Criminalization of Sodomy Laws is Unconstitutional - Essay Example

 Criminalization of sodomy laws is unconstitutional Statement of the Problem: Sodomy laws may be gender neutral or gender specific. Sodomy in itself is a crime and can undoubtedly be framed as a criminal act within the provisions of the law. However, where the question of consensual sodomy is concerned, the imposition of sodomy laws may represent an intrusion into the freedom and right to privacy guaranteed under the Constitution of the United States. Further, the imposition of gender specific sodomy laws also results in the criminalizing of homosexual behavior, which cannot strictly be classified as a criminal act when it is concerned with the sexual orientation of individuals, which falls into the realm of privacy of the individual. The criminalization of sodomy laws, especially those which are gender specific may constitute direct discrimination against homosexual individuals. The Constitution of the United States provides for individual freedom and privacy and also mandates equal protection of the rights of all individuals. On this basis, criminalizing consensual sodomy and making these laws gender specific, may constitute a violation of the freedom and protection guaranteed to individuals under the American Constitution and may thus have to be deemed unconstitutional. Criminalizing consensual sodomy imposes the prevailing common morals of society upon individuals and forces them to conform to those values, failing which they may be deemed to be criminals. This may be unconstitutional because it goes against the principles of freedom and respect for individual privacy which are laid out under the Constitution of the United States. The constitutionality of sodomy laws is therefore a serious issue, which is discussed further below. Arguments and analysis: When considering the existing sodomy laws before the judgment in Lawrence v Texas1, they in effect, criminalized all homosexual behavior and thereby caused great harm to gays and lesbian individuals. According to D’Emilio, the actual result of criminalizing sodomy through the imposition of sodomy laws was not in functioning as a deterrent to sodomy, but in inflicting “the stigma of criminality upon same sex eroticism.”2 As a result, homosexuality became equated with criminal behavior. The sodomy laws functioned as a vehicle through which those in society who wished to discriminate against and punish homosexuals for their sexual preferences were able to do so under the guise of imposition of the law. These laws provided an excuse for Government officials at local, state and federal levels to discriminate against homosexuals in employment, housing, immigration and custody battles. During the McCarthy era, these laws literally functioned as a tool in the hands of Government to officially adopt a position discriminating against homosexuals and lesbians.3 The suspicion that an individual was gay was enough to relegate him or her to criminal status. For example the 1973 Texas Homosexual Conduct Law incorporated section 21.06, which criminalizes homosexual conduct, making it a punishable offence under the law to engage in “deviate sexual intercourse with another individual of the same sex.”4 In the case of Baker5 a teacher was suspected of being homosexual and the very suspicion was in itself enough to get the individual fired for violation of the state’s sodomy law. On the basis of the above, one of the first issues that is raised by the criminalization of sodomy laws is the discrimination of a group of individuals within society on the basis of their sexual orientation. Contrary to the principles of equality of all citizens that is enshrined in the Constitution of the United States, the sodomy law had the effect of labeling the gay community as criminals, despite the fact that they did not strictly engage in criminal behavior that caused harm to anyone else. On the contrary, the sodomy laws6 encouraged individual citizens to engage in criminal acts against homosexuals; to target and persecute them on the basis of their sexual orientation, since they were considered to be deviant individuals. It also allowed police officers and other state and local officials to turn a blind eye to any complaints by gay individuals about attacks against them, persecution or discrimination by other citizens, since the sodomy law made the homosexuals themselves into criminals and therefore undeserving of the equal treatment meted out to all citizens. Another issue that arises in respect of sodomy laws is the assault on the individual freedom ad privacy of an individual. The sexual orientation of an individual is his or her own private business and especially where consensual sodomy is concerned, the individual concerned are not causing any harm to anyone else and should not have to be persecuted. This issue was raised in the cases of both Bowers v Hardwick7 and Lawrence v Texas.8 In the case of Bowers, the suit was brought by defendant Hardwick who was charged by the Georgia State Government for criminal violation of the state’s statute that criminalized sodomy. Hardwick challenged the constitutionality of his criminal conviction, since it violated his fundamental rights. The District Court supported the State’s position but the Court of Appeals reversed the decision, allowing due consideration for the individual rights to Hardwick’s privacy. However, the Supreme Court upheld the constitutionality of the Georgia statute. In specific connection with the issue of fundamental rights of the defendant, the Court stated: “ None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.”9 The Supreme Court supported its position by quoting the case of Stanley v Georgia10 in which it was stated: ”…..the fact that homosexual conduct occurs in the privacy of the home does not affect the result.”11 During the period when this case was prosecuted in the courts, most states had laws that criminalized homosexual behavior between two consenting adults even if it was carried on in the privacy of their bedrooms and the decision reflected the predominant view of the majority of Americans about the illegality of homosexual behavior, irrespective of the individual rights of privacy of the homosexual persons. A 5-4 majority in the Supreme Court in the case of Bowers upheld Georgia laws on sodomy which criminalized the act on grounds of traditional morality. There was however, one dissenting opinion from Justice Stevens who stated that: “…the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”12 This raises the important issue of whether constitutional individual rights can be sacrificed at the altar of common standards of morality. Where criminal behavior is concerned, it may well be argued that an individual’s rights to freedom as guaranteed under the Constitution cannot be allowed free rein to the extent that it poses a danger and a threat to others in society. When such behavior flagrantly opposes the common values that are upheld in society, it disrupts the law and order of society and poses a danger to the safety and peaceful existence of other individuals. While the criminalization of sodomy laws in effect, classified homosexuals as criminals and therefore did not condone their purported “criminal” behavior, thereby leading to the conclusion that their rights cannot supersede the common values of society, the question that arises in this case is – is the purported behavior in fact criminal? Consensual sodomy does not cause harm to anyone else, it is carried on in the privacy of the individuals’ bedrooms and falls strictly into the realm of personal privacy. As a result, the point raised by the dissenting Justice Stevens is relevant – the common moral standards of society in this instance may not justify the interference into the private lives of individuals engaging in consensual behavior in private without affecting anyone else. In 1986, the Supreme Court of the United States issued its judgment in the case of Bowers v. Hardwick, with the majority view supporting a Georgia statute that criminalized consensual sodomy.13 The issue at stake was whether or not the statute was constitutional in so far as it infringed upon a person’s sexual privacy. However, in the more recent decision in the case of Lawrence v Texas14, the Supreme Court was presented with the same issue – the criminality of consensual sodomy - but in this case, it reversed its decision and deemed it unconstitutional to deem consensual sodomy as a criminal act. In the case of Lawrence v Texas, the Homosexual Conduct law of Texas, moving along the lines of the Georgia state law, brought suit against the defendants for engaging in private, consensual sodomy. As pointed out earlier, a teacher was fired in the case of Baker15 under suspicion of being a homosexual, through the application of the same law. The Supreme Court, in rendering its opinion, held that the Bowers decision was unconstitutional and that the dissenting opinion of Justice Stevens should have been the guiding principle for delivering judgment. The Court declared that as fully consenting adults, the petitioners were “entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime”, within which area, “it is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."16 This clearly establishes the fact that irrespective of existing common moral standards of society, there cannot be a cause under the law to interfere with the individual liberty and privacy of citizens, especially since such freedom is specifically guaranteed under the Constitution of the United States17. The argument that was proffered by the defendants in this case was that the Texas sodomy law violated both the state and federal rights to privacy as well as equal protection guarantees. This decision rendered in the case of Lawrence is a landmark one in the case of gay rights and supports the freedom of the individual over the common morality standards. The decision was on a 6-3 basis and is an almost direct reversal of the very same Court’s order in Bowers vs. Hardwick, where the Court did adhere to the common morality standards. This also represents the change in the attitude of society towards homosexuality over the years, whereby a growing realization of the intrusion into privacy caused by criminalization of sodomy laws is evident. The major conflict that arises in these cases is the issue of the private freedom of two consenting adults versus the criminal connotation of the act of sodomy and the contention that homosexuals had a constitutional right to engage in the act. Another important issue that rises in both these cases is that of the Equal protection Clause, which holds that no individual may be discriminated against on grounds such as sexual orientation or moral beliefs which are private matters, where the law and the Courts may not intrude. The Bowers case qualified the issue of fundamental rights by stating that heightened judicial protection could be granted to individuals only when “neither justice nor liberty would exist if those rights were sacrificed”18, and did not find that to be true in the case of Bowers. Also, it deemed that these rights would have to be “deeply rooted in this nation’s history and tradition”19. This reflects the significance that was accorded to common moral values of society, such that they superseded individual rights. However, in the case of Lawrence, the Court made reference to a different definition of liberty itself, as spelt out in Moore v east Cleveland: 'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'20 Under this view, significance is accorded to individual rights, which supersedes the values of society. It may be seen that both notions of liberty are held to be valid under preceding case law, as spelt out in detail in the opinions rendered in both cases. However, the inconsistency in their definition may be explained on the perceptions of public morality, as was laid out in the case of Lawrence. The Supreme Court, in overruling the decision of the Court of Appeals, pointed to many cases where the grounds for decisions taken that could be claimed to have infringed upon individual liberties, was done on the justification that public morality needed to be safeguarded. The Court chose not to follow this pattern and instead to decide the constitutional issue of liberty on the basis of the 14th amendment rights to privacy granted by the Constitution of the United States. Justice Kennedy, while reversing the opinion of the Court of Appeals clarified that the Court had relied upon the Privacy Clause of the 14th Amendment rather than the Equal protection Clause, which would have placed the case under the discriminatory issue21. The reason for this was to enhance the concepts of liberty enshrined in the Constitution and provide them with a wider outreach, rather than restricting it to the issue of discrimination, which could be further qualified. Five Justices also relied upon the Due process Clause in the Lawrence case , noting that the State had no legitimate interest in criminalizing state behavior and the relationship between the two individuals in question was worthy of constitutional protection22. This was in contrast to the reluctance of the Court in the Bowers case to explore the ramifications of the Due Process Clause. In the words of Justice White who delivered the opinion of the Court on the Bowers case: “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”23 According to Dubler24, the Lawrence case is significant in that it should be understood as a critical intervention in so far as the jurisprudence of sexual freedom is concerned. She concludes that it could lead to two forms of constitutional protection. On the one hand, it extends constitutional protection to sexual practices that do not fall into the traditional format of monogamous, heterosexual marriage. Over and above this, it may also ultimately lead to constitutional protection also being extended to same sex couple sin providing them the right to marry. The important aspect that the case of Lawrence was able to establish in respect of consensual sodomy was that this is an issue that falls into the realm of the privacy of individuals, and therefore such consensual sexual acts cannot be designated as criminal actions. While the opinion of the Court in the Lawrence case in essence declares that homosexuals must not be discriminated, Justice Scalia, in delivering a dissenting opinion, stated that the Court has assumed a homosexual agenda and was attempting to normalize what most normal Americans viewed as immoral behavior. But the decision in Lawrence is significant because it effectively recognizes that the criminalization of consensual sodomy is not in accordance with the individual freedoms and the rights to privacy which are guaranteed by the Constitution of the United States. The Lawrence case may be seen to be as significant on the issue of homosexuality as was Roe vs. Wade in the issue of abortion25. The case of Roe v Wade legalized abortion and in a similar manner, this case appears to set a precedent for gay and lesbian rights so that their sexual preferences are not criminalized. The right to privacy has been invoked in these cases and the differing opinions reflect the changes that have taken place in American society in the intervening years since Bowers. Conclusions: The question arises: is the Texas Homosexual Law and the laws of other states criminalizing consensual sodomy, relevant in today’s society? In the words of Justice Thomas who concurred with Justice Scalia’s opinion in the Lawrence case, the law is “uncommonly silly” and “If I were a member of the Texas Legislature, I would vote to repeal it.” Should homosexual behavior be considered criminal at all and should the fact that it is conducted in private exclude it from prosecution? In this context, the Bowers opinion is relevant when it declares that a crime is a crime whether committed in the privacy of one’s home or outside. The issue becomes more complicated when viewed in the context of discrimination under the Equal Protection Clause. It raises an age old question that has existed since the time Galileo was prosecuted by the Church for his scientific beliefs – how far should public morality be the meter against which individual thought, belief and behavior is measured? The public conception of the ethical borders between right and wrong has a large part to play on the issue of criminalizing sodomy. Changing perceptions of society and the concentrated efforts of the gay and lesbian lobby have produced a favorable verdict in the Lawrence case. There can be no doubt that public sensibilities must play a role in determining the extent to which laws are applicable and the extent to which laws should be defined as criminal or non criminal, since laws are made to ensure the common good and control of public behavior. However, as far as the issue of sexual contact between two consenting adults in the privacy of their home is concerned, it hardly seems justified to impose the burden of public morality upon the ideals of individual liberty and freedom enshrined in the Constitution of the United States. In arguing in favor of its sodomy law, the state of Texas in the case of Lawrence argued that it was not targeting or discriminating homosexuals as a group, rather it targets homosexual conduct itself. At the Appeals Court, the state argued that the question of violation of equal protection protected under the Constitution does not arise because it applies equally to all individuals, heterosexual or homosexual who engage in homosexual behavior. However, Justice O’Connor pointed out that “those harmed by this law are those who have a same sex sexual orientation and thus are more likely to engage in behavior prohibited by the Texas Sodomy Law.”26 As a result, there was discrimination taking place against homosexuals and this is in contravention of the equal protection, respect and right to privacy afforded to all individuals under the Constitution. Hence, gender specific sodomy laws which target gay individuals to be prosecuted a criminals under the law do indeed violate the Equal Protection Clause under the Constitution. In several cases before Lawrence, homosexuals were unable to challenge the constitutionality of the sodomy laws because standing doctrine was invoked by the Courts as a means to uphold the sodomy laws27. However, in the case of Lawrence, not only were the two individuals in question arrested, they were also able to prove that they were both adults and had engaged in a consensual act which was private. On this basis, the state had no right to interfere in the freedom and privacy of two consenting adults and such interference constituted an unconstitutional act. Andersen points out that the law of sodomy has gone through several changes in the past years as the perception of society towards homosexual and lesbian individuals has changed28. Some of the difficulties that were inherent in the act, such as the need to establish standing before challenging the constitutionality of the sodomy laws were yet another factor restricting the ability of individuals to bring forth such a challenge. She argues that sodomy laws are essentially unconstitutional because they accord gays and lesbians the status of criminals in society and thereby infringe upon their rights to equal protection afforded under the Constitution. The case of Lawrence clearly established the violation of the individual rights to privacy guaranteed under the Constitution, which is the net result of sodomy laws in existence in Texas, also replicated in other States. The Constitution of the United States accords primacy to individual rights, allowing for the protection of the right to privacy. The sodomy laws in effect, seek to impose the collective moral values of society upon all individuals, even when it violates their rights to freedom and privacy guaranteed under the Constitution. As clearly stated in the dissenting opinion in Bowers mentioned earlier, the collective norms of society cannot provide a justification to ride roughshod over the individual rights which are guaranteed under the Constitution. Where such collective social norms are to assume precedence, there must be some exceptional reason for overriding individual rights, such as the harm and danger caused to other vulnerable members of society through deviant sexual acts. Where the issue is one of consensual sodomy however, there is no question of any harm or danger being caused to anyone else, since the individuals engage in the sexual acts in the privacy of their own bedrooms and by mutual consent. When the individuals in question are adults, the freedom issue becomes even more important and relevant and there can be no excuse for violating these rights to freedom and privacy of individuals to engage in sexual behavior as they deem appropriate. Applying these principles, it may thus be concluded that criminalizing sodomy is an unconstitutional act because (a) it imposes collective social norms upon people, irrespective of their individual freedom and right to privacy (b) it constitutes discrimination against a particular group of individuals, i.e, homosexuals and (c) it imposes a requirement of standing in order to challenge the constitutionality of the Act which in itself requires that the individuals in question be arrested. All of these constitute a violation of the individual rights to freedom and privacy which are guaranteed under the Constitution. The sodomy laws are especially untenable when applied to consenting adults who are engaging in sexual acts in the privacy of their own bedrooms and are not causing any harm to anyone else. Under these circumstances, encroaching into their private domain and arresting them, as occurred in the case of Lawrence, constitution a violation of constitutional rights and therefore the law on sodomy is unconstitutional. Bibliography Andersen Ellen Ann, 1998. “The stages of sodomy reform”, 23, Thurgood Marshall Law Review 283 D’Emilio, John, 1983. “Sexual Politics, Sexual Communities: The making of a homosexual minority in the United States: 1940-1970”, Chicago: University of Chicago Press Dubler, Ariela R “From McLaughlin v Florida to Lawrence v Texas: sexual freedom and the road to marriage”, Columbia Law Review, 106: 1165-1189 Leslie, Christopher R, 2000. “Creating Criminals: the injuries inflicted by ‘unenforced’ sodomy laws”, Harvard CRCL Law Review” 103 Cases cited: Baker, 553 F Supp at 1126 Bowers v Hardwick (1986) 478 U.S. 186 Buchanan v Wade, 401 U.S. 989 (1971) Doe v Commonwealth’s Attorney for City of Richmond, 403 F. Supp 1199 (D. Va. 1975) Lawrence v Texas (2003) 539 U.S. 558 Moore v. East Cleveland, 431 U.S. 494, 503 (1977) Planned Parenthood of Southeastern Pa. v. Casey,(1992), 505 U.S. 833 Roe v. Wade, 410 U.S. 113 (1973). Stanley v. Georgia.(1969). 394 U.S. 557 Read More