The Supreme Court Hath Spoken

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From the Supreme Court ruling, Lawrence v. Texas, June 26, 2003

Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreative sexual activity more generally, whether between men and women or men and men.

Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. In-stead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals.

The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing “ancient roots,” ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution.

Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated.

The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850.

The Nation’s laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.

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Clayton E. Cramer - 7/11/2003

Go to the discussion at
The brief is simply wrong on many of its claims. Homosexual sodomy was specifically prohibited in at least two colonies; it was not treated the same as other forms of non-procreative sex, being prohibited in separate statutes.

Some of the claims in the brief are hard to believe--such as a guy openly soliciting other men for sex in 1677 Wethersfield, Connecticut for forty years without consequences. It was a capital offense, and a sin, in one of the most vigorously Puritan colonies. When I looked up information about the person in question, he didn't even live in Wethersfield, but was a freeman of Windsor. It makes you wonder how competent the writers of this brief were.

Homosexuality as a concept may not have been in the modern form, but the notion of "sodomitical practices" prohibited in the Plymouth statutes is pretty clear, as are some of the court cases in which homosexual behavior was punished with whipping, branding, and permanent explusion from the colony.

HC Carey - 7/6/2003

The framers could not be "open to "homosexuality" since the term did not exist. It's like saying the "framers wre open to dyslexia." The point, and there is dramatic evidenc for this, is that when they considered same sex acts, they hought very differently than we do. But then, you didn't read the amicus brief, you just decided that the framers must believe as you do

P S Bradley - 7/5/2003

You're joking right? Are you actually suggesting that Americans circa either 1866 ot 1789 were more open to homosexuality than Americans were in 1986? Your response suggest two problems.

The first is the confusion of personal ideology with the Constitutional jurisprudence. Essentially everyone agrees that sodomy laws are - in the words of J. Thomas - "exceptionally silly." But mere desire to reach the right political end isn't a reason for unilaterally prostituting history as precedent. It is extremely silly for the Supreme Court to find no right to privacy in all sexual activities in 1986 and find such a right in 2003 when there has been no change in the relevant text. It looks like result oriented sleight of hand which hardly instills confidence in the institution of law. Your Consitution as blueprint argument works fine until its your ox that's gored by an anti-democratic Supreme Court. Next year when, say, the Court decides that terrorist groups can be imprisoned without trial or that suspicionless searches of random houses is permissible or that sodomy is once again not constitutionally protected or that people named "Carey" can be summarily deported, don't come whining to me. After all, the Constitution is just a blueprint that means whatever 5 out of 9 justices say it does.

The second is the obvious poor grasp of the basics of historical scholarship that repeatedly shows up at this site. Did you read the article? The article itself points out that there were laws against sodomy throughout the Eighteenth and Nineteenth Centuries. That is absolutely not in dispute. That society condemned homosexual or - in the words of the author - non-reproductive practices. My point is that per conventional jurisprudence the simpler explanation is to be preferred to the specious one. The most that can be said from the historical existence of such laws is that the framers may have recognized a special status for "reproductive acts" which they did not make illegal. To argue from that fact that all sex acts were intended to be as privileged seems specious in light of the fact that those acts were - as the author concedes - criminalized as, inter alia, "buggery" or "perversion." Further, your post commits the cardinal error of presentism. You may think the framers' society was wrong in what it considered a "perversion," but so what? They wrote the Fourteenth Amendment. The Historians Brief should have been devoted to their understanding, not to what a modern elite Coastal faction believes.

Of course, if you have evidence that the framers openly supported the integration of homosexuality, or such other diverse perversions as they may have been aware of, in society, you can share that data with us. It should revolutionize our understanding of the Constitution.

Charles A. Knicely BSC, BSS - 7/5/2003

If you look at the original charge or course noted when te supreme court came into being, "it will be for this body to to interpret the moral and ethical tone of the intent of the constitution." So to say the court is not to judge on moral grounds is foolish. Bowers, if you want to dig in to this, was using sodomy laws. To say there were no long standing laws in America is to say there are none at all then. There have been prohabitions on all sorts of human activity back to Roman times that may have been used.
I guess my main problem with this article is the fact that the writer says the court must give a wide opinion from a very narrow interpretation of the definition of sodomy. The writer must realize that if wide definitions are used, very wide prohibitions will occur. That is what the court was charged to do and is doing. Narrow opinions come from narrow definitions, as the writer pointed out sodomy laws are extremely broad.
If you use the major religions there are very clear prohabitions on sodomy and although Church and State are do be divided the moral tenor of the court is religiously based. Once you have loaded the court with athiests narrower opinions will come, not before. One must remember that in a country where money buys rightness, courts will only forward a solution, not justice.

HC Carey - 7/4/2003

But you don't offer any. Do yoou know for a fact that same sex acts were regarded as "perversions" I'm sure it seems like common sense to you, but it is not at all clear in the historical record. The brief offers evidence.

It would be a grim society indeed if we were bound by what "the founders" approved of. No paper money, no banks, no votes for women, indentured servitude and slavery, a strong empahsis on "rank" in daily life, direct election of senators--there are whole set of things they approved of that we no longer regard as just or fair. The constitution is a blueprint, not a straightjacket

P S Bradley - 7/3/2003

This post and the accompanying brief are delightfully tendentious. Is it really the case that anyone thinks that the framers of the Fourteenth Amendment intended to provide constitutional protection for sodomy? Let us agree for the moment that prior to the late Nineteenth Century there was no recognition of homosexuals "as such." Nonetheless, it is clear that the broad consensus prior to that time was that homosexual acts were "perversions," and it is likely that if the framers had been confronted with the concept of a group of people who routinely engaged in such practices, they would have classified that group as "perverts." Which, oddly, is precisely what their children did when confronted by that concept in the late Nineteenth Century.

Moreover, and more important, imposing criminal sanctions on a broad class of "nonreproductive" acts does not provide historical support for the idea that one such conduct - sodomy - falls within a traditional understanding of "privacy." Rather it tends to show that the intent was that "reproductive acts" were to fall within the area that society would not intrude. With a more robust understanding of "privacy" it is easy to see that decisions concerning reproduction would fall within that protected area. Oddly enough, again, until last week that was precisely the line that had been drawn by prior Supreme Court decisions. Griswold established the privacy interest with respect to decisions about contraception. Roe carred it forward with respect to decisions about childbearing. Bowers explicitly drew the line at reproduction.

Bottom line, once again a group of historians have prostituted truth for a political agenda.