L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 221, April 28, 2003

"NEXT TIME ..."

It's Time for a Separation of Sexuality and State
by Todd Andrew Barnett
libertarianman@comcast.net

Special to TLE

"Well, the one thing that I submit, the Court, the State should not be able to come in to say is we are going to permit ourselves the majority of people in our society full—full and free rein to make these decisions for ourselves but there's one minority of people don't get that decision and the only reason we're going to give you is we want it that way. We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy and the State should have no basis for intruding into our lives but we don't want those people over there to have the same right."
—Paul M. Smith, an attorney speaking on behalf of John G. Lawrence and Tyron Garner before Chief Justice William H. Rehnquist in the Lawrence and Garner v. Texas case at the U.S. Supreme Court building, March 26, 2003

The fairly recent Lawrence and Garner vs. Texas case, which was argued before the U.S. Supreme Court on March 26th, has sparked a national debate on whether or not government should be in the business of prohibiting or even regulating peaceful, consensual behavior between two consenting adults—particularly gay and lesbian couples. In this case, the debate focuses on whether or not the State of Texas should intervene in the peaceful, consenting sexual practices between same-sex couples.

The case began when a Harris County sheriff was alerted to an alleged disturbance that supposedly involved a gun in an apartment building on September 17th, 1998. When the sheriff stepped into the home of John G. Lawrence, he spotted Lawrence engaging in sodomy with Tyron Garner in his bedroom. Immediately the men were placed under arrest for violating Section 21.06 of the Texas criminal code—specifically, the state's homosexual conduct law—and were brought to prison.

At the time the sheriff's spokesman, Capt. Don McWilliams, said, "In all candor, I don't believe we've ever made an arrest before under those circumstances." Then he spoke frankly, saying that the law is the law and it had to be enforced. "We can't give our deputies a list of statutes we think they should enforce and a list of statutes we want them to ignore." I suppose, in this case, you can't blame the police for doing what they did.

The two men, of course, were both arraigned, tried, and convicted on the charges of violating the state law and were fined $200 each. The state's criminal code, under which the law is categorized, reads as the following:

21.06. Homosexual Conduct (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. (b) An offense under this section is a Class C misdemeanor

Of course, Lawrence and Garner were forced to spend a night in jail until they were bailed out. Incidentally, Roger Nance—the man who filed the false report of the disturbance in Lawrence's home—served a minimum sentence of 15 days in prison, even though the animosity between him and the two men originates from a "personality dispute." Adding insult to jury, by November Lawrence and Garner had no choice but to plead no contest to the charges and were fined $125 by the justice of the peace. Eventually the convictions were challenged and thus overturned by a 3-judge panel of the 14th Court of Appeal. Nevertheless, the case was re-tried in the same court, thus resulting in the upholding of the statute.

The men's attorney, Paul Smith, argued before the court that the state had no business in intervening in the private affairs of its citizens, especially when it is in regard to their sexual conduct. He noted that Americans always enjoyed their fundamental right to engage in sexual behavior in the privacy of their own home, free from unjustified state interference. He also stipulated that the law discriminates same-sex couples while giving special protections to heterosexual couples who commit the same acts. Regardless of how or what one thinks about this case, he has a point.

The question before us is not whether or not the law should have been applied in this case or any other case. The question is not whether or not the state should have applied the law equally to all couples, regardless of sexual orientation and sexuality. The question is whether or not government has a moral, ethical, legal, and constitutional right to impose moral standards on its communities and whether or not it has a right to violate the rights of those who are not doing the same to others. The question is also whether or not government should have the right to intervene in an individual's right to free association, particularly when such associations are voluntary and are conducted upon mutual consent.

When the Founders declared their separation from England, they did so with the intent of creating a government that would be limited in power and would be restrained to carry out the bidding of its citizenry. The goal of this new government was to protect the rights of the individual, and to defend the individual from all enemies—foreign and domestic. Its purpose was to convict murderers, rapists, thieves, and other violent criminals who violated the rights of others. The other part of that purpose was to leave its citizenry alone if they were engaging in peaceful economic and personal activities.

Unfortunately, within 200 years the federal republic has become a shadow of its former self. Instead of a small, limited government for which Jefferson, Madison, and McHenry called, we now have a highly bloated, expansive leviathan—a conglomerate of services that have been operating in red ink and have been inundated with a sea of bureaucracy and inefficiency.

The point of this latest controversial exercise is whether government has any business in deciding whether individuals, regardless of sexuality and/or sexual preference, should be engaging in private behavior that may be construed as morally offensive to others. Conservative collectivists would have the temerity to say, "Of course not! Such perverse and morally bankrupt behavior is an affront to family values, even Christian values. This brand of deviant conduct must be outlawed at all costs!"

We shouldn't be surprised with this collectivist mindset. After all we are talking about the same conservatives who refuse to recognize equal rights for gays and lesbians by supporting anti-gay laws and throw stones at drug addicts and arrest innocent people on the pretext of alleged possession of illegal narcotics via the morally bankrupt and perverse civil asset forfeiture laws and the War on Drugs. These are the same ones who even support a state-mandated school prayer and the preservation of the phrase "Under God" in the Pledge of Allegiance in the perverse, morally bankrupt government schools.

It deserves mentioning that the liberal collectivists are no better, because they have looked the other way whenever these statist machinations are utilized for their fullest effect. Since when do the collectivists on the left and the right lose any sleep for the incessant loss and deprivation of liberty? One should be scratching his head to find the answer to that question.

Currently four states zero in on same-sex participants who engaged in private sexual conduct. Nine other states prohibit sodomy regardless of the gender of the participants. It is abundantly obvious that the Texas statute is one not about prohibiting sodomy, but rather one about outlawing homosexuality. Not that it matters, but it wasn't until 1973 that the word "homosexuality" was eliminated from a long list of mental disorders by the American Psychiatric Association. Before that, same-sex practices were viewed as taboo by society. It wasn't until decades later that the views on said practices had changed considerably.

In 1973, the Texas state legislature amended the statute to exclude heterosexual couples from legal prosecution for committing sodomy after it was discovered that the said practice was becoming widespread statewide. The revised statute thus limited its statute to only persecute same-sex partners who engaged in the practice.

Has it ever occurred to the statists in the legislature that the Fourteenth Amendment's Equal Protection Clause forbids states from denying equal protection under the law to all citizens? Considering that is a given, the statute will certainly not survive the immense federal scrutiny by the court. Let's face it—the statute clearly discriminates same-sex partners from engaging in sodomy, but clearly gives special protections to heterosexual partners who are free to engage in that same "deviant sexual behavior."

Nevertheless, it's the collectivists on both the left and the right that we should be thanking for this mess. They are the ones who originally lobbied for this statute to be on the books. Because of them, this is the perfect, opportune time to call for a separation of sexuality and state.



© 2003 by Todd Andrew Barnett. All Rights Reserved. Permission to reprint any portion of or the entire article is hereby granted, provided that the author's name and credentials are included.


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