Courting Disaster

How secure is freedom in America? On the eve of the 200th anniversary of our Constitution, the U.S. Supreme Court has decided, in Bowers vs. Hardwick, that any American can be prosecuted under a statute providing a maximum penalty of 20 years in prison for engaging in "any sexual act involving the sex organs of one person and the mouth or anus of another." Neither married couples nor any other consenting adults have a "fundamental right" to have oral (continued on page 238)Courting Disaster(continued from page 171) or anal sex in the darkness of their bedrooms.

We must ask why the Court believes government has any power to intrude on private sexual activity, how it thinks government can hope to control sexual relations and what purpose government can have in telling its people how to have sex. The Bowers decision is so remote from the real world we know that there is a tendency not to take it seriously. What is more basic to human nature than the sex drive? What social activity has been more universally engaged in? What form of conduct are we least likely to be able to suppress? What do five members of the U.S. Supreme Court think they are doing? The Georgia statute upheld in Bowers had not been enforced for decades. It is very easy to underestimate the threat to freedom that this dangerous ruling represents.

Our understanding of freedom changes with the times. Optimists call this progress. Were it otherwise, we would have few rights. Jim Crow laws could still be enforced by the police. People could be executed for minor crimes. Discrimination against women and other groups could be the law of the land. The poor could be convicted of crimes without having a lawyer to represent them, then denied the right to appeal because they could not pay its costs.

This evolution of our understanding of freedom makes it all the more difficult to believe that in 1986, the Supreme Court could tell American adults that they could be imprisoned for private, consensual sex acts. Social-science studies inform us that tens of millions of Americans regularly choose to engage in conduct outlawed by Bowers. Art, literature, film, popular magazines and prevalent behavior patterns all demonstrate how deeply ingrained in our culture such conduct is. Millions of homosexuals have made public their sexual preference and have been widely accepted throughout society. Some have been elected to political office.

American law began the slow evolution of a right to privacy at the turn of this century. The Supreme Court itself, in a series of cases going back over the past two decades, established rights to privacy that would protect the right of adults to engage in sex as they chose. In 1965, the Court held in Griswold vs. Connecticut that a constitutional right of privacy permitted married people to use contraceptives. There were only two dissents to this Warren Court decision. Four years later, a unanimous Warren Court, in Stanley vs. Georgia, held that people's right to view obscene films in their own homes was protected by the First and 14th amendments.

In 1972, Warren Burger, as Chief Justice, dissented in Eisenstadt vs. Baird. The majority in that case declared unconstitutional a Massachusetts statute making it a crime for anyone except physicians or pharmacists to provide contraceptive drugs or articles, which could be used by only married people. Two Nixon appointees, Justices Lewis Powell and William Rehnquist, did not participate in the decision, and a third, Harry Blackmun, joined by Kennedy appointee Byron White, avoided the constitutional issue by observing that the trial record did not disclose whether or not the recipient of the contraceptive supplied by the defendant was married.

The following year, in Roe vs. Wade, the Court held that a woman has a right to secure an abortion during the first three months of a pregnancy; that from the third month until the fetus is viable, the state may regulate abortions to ensure maternal health, but after a fetus is viable, it may prohibit abortions except when necessary to protect the life or health of the mother. Chief Justice Burger concurred on narrow legal grounds, adding that he would uphold a statute requiring certification by two physicians that an abortion was necessary to protect the woman's life or health, justice Rehnquist vigorously dissented, as did Justice White.

These decisions--particularly Roe-- were caught up in a wave of public controversy. Political figures such as Ronald Reagan and a new generation of fundamentalist religious leaders, such as Jerry Falwell, crusaded for the reversal of Warren Court cases and some subsequent Supreme Court decisions on pornography, abortion, separation of church and state, poverty law, civil liberties and civil rights.

The national mood has changed, and these social issues, as they are called, are now prominent features of public discussion and national election campaigns. President Reagan, who talks so fervently of getting government off our backs, ardently supports the use of criminal sanctions to stop abortions and prohibit pornography, while promoting judicial appointees who are committed to his views. In this context, we can measure whether or to what degree the Supreme Court "follows the illiction returns."

Chief Justice Burger, while joining the majority that upheld the Georgia sodomy statute in Bowers vs. Hardwick, wrote by far the most revealing opinion. In his opening sentence, he was compelled to say that "in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy." He observed, "Condemnation of those practices is firmly rooted in Judaeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law." He relished quotes calling homosexuality "the infamous crime against nature," "an offense of 'deeper malignity' than rape," "an heinous act 'the very mention of which is a disgrace to human nature' " and "a crime not fit to be named." He wrote that to hold that "homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." Burger did not cite a single provision of the Constitution or decision of the Supreme Court or any other American court but merely manifested his deep personal revulsion to homosexual conduct.

The majority opinion was written by Byron White. Chief Justice--designate Rehnquist and Sandra Day O'Connor (the first woman to sit on the Court that told her grandmother's generation that women had no right to be lawyers) avoided the heat of controversy by silently joining in White's opinion. White immediately restricted the scope of his opinion to homosexual sodomy, declining to express an opinion on other acts of sodomy. The dissenters accurately observed that the rationale of his opinion applied equally to married parties and to acts between the sexes in general. White observed that he was not considering the wisdom or the desirability of the sodomy laws and added that the state legislatures might repeal those criminal statutes whenever they chose. He declared himself, however, "quite unwilling" to "announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy." Then, in seven short paragraphs, he upheld a statute that would send a man or a woman to the penitentiary for 20 years for a private, consensual oral or anal sex act. Resorting to what is called strict construction of the Constitution, he wrote, "The Court...comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." He added that to claim that "such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."

Justice White observed that much "victimless" conduct committed in the home is illegal, such as possession of drugs, unlicensed firearms or stolen goods. He found no way to distinguish criminal statutes that prohibit adultery, incest and other sexual crimes, relying on the ancient origins of the remaining sodomy statutes and the democratic processes by which 24 states and the District of Columbia enacted them.

None of his arguments addressed the real issues. Chief Justice John Marshall effectively answered the strict-construction argument in 1819, when he wrote, "We must never forget that it is a Constitution we are expounding...a Constitution intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs." Justice Benjamin Cardozo told us that "the great generalities of the Constitution have a content and a significance that vary from age to age.... A constitution states...principles for an expanding future." Justice Felix Frankfurter wrote, "The Constitution of the United States is not a printed finality but a dynamic process."

Let's put this in historical context. Most of the founding fathers owned slaves. In 1857, the Supreme Court--in Dred Scott vs. Sandford, the most tragic case in our history, requiring nine individual opinions--held that black persons could not sue in the courts because they were "beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man [is] bound to respect."

Having thus decided the race question for America, the Court, after the Civil War that was required to overrule Dred Scott, put women in their place. In Bradwell vs. Illinois, the Court ruled that women had no right to practice law. Why? Because

the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to...womanhood. The harmony...of...the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.... In the common law...it became a maxim...that a woman had no legal existence separate from her husband.... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.

We are inclined to dismiss such awful decisions as remote, even quaint aberrations. We are confident that contemporary knowledge, reason, understanding and values make similar Court holdings impossible today. Those who persevere in the struggle for freedom, equality and social justice for minorities--and some majorities, including women--remain painfully aware of how little has been accomplished and how fragile past achievements are.

Justice Blackmun wrote a powerful dissent in Bowers vs. Hardwick, in which he was joined by Justices William Brennan, Thur-good Marshall and John Paul Stevens. He questioned the "haste to reverse" and the "almost obsessive focus on homosexual activity" of the majority. The dissenters showed that by its plain words, the Georgia statute did not distinguish between homosexual and heterosexual or married and unmarried conduct and cited Holmes's proposition that it is "revolting to have no better reason" for a law than that "it was laid down in the time of Henry IV" and "still more revolting" if the basis for the law has long since vanished but the rule "persists from blind imitation of the past."

The first purpose of the dissent was to identify the real issue in the case as the right to privacy. This is "the right to be let alone, the most comprehensive of rights and the right most valued by civilized men," as Justice Louis Brandeis characterized it. The dissent then went on to demonstrate that conduct protected under the privacy right is not limited by ideological, demographic, political or religious preference. It is protected because it is "so central a part of an individual life." Such conduct, even if some may view it as odd or erratic, cannot be prohibited where it does not interfere with the rights or interests of others. The dissent then showed sexual conduct to have been recognized by the Court as a "central part of an individual life.... Only the most willful blindness could obscure the fact that sexual intimacy is 'a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.' "

Anticipating that the majority rule would be reversed, Justice Blackmun concluded "that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our nation's history than tolerance of nonconformity could ever do."

Justice Stevens added a dissenting opinion to make clear his view that the Georgia statute, as written, applied to heterosexual conduct (including that of married couples) as much as to homosexual conduct and was clearly unconstitutional. He then showed that Georgia had legislated that "all sodomy is immoral and unacceptable" and there could be no basis for selective application of the statute to homosexuals.

The majority profoundly misunderstood the Constitution. It ignored and misread its own precedents. It assumed a role for the Supreme Court that through our history has repeatedly resulted in damage to its image and the rule of law. It exposed a tin ear to all but the political preferences of a President of its own age. For several of the Justices, this decision may have been one for the Gipper. The Court ruled as if it had no awareness of the social realities of the society it serves, thus defying the nature of law. It proclaimed a rule impossible to enforce, necessarily a corruption of law. It gave police and political leadership a dangerous tool for persecution of selected enemies. It raised fundamental questions about the capacity of law to proceed by just and rational principles. In human terms, it exposed the ugly face of prejudice, pathetically failing to acknowledge our common humanity, afraid of human qualities not alien to any of us. It believed that by its invocation of mystery, miracle and authority, it could coerce conformity.

It is critically important to the integrity of constitutional government that this aberrant decision be overruled. Surely it will be, and soon.

But we should not ignore the larger significance of a government's desire to control the sexual activity of its citizens. George Orwell offers a primer on the subject with 1984.

In that novel, the Party, led by Big Brother, formed the Junior Anti-Sex League, which advocated complete celibacy. It looked to the day when all births would result from artificial insemination, called artsem in Newspeak, the state language. It wanted to remove all pleasure from the sexual act and to destroy eroticism. Its goal was for "sexual intercourse to be looked on as a slightly disgusting minor operation, like having an enema."

The state police worked constantly to create conditions that would further the Party's aims. Winston Smith was terrified to look at or speak with Julia where they could be seen or heard. He knew it was "shocking folly" to read a note from her in the public toilet, because there was "no place...more certain that the telescreens were watching continuously."

Smith came to realize that "the animal instinct, the simple undifferentiated desire...would tear the Party to pieces." He came to hate purity and goodness as decreed by the Party and wanted everyone to be "corrupt to the bones." He realized that "pure love or pure lust" was no longer possible, because both were "mixed up with fear and hatred."

The Party wanted to crush sex as a foremost enemy of its power not only because it led to loyalties other than to Big Brother and "created a world of its own...outside the Party's control" but because it realized that "sexual privation induced hysteria, which...could be transformed into war fever and leader worship."

The role of these factors in President Reagan's determination to have government control the bodies of women who want abortions, to identify the state with fundamentalist religion, to have his Attorney General form a commission on pornography is clear. In our time of pervasive insecurity, government efforts to control sex are a present danger. Our freedom, even our survival, may depend on the courage and effectiveness of our resistance.

I hope, in these most turbulent times, that Americans will join with Emily Dickinson in believing that "the Soul selects her own Society, then shuts the Door. To her Divine Majority, Present no more," and will act on that belief.

"It is very easy to underestimate the threat to freedom that this dangerous ruling represents."