Skip to comments.Anti-sodomy laws violate individual liberties
Posted on 05/11/2003 7:04:33 AM PDT by RJCogburn
IN AN April 30 essay titled "The Libertarian Question," my fellow National Review Online contributing editor Stanley Kurtz argues that laws against sodomy, adultery and incest should remain on the books largely to protect the institution of heterosexual marriage.
By stigmatizing sexual relations outside that institution, Kurtz believes "the taboo on non-marital and non-reproductive sexuality helps to cement marital unions, and helps prevent acts of adultery that would tear those unions apart."
Kurtz also states that keeping adult incest illegal will reduce the odds of sex between adults and their minor relatives. Anti-pedophilia laws, virtually everyone agrees, should be energetically enforced, whether or not the child molesters and their victims are family members.
But Kurtz overlooks the fact that anti-sodomy laws can throw adults in jail for having consensual sex. Approval or disapproval of homosexual, adulterous or incestuous behavior among those over 18 is not the issue. Americans should remain free to applaud such acts or, conversely, denounce them as mortal sins. The public policy question at hand is whether American adults should or should not be handcuffed and thrown behind bars for copulating with people of the same sex, beyond their own marriages or within their bloodlines.
If this sounds like hyperbole, consider the case of Lawrence and Garner v. Texas, currently before the Supreme Court.
On Sept. 17, 1998, Harris County sheriffs deputies responded to a phony complaint from Roger Nance, a disgruntled neighbor of John Geddes Lawrence, then 55. They entered an unlocked door to Lawrence's eighth-floor Houston apartment looking for an armed gunman. While no such intruder existed, they did discover Lawrence having sex with another man named Tyron Garner, then 31.
"The police dragged them from Mr. Lawrence's home in their underwear," says Brian Chase, a staff attorney with the Dallas office of the Lambda Legal Defense Fund (www.lambdalegal.org) which argued on the gentlemen's behalf before the Supreme Court. "They were put in jail for 24 hours. As a result of their conviction, they would have to register as sex offenders in Idaho, Louisiana, Mississippi and South Carolina. If this arrest had taken place in Oklahoma, they could have faced 10 years in prison. It's kind of frightening." Lawrence and Garner were fined $200 each plus $141.25 in court costs.
Ironically, Chase adds by phone, "At the time the Texas penal code was revised in 1972, heterosexual sodomy was removed as a criminal offense, as was bestiality."
Even though some conservatives want government to discourage non-procreative sex, those Houston sheriff's deputies could not have apprehended a husband and wife engaged in non-reproductive oral or anal sex (although married, heterosexual couples still can be prosecuted for the same acts in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia). And were Lawrence caught naked in bed with a Rottweiler, consenting or otherwise, the sheriffs could not have done more than suggest he pick on someone his own species. However, because Lawrence preferred the company of a willing, adult human being of his same sex, both were shuttled to the hoosegow.
"The point is, this could happen to anyone," Chase says. "This was the result of a malicious prank call made by a neighbor who was later arrested and jailed for 15 days for filing a false report."
As for grownups who lure children into acts of homosexuality, adultery and incest, the perpetrators cannot be imprisoned quickly enough. The moment members of the North American Man-Boy Love Association go beyond discussion of pedophilia to actions in pursuit thereof, someone should call 911 and throw into squad cars the men who seek intimate contact with males under 18. Period.
The libertarian question remains before Stanley Kurtz and the Supreme Court. Should laws against adult homosexuality, adultery and incest potentially place taxpaying Americans over 18 behind bars for such behavior? Priests, ministers, rabbis and other moral leaders may decry these activities. But no matter how much people may frown upon these sexual appetites, consenting American adults should not face incarceration for yielding to such temptations.
Here is the libertarian answer to this burning question: Things deemed distasteful should not always be illegal. This response is one that every freedom-loving American should embrace.
Wasn't there something about Lot, that 'virtuous' man, offering his daughters to visitors to use for sex? I guess God doesn't want us to have laws against procuring.
Laws against sodomy do nothing to protect marriage. As many married people commit sodomy as single people, so the cause and effect is specious.
Laws regarding incest exist to protect the overall gene pool, since children resulting from incestuous conception often magnify genetic defects that would be diluted from conception outside the bloodline. These laws have no effect on marriage, nor were they ever designed to.
The only laws dealing directly with heterosexual marriage are those regarding adultery, which, by definition, only exists outside marriage and can thus be considered a direct threat to the institution. Yet few states have laws against adultery any more, and the few that do enforce them so irregularly (if at all) as to render them moot.
God's laws, not the state's, should govern morality.
Laws against murder violate my individual liberties when I commute on the expressway every day.
Laws against Bank Robbery violate my individual liberty when I want money for free.
However, if I relabel "Sodomy" as "Sex", "Murder", as "Self-Expression", and "Bank Robbery" as "Do-it-yourself Withdrawal",I suppose I could make a case of the Law making me a victim.
Hell, anti-anything laws violate individual liberties.
By definition fercryingout loud!
Anti-murder laws violate individual liberties.
Anti-pedophilia laws violate individual liberties.
Anti-robbery laws violate individual liberties.
Anti-mugging laws violate individual liberties.
Anti-embezzlement laws violate individual liberties.
Anti-smoking laws violate individual liberties.
Anti-Second-Amendment laws violate individual liberties.
The perverts perhaps are getting a glimpse (finally!) of the point that Santorum was trying to make?
Am I the only one who sees the moronic and perverse (and pervert) logic in these two sentences?
Unfortunately, since criminal laws do exist by the Social Contract and common consent, the extent to which they apply to certain criminals that you have sympathy for creates a dilemma, doesn't it.
There are means to remedy that. Selective enforcement or special group dispensation aren't it.
Can you elaborate on that a little? Sorry, I am being dense this morning.
Well said. There is no inequality, no discrimination in the law at all. They are free to marry and have morally-licit relations if they want to. There are only two sexes, not four or six or eight.
No, why should I?
I would rather remain on-topic.
We are having this discussion because the article would elevate the status of the criminal to that of a victim.
Your tortured logic would have me do the same.