High Court Battle Over Sex and Privacy

April 29, 2003 -- When the bedroom door is closed, does the government have to keep out?

When applied to gay couples, the question has provoked a political furor and a landmark legal battle is now before the Supreme Court. At issue is whether the government can outlaw what some citizens do in the privacy of their own homes.

"It's really about equality. What does it mean to be an equal citizen in this country?" says Jack Balkin, a Yale Law School professor. "Part of it is the right to love who you want to love."

Those on the other side of the issue agree that the fundamental issues are at stake.

"The idea of a society with an anything-goes sexuality is unprecedented," said Scott Lively, director of the Pro-Family Law Center in Citrus Heights, Calif., warning of "deep social problems" if gay rights are upheld.

Sen. Rick Santorum, R-Pa., stirred up the debate last week, ahead of the Supreme Court ruling, by saying sex between two men was not constitutionally protected and was harmful to society.

"If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything," Santorum said. "Does that undermine the fabric of our society? I would argue yes, it does."

His remarks drew fire from Democrats, gay rights advocates, and some members of his own party, but he was also applauded by several conservative groups.

Sen. Olympia Snowe, R-Maine, said she believed Santorum's "unfortunate remarks undermine Republican principles of inclusion and opportunity."

"I find it personally offensive, and I think there are lots of moderate, moderate Americans across the country who do find it offensive," said Mike Stara, the state president for the Pennsylvania Log Cabin Republicans club, an advocacy group for Gay Republicans.

David Smith of the Human Rights Campaign, a gay rights group, said Santorum's comments reflected prejudice.

"He clearly is anti-gay and he's expressed these views, they're anti-gay at their core."

"The Human Rights Campaign's attack on Sen. Santorum, a champion of the family, is intended to intimidate defenders of marriage and silence critics of the homosexual political agenda," said Family Research Council President Ken Connor in a statement on the group's Web site.

High Court Revisits Issue of Gay Sex

In making his comments, Santorum stepped into a heated battle currently before the Supreme Court. As Santorum and his supporters noted, the Supreme Court, in the 1986 case Bowers vs. Hardwick, rejected the idea that the Constitution protects the right of gay couples to have sex.

"That is the law of the land … [T]he Supreme Court in a majority opinion said that. I simply repeated that," he said, defending his comments at a town meeting in Williamsport, Pa., last Wednesday.

But the justices will soon rule on a similar case that may upset that precedent.

The high court is expected to rule in the coming weeks or month on Lawrence vs. Texas, a case challenging a Texas law prohibiting gay sex.

In the case, a disgruntled neighbor placed a phony emergency call to police, saying he'd heard gunshots from John Geddes Lawrence's apartment. When officers arrived and forced open the door, they found the two men having sex. The neighbor was later charged with making a false report.

Many legal experts expect the court to now throw out the Texas law. The 1986 Bowers case was decided by a razor-thin 5-4 vote, and one justice later said publicly he erred by voting with the majority. Only three of the nine justices who decided the case are still on the bench.

Because the Texas law prohibits only homosexual sodomy — and not sodomy between men and women — court watchers think the justices will likely cite equal protection grounds in overturning it. Gay rights advocates believe such a decision would pave the way for overturning the Bowers decision entirely.

What’s Private?

Conservative activists argue the government has the right to forbid behavior that harms society and that privacy and equality guarantees are not applicable.

"There is no constitutional right to homosexual sodomy," said Lively, director of the Pro-Family Law Center.

Santorum and his supporters insist the government has the authority and responsibility to prohibit activities that are harmful to society, even if they occur in private.

"If you make the case that if you can do whatever you want to do, as long as it's in the privacy of your own home, this 'right to privacy,' then why be surprised that people are doing things that are deviant within their own home?" Santorum asked in an interview with The Associated Press.

"If you say, 'There is no deviant as long as it's private, as long as it's consensual,' then don't be surprised what you get."

Civil liberties and gay rights advocates counter that laws against consensual sex between gay couples violate constitutional guarantees to privacy and equality.

The Constitution does not explicitly mention the right to privacy, but the Fourth Amendment forbids searching people or property without probable cause, and the Supreme Court has repeatedly ruled that a right to privacy is implied.

The Court in recent decades has cited the right to privacy in striking down several laws restricting sexual behavior. In Griswold vs. Connecticut, the justices ruled the government couldn't prohibit married couples from using contraceptives. In Roe vs. Wade the court famously said the right to privacy trumped laws prohibiting abortion.

That right protects intimate behavior in people's bedrooms, constitutional law experts and privacy advocates insist. That right doesn't encompass all sexual activity, but does protect behavior the public understands to be fundamental to people's rights to lead their lives, argues Jack Balkin, a Yale Law School professor.

"What really determines what we regard as essential, fundamental features of sexual autonomy is very much cultural," Balkin said.

He believes popular attitudes in America toward sex, homosexuality, and privacy have changed in recent decades, just as attitudes toward interracial relationships have changed.

"There has been a sustained debate about gay rights," he said. "There has been no such debate about incest and polygamy."

He points to the fact that only 13 states have anti-sodomy laws today, compared to all 50 states four decades ago.

Christopher Pyle, a politics and constitutional law professor at Mount Holyoke College, agrees.

"I think the court is responding to changing mores of society," he said.

Sexual acts that don't harm others have a greater claim to privacy protection, claims George Cochran, a University of Mississippi law professor.

"There's a significant bit of difference between laws prohibiting adultery and homosexual consensual conduct, because there's a third party involved [in adultery]," he said

The Supreme Court may soon have the final say.