Last May the 11th U.S. Circuit Court of Appeals in Atlanta struck down Georgia’s sodomy law as a direct violation of an individual’s right to privacy. The case involved a homosexual man who was arrested in his own bedroom, and the court held that the state could not constitutionally control sexual behavior between consenting adults in private.
Recently, however, the 5th U.S. Circuit Court of Appeals in New Orleans upheld the constitutionality of the Texas sodomy law, arguing that the “strong objection to homosexual conduct . . . has prevailed in Western culture for the past seven centuries” and that the state has a legitimate interest in “implementing morality.”
The losing side in each of these cases intends to appeal to the U.S. Supreme Court, which will thus have an opportunity to resolve the directly conflicting opinions from New Orleans and Atlanta. The cases present fundamental legal issues of privacy and equal protection that should be of concern to all citizens, not just homosexuals.
Where sodomy laws exist (they were repealed by the California Legislature in 1975), they are selectively enforced against gay men, although studies show that the majority of people in this country engage in sexual practices that could be called sodomy. The laws say that the sexual activity of gay people is per se illegal, which puts all homosexuals at risk of being charged with criminal conduct and of being stigmatized as a result.
In the fight against acquired immune-deficiency syndrome, much effort and money are being placed in public education of safe sexual practices. In Texas, presumably, all such discussion deals with illegal sexual conduct. James Mason of the federal Department of Health and Human Services says that one way to reduce the spread of AIDS is to encourage homosexuals to form monogamous relationships. Is he encouraging illegal activity in Texas? Will Texas turn down its share of federal funds that are earmarked for education in safe sex?
The bedrock issue here is that, contrary to the view of the appellate judges of the 5th Circuit, the state has no business snooping into people’s bedrooms. Privacy is a cherished right that protects everyone, which the 11th Circuit judges understood. The Supreme Court will soon have a chance to make that clear.