Extra Ordinary Ideas

Sex, Privacy and Fairness

Stories like this make me proud to be a market liberal. The Cato Institute and the Institute for Justice, two market liberal groups variously described as “conservative” and “libertarian” by the media (though more accurately the latter), have filed briefs in the U.S. Supreme Court challenging the constitutionality of a Texas law prohibiting consensual adult homosexual sodomy. Argument in the case will be held on March 26th.

Unlike the statute upheld in the 1986 case of Bowers v. Hardwick, the Texas statute facially discriminates against same-sex couples. Prohibited conduct includes both oral sex and what we traditionally think of as “sodomy.” But the law does not prohibit either activity between persons of the opposite sex. The exact same conduct is either legal or illegal under Texas law depending on the gender of the person engaging in it.

Now, the primary argument against the constitutionality of this statute is that it violates the “right to privacy.” Although this right was first formally recognized on the basis of rather poor legal reasoning (the right was held to be “emanating” from the “penumbras” of other rights actually listed in the Bill of Rights), the Ninth Amendment provides a good textural basis for recognizing constitutional rights not explicitly listed, but nonetheless indispensable to a free and just society.

Conservatives have long spurned the idea of a right to privacy because it forms the basis of the Court’s abortion jurisprudence. But whether or not the right should extend to all abortion decisions, conservatives and libertarians who favor limits on state control over family life – including parenting and educational decisions as well as sexual intimacy – ought to favor a strong privacy right. If the Court decides to strike down the Texas statute based on privacy, it will probably have to overturn its earlier decision in Bowers.

Even more interesting is a secondary argument on which Cato and IJ rely. Both groups argue that the law violates equal protection guarantees by discriminating based on the gender of the person committing the act. For example, Mr. A can be convicted for providing oral sex to Mr. B, while Ms. C can do the exact same thing without violating Texas law. Thus, although the law may not have the “purpose” of discriminating based on gender (it does, of course, have the mean-spirited purpose of discriminating based on sexual orientation), it does have that effect, and thus can’t be upheld unless narrowly tailored to further an important, legitimate government purpose. If the Court strikes down the statute based on this reasoning, marriage laws that now prohibit same sex unions might easily be next.

The NYT interviewed an attorney for the American Center for Law and Justice, a Pat Robertson-affiliated conservative group that filed a brief urging the Court to uphold the Texas law. The lawyer’s quotes make him sound frankly embarrassed by his own position, characterizing the matter as a “tough case, one that we approached with reluctance.” He acknowledged the Cato and IJ efforts as revealing “a diversity of opinion among our side.”

Presumably, by “our side” this attorney meant a loose coalition that broadly favors limited government and familial autonomy. If so, he should be embarrassed. This statute is unfair, malicious, and most of all intrusive. In ten years, the coalition to which he refers will regret that it was ever divided on such an issue.

Posted by Marie Gryphon on March 19, 2003