A Far Greater Threat

That sexual conduct in the bedroom between consenting adults should be beyond the reach of the state and the prying eye of the policeman seems in this enlightened age to be obvious, but not to a narrow majority of the U.S. Supreme Court.

Its 5-4 decision upholding the Georgia law forbidding oral and anal intercourse between homosexuals reflects no doubt a similar division of opinion in the country: 26 states, including California, have repealed their laws forbidding acts called “sodomy” for both heterosexuals and homosexuals, leaving 24 states and the District of Columbia with variations of them still on the books. The Supreme Court ducked the question of heterosexual “sodomy,” which includes acts by married couples and which is also prohibited by the Georgia law at issue.

Fortunately the court decision leaves the states on their own; the humane laws of California and the like-minded states are left undisturbed.

The case illustrates nicely how the Supreme Court is called on to apply the general principles of the Constitution to the evolving needs of the nation and its citizens. The case was brought under the relatively new concept of the right of privacy. The right was not explicitly expressed in the Constitution, but it began to emerge in court opinions about 60 years ago, and was declared by the Supreme Court in 1965 to be inherent in the Bill of Rights. The court has applied that right to marriage, child-rearing, conception and abortion.

The right of privacy, said Justice Louis D. Brandeis, the leading early advocate of the concept, is “the right to be let alone--the most comprehensive of rights and the most valued by civilized men.” In his eloquent dissent in the Georgia case Justice Harry A. Blackmun argued cogently: “The right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy.”

But Justice Byron R. White, for the majority, citing historical precedent and the reluctance of the court to get into yet another controversy, blandly asserted that homosexual conduct bore no “resemblance” to the other rights of privacy secured by the court.

The rigid and hostile attitude woven through White’s opinion will discourage those not inclined to sit in righteous judgment of others, but they can hope, with Blackmun, “that the court soon will reconsider its analysis and conclude 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.”