Phil Burress is president of the Cincinnati-based Citizens for Community Values. Any group that has the words ‘traditional’, ‘family’, ‘values’, and the like in its title is likely to be narrow-minded and this one is no exception. CCV is one of those groups that fights for ‘Judeo-Christian moral values’ and ‘has been ‘protecting the family since 1983’ mainly, it seems, by fighting against pornography and homosexuality.
This group is of course opposed to same-sex marriage but recently Burress said: “We’ve heard all the arguments, pro and con, and we just don’t see any right (for same-sex marriage) in the Constitution,” but then added, “People have the right to have sex with who they want, but they don’t have the right to change the oldest institution on the face of the earth.” [My italics-MS]
Although he is still opposed to same-sex marriage, I thought it significant that he felt obliged to acknowledge that people’s sexual orientation and behavior is of no concern to others. This is a sign of a significant change in attitudes, and can be seen in the way in which the US Supreme Court has shifted its own attitudes to reflect those changes.
Recall that it was only as recently as 2003 in the case of Lawrence v. Texas that the US Supreme Court by a 6-3 vote outlawed the prosecution of gays for sexual activity in the privacy of their home. This overturned a ruling in an almost identical case Bowers v. Hardwick in 1986 where a person was convicted under a Georgia statute criminalizing sodomy, even though the act had taken place with another consenting adult male in the bedroom of his house.
In his majority opinion in the 5-4 verdict in the Bowers case, Justice Byron White said:
Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the [p191] claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. [My italics-MS]
Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. 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. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.
Note the strong statement that the state had a right to impose its views of what is moral even if there was no rational basis for those views.
In his majority opinion in Lawrence v Texas overturning this precedent, Justice Anthony Kennedy explained why it should be overruled, and in the process revealed how rapidly views had on the relationship of the state and private morals and actions had changed in just 14 years.
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:
“Our prior cases make two propositions abundantly clear. First, the fact 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. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).
Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are 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. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
It is an impressive affirmation of the importance of liberty in one’s private life and, as Burress’s statement suggests, within the short space of a decade, it seems to have now become accepted by even the most narrow-minded of people.
Note that Kennedy’s ruling explicitly endorses Justice John Paul Stephens’ earlier dissent in Bowers that ‘neither history nor tradition’ was sufficient to save a law such as those that existed against miscegenation and similarly should not be sufficient when it came to outlawing private sexual acts between consenting adults. This is significant since Kennedy is considered pivotal in determining the outcome of the same-sex cases now before the court and ‘tradition and history’ are key elements in the arguments against same-sex marriage as well.