Violation of Rights

Liberals who fear the "soon-to-be" right-wing Supreme Court no longer need to hold their breath. By upholding the Georgia sodomy law last week, the Burger Court has proven itself every bit as capable of violating individual rights as the Rehnquist Court promises to be.

Associate Justice Byron White, who wrote the decision, claims that there is no "constitutional right of homosexuals to engage in acts of sodomy." Why this is so is not apparent to anyone, including White, judging from the muddled arguments that he makes to buttress his decision.

In the first place, White points out, it would be impossible to tolerate sodomy without also permitting other sexual crimes, such as incest. This analogy is absurd. There is a vast difference between protecting minors from conduct harmful to them and interfering with the decisions of consenting adults.

Secondly, White argues, sodomy laws have "ancient roots" which can be traced back to the late 18th century. Perhaps White is not aware that the Court has struck down other ancient laws, such as statutes prohibiting intermarriage, contraception, and abortion. Abortion laws go back to Exodus 21--ancient by White's standards, I would imagine.

By insisting that the right to privacy extends only to rights "deeply rooted in the nation's history and tradition," White basically is saying that people have the right to do anything so long as it has received a historic stamp of approval from the rest of society. But if White were to study the history of Western rights he would discover that they were designed to protect precisely that area of conduct that is most frequently impugned. The Constitution is a worthless document if it enforces only that which does not need enforcing. A right to privacy that allows one to eat what one wants or to arrange one's furniture to one's liking seems a bit superfluous these days.

But White fails to understand that the right to privacy is the issue at hand. Instead, he thinks that the Court must decide whether it approves of homosexuality. Does he also think that the Court should decide whether it approves of certain colors of clothing or certain brands of dishwasher detergent?

Moreover, White seems to forget that sodomy laws forbid oral and anal sex between heterosexual couples as well as homosexual ones. In a dissenting opinion, Associate Justice Harry Blackmun scolds White for an "almost obsessive focus on homosexual activity." Of course, this obsession is no small coincidence. There is little chance that a case of heterosexual sodomy would ever make its way to the courts since Americans do not disapprove of sodomy between heterosexuals. We can therefore rest assured that only homosexuals will have their bedrooms raided by local police.

But far more invidious than the particular ramifications for homosexuals is the philosophy of government that underlies White's decision. It is a philosophy that claims that the state is allowed to enforce the morality of the majority culture. This same philosophy undergirds South Africa's laws prohibiting miscegenation as well as the religious intolerance that plagues so many countries.

White is wrong to think that his decision simply follows the tenor of history. This country was founded on the principles of tolerance and minority rights. By flouting these principles so blatantly, White not only betrays the spirit of the framers of the constitution, but also sets a dangerous precedent for future intolerance and oppression.