So long, sodomy laws - East Valley Tribune: Opinion

So long, sodomy laws

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Posted: Thursday, June 26, 2003 9:31 pm

In a 6-3 decision, the United States Supreme Court Thursday struck down a Texas law criminalizing homosexual acts — and in so doing, torpedoed antisodomy laws in states still having them.

All we can say is, it's about time.

These laws are virtually never enforced and have not been for years. Indeed, the case in question was only prosecuted because a neighbor with a grudge made a phony disturbance call to which police responded. Discovering two men at the apartment to which they'd been dispatched having sex, officers arrested them. The unlucky pair spent a night in jail and pleaded no contest to sodomy charges, for which they were fined $200.

As recently as 1961, such laws were in effect in all 50 states. But by 1968 only 24 still did, and that number had dwindled to 13 by Thursday. Arizona got rid of its own two years ago.

Writing for the majority, Justice Anthony Kennedy noted that "for centuries there have been powerful voices to condemn homosexual conduct as immoral" and ackowledged the intensity of their concern. But the passion of their views was not the issue, he wrote: "The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law."

Kennedy's framing of the case's central issue points up an inconsistency in the thinking of cultural conservatives, whose ire is often raised by "big government" when it is doing things like banning prayer in public schools or prohibiting vociferous demonstrations outside of abortion clinics. When "big government" peers into a private apartment and jails two people for engaging in sexuality they don't like, suddenly they have no problem with it whatever.

It is to be hoped, though very much doubted, that cultural conservatives will reconcile themselves to this ruling, which is a significant victory for personal liberty — and only brings American law into line with what was already American reality.

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