Commentary

Government Shouldn’t Police Morals — or Sexual Practices

This article was published in the Orange County Register, April 6, 2003.

Should government be in the business of policing “morals”? It’s an old question that covers the vast array of human affairs, everything from murder and rape to drug use and sodomy. After all, everything in that array involves morals and moral judgments. But in a free society, not every human affair is a government affair. In fact, if we take our Declaration of Independence at face value, the business of government is to secure our rights, not to police the behavior that some find immoral, even if they can’t point to any rights the behavior violates.

That, in essence, is what John Lawrence and Tyron Garner said March 26 when they asked the U.S. Supreme Court to overturn their convictions under a Texas statute that criminalizes consensual homosexual but not heterosexual sodomy. Obviously, the statute’s target is not sodomy. It’s homosexuality. Indeed, after it became clear that the practice of heterosexual sodomy was widespread in Texas, the state in 1973 narrowed its statute to prohibit only homosexual sodomy.

But in either case — whether homosexuals alone are targeted, as in four states today, or sodomy is the target, regardless of the sex of the participants, as in nine other states — the question remains: What’s the government doing in this business?

As a constitutional matter, the Texas statute will probably not withstand the court’s scrutiny. The Fourteenth Amendment’s equal protection clause prohibits states from denying anyone the equal protection of the laws. Given that the statute singles out homosexual sodomy for prosecution, while leaving heterosexuals free to practice what they wish, we have what seems a clear case of the kind of discrimination the amendment will not allow. Homosexuals, after all, are not second-class citizens. A law that prohibited homosexuals from living together, for example, but was silent about heterosexual living arrangements, would be thrown out in a minute.

But what about the statutes in the nine states that don’t discriminate on the basis of the sex of one’s partner? Here the equal protection argument will not avail since the prohibition applies to everyone equally. If the court is to invalidate those statutes too, as many of the briefs filed in the case urge it to do, it will have to turn to the substance of the matter. For historical reasons, the Fourteenth Amendment’s due process cause, which prohibits states from depriving people of life, liberty or property without due process of law, would likely be cited. But the amendment’s privileges or immunities clause, which prohibits states from abridging the privileges or immunities of citizens of the United States, would be the better ground for overturning such laws. Unfortunately, the court has never really understood or made proper use of the protections afforded by that clause, which today is essentially a dead letter.

Were the court to invoke the clause, it might begin by asking those fundamental questions that are at the heart of the American vision, questions that are grounded on a simple premise: In a free society, before government can legitimately restrict the liberty of a citizen, it must have a good reason. The basic presumption, that is, is on the side of individual liberty, not government power. It is the government that must justify its action, not the citizen his liberty. And in that framework, not every rationale for government power will do. In fact, beyond protecting the rights of others, the rationales that will do concern primarily the protection of the general welfare — that is, the good of all.

Plainly, powers that punish those who are doing no harm fail that test immediately. If there is anything that marks the privileges or immunities of citizens of the United States, it is the right to pursue happiness, consistent with the rights of others, even when doing so may be unpopular or, in the eyes of many, immoral. That, in a nutshell, is the morality of liberty.

Roger Pilon is vice president for legal affairs at the Cato Institute, which filed an amicus brief with the Supreme Court in the Lawrence v. Texas case.