwick got mad; so the police cited him for “criminal
sodomy.” At that time, Georgia and dozens of states had 1800s-era sex laws on
the books. Most of these laws made oral and anal sex criminal offenses.
Throughout the 1900s, almost no one enforced these laws in cases of lawful consent.
Bowers wanted to push the case, to play to his base—and he
won in a 5-4 ruling before the Supreme Court.
In 2003, the Supreme Court overturned Bowers v. Hardwick.
The case was Lawrence v. Texas. Justice Anthony Kennedy wrote the majority
opinion. He said that intimate, adult consensual conduct is protected by the
Constitution.
Justice Scalia wrote an angry and morally indignant dissent:
He wrote that (quoting below):
Today's opinion is the product of a
Court, which is the product of a law-profession culture, that has largely
signed on to the so-called homosexual agenda, by which I mean the agenda
promoted by some homosexual activists directed at eliminating the moral
opprobrium that has traditionally attached to homosexual conduct.... [T]he Court
has taken sides in the culture war, departing from its role of assuring, as
neutral observer, that the democratic rules of engagement are observed.
Why does this matter today? Because Judge Neil Gorsuch has
expressed support for Justice Scalia’s position. He will almost certainly be
asked to comment on this passage.
He has two choices.
Answer No. 1: Lawrence v. Texas is settled law. I would have
voted differently in that case; but it is a precedent the Court must now follow.
Or, Answer No. 2: [Some type of equivocation, such as I
cannot answer about a hypothetical case that is not before me.]
If he answers with the latter, the Michael Bowers of the
world will propose new sodomy laws. These laws, by the way, apply to heterosexuals—but
the laws are never enforced against a male-female couple.
Even Donald Trump has a constitutional right to a golden
shower in the privacy of his room. Here’s a silver lining: The Cato Institute—a
powerful libertarian think tank— has already spoken out against the Trump
Muslim ban. They believe it tramples on freedom with its extreme overbreadth. Cato
has a strong aversion to government intervention in people’s lives. They found
the ACA a terrible intrusion on freedom, and they’d react the same way to newly
enacted sodomy laws. In short, the libertarians and liberals would be in a
strong alliance to fight this turning-back of the constitutional clock.
Here’s hoping Judge Gorsuch picks Answer No. 1!
PS: What happened to Attorney General Michael Bowers after
he won his case? He was involved in a decade-long extra-marital affair with his
employee and secretary, a former Playboy Club waitress. The Atlanta news media
made a big deal of his hypocrisy. The revelation put an end to his run for
governor.
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