From The National Law Journal, January 18, 1999, p. A-25.

David M. Skover

As the new millenium nears, Louisiana and Texas are busy turning back the cultural clocks. The powers of officialdom are determined to stamp out "crimes against nature."

Louisiana and Texas are among the 19 states that forbid consenting adults from engaging in sodomy (which includes oral sex). Such acts are criminal, such laws are constitutional, and that is that, say the Southern sex regulators. Astonishing as such Orwellian moralism is, what is surprising is the double-speak liberals must use to contest it -- circuitously, by closet constitutionalism.

In October 1998, in Louisiana Electorate of Gays and Lesbians Inc. v. Louisiana, Case No. 94-9260 (Civil District Court, Parish of Orleans, filed 1992), America's Mardi-Gras capital witnessed such a constitutional challenge to a Louisiana felony statute. The law prohibits "unnatural carnal copulation" -- heterosexual or homosexual -- between consenting adults anywhere, although it appears to be enforced selectively against the latter. The state attorney general's office is aggressively defending the sodomy law.

By stark contrast, the plaintiffs' attorney, John Rawls, has no patience for alarmism or hypocrisy: "If oral sex were enforced as a five-year felony, everyone from the president to the speaker of the house to your next-door neighbor would have to go to prison."

In Texas, John Lawrence and Tyrone Garner are being criminally prosecuted in Houston under a 119-year-old statute (titled "Homosexual Conduct"), for having consensual adult sex in the supposed privacy of their bedroom. They were handcuffed and hauled off to jail.

No Explicit Freedom for Consensual Sex Acts

Why, at this juncture in modern Western civilization, are such laws still on the books and subject to enforcemen6t?

One notable reason is that neither the U.S. Constitution nor any of the 50 state constitutions explicitly guarantees a basic right to what is a basic part of our everyday lives -- consensual adult sex. Were such a right written into the texts of our constitutions or recognized by our courts, existing sodomy laws would be difficult or impossible to defend.

Explicitly constitutionalize consensual adult sex? Even liberals may find it difficult to mouth the words. For one thing, there is the usual parade of horribles. Constitutionalize consensual sex and you open up Pandora's box of evils--e.g., prostitution, pedophilia, incest, bestiality, necrophilia and so on. Whatever its rhetorical appeal, the logic of that argument fails. If only because we never allow any right to go completely unregulated, even in fundamental rights contexts.

Federal and state courts have long considered individual claims of freedom against compelling and bona fide societal interests, and there should be every expectation that they would do so for a constitutionally mandated right to consensual adult sex.

The Peculiar & Pathetic Approach of Rights "Deflection"

Admittedly, some sexual freedoms have already been pulled, by hook or by crook, into our federal and state constitutions. Procreation, contraceptive use, abortion and homosexual identity are accorded varying degrees of constitutional protection. But without explicit constitutional or judicial recognition of a fundamental right, even these meager aspects of sexuality have had to be portrayed in a non-sexual fashion and filtered through the lens of other rights.

So it is that a right to use contraceptives is portrayed as a "privacy" right. Or the intimacies of gay and lesbian consensual adult sex must be depicted as rights of "free speech" or "freedom of association" or even a right to "voter equality." The moral: Call the sex-right whatever you must, but never call it what it is.

This approach is both peculiar and pathetic. Peculiar because our constitutional grammar must be twisted and distorted in order to encompass sexuality. Thus, sexual freedom is derivative. It stems, in part, from the Third Amendment's freedom from quartering unwanted soldiers and the Fifth Amendment's right against self-incrimination. It is one of these "penumbras" of privacy, as Justice William O. Douglas put it in Griswold v. Connecticut, 381 U.S. 479 (1965).

And it is pathetic because in some parts of America adult men and women must yield to the will of the state in the most intimate matters of personal freedom and can only fight prosecution in indirect ways.

In our popular culture, sex is everywhere. In our constitutional culture, sex is nowhere. It is time to abandon closet constitutionalism and take a stand for a basic freedom -- the freedom of adults to engage in consensual sex.


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