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Right intentions, wrong solution on "Homosexual Conduct" law

By Scott Tibbs, January 31, 2003

The Family Research Council has been vocally supporting the Homosexual Conduct Law in Texas, which bans sexual contact between two people of the same gender. The same behavior is legal under Texas law when engaged in by a heterosexual couple. I received no fewer than five e-mail updates from the FRC in the past week supporting the law. In general, I am a supporter of the FRC and the agenda they advocate, but in this case, I take issue with their position.

As a Christian, I concur with the admonition against homosexuality in Romans 1:26-27 and other places in the Bible. However, as a libertarian conservative, I do not support the implementation of this Biblical doctrine into law. I believe this is a spiritual, not a legal issue, and is best handled in the spiritual realm rather than the legal realm. This is not abortion, where there is a clear violation of the rights of another human being. Texas' "Homosexual Conduct" law instead bans a private activity engaged in by consenting adults.

The FRC issued a press release announcing they had filed an amicus brief to the Supreme Court, in which they argue that the Texas law is a legitimate tool state government can use to promote marriage. FRC takes the position that when heterosexual couples engage in sexual acts other than intercourse, the act is part of a relationship that could eventually lead to marriage. However, because homosexual couples cannot be married, the state of Texas has a right to discourage these acts as a way to promote marriage.

Some may argue that homosexuality is destructive to those who are in same-gender relationships. Indeed, some of the arguments in support of these laws are to promote public health. But is this reason enough to have laws telling people what kind of sex they can have with whom they choose? The government should not be in the business of passing laws restricting consensual behavior "for our own good". If we were to follow this logic, we could make the unhealthy food at McDonald's illegal for consumption, ban tobacco, and regulate what kind of dangerous sports one may engage in on his or her free time. There is no limit to the laws that can be passed "for our own good".

The most basic role of government is to provide things like law enforcement, infrastructure, national defense and a court system. It is not the business of government to interfere in activities that do not harm a non-consenting third party. While all laws legislate morality, this particular law legislates a personal morality that the government should avoid mandating.

Constitutionally, the states have the right to prohibit sodomy. The Tenth Amendment gives states wide latitude in deciding which laws can and cannot be passed. It is mistaken to assume that when the Founders wrote the Constitution, they intended for the federal government to prohibit, or even be involved in, these types of laws.

While it is true that public opinion is changing on homosexuality, we do not have a "living" Constitution that can be interpreted differently as public attitudes or societal needs change. If we have a "living" Constitution, we have no Constitution at all because it can be "interpreted" on a whim. If sodomy laws in general are to be a Constitutional issue, a Constitutional amendment must be introduced stating that states to not have the right to interfere in this matter.

The issue that the Supreme Court should decide is whether or not the Texas law violates the equal protection clause of the Fourteenth Amendment. The FRC argues that when the Supreme Court upheld Bowers v. Hardwick, it did not distinguish that the law was enforced primarily against homosexuals. However, in thinking about constitutional law, the most important thing to consider is the text of the Constitution itself. In this case, the Fourteenth Amendment states: "No State shall... deny to any person within its jurisdiction the equal protection of the laws." A law than bans this specific behavior for some people and not others is in violation of this principle.

In a column for National Review, Richard Lessner argues that the Supreme Court must consider the Stare Decisis principle of respecting past decisions by the Court. Judicial precedent is indeed important and should not be overturned without a good reason. However, the Supreme Court justices are fallible human beings, and can make mistakes. This must be recognized when the Court considers whether a previous decision is to be overturned.

In his syndicated column, Michael J. McManus writes:
Harris County, Texas District Attorney Charles Rosenthal argued that the Lone Star State's ban "does not violate the 14th Amendment...because the Constitution has never recognized a fundamental right to engage in extramarital sex." America has a long tradition of regulating sexual conduct outside of marriage. And Texas "has a right to set moral standards and can set bright line moral standards for its people."
The problem with this argument is that it does not deal with the issue of whether or not the law violates the "equal protection clause of the Fourteenth Amendment.

This is not an issue of reducing standards for marriage or creating another "slippery slope" for society to slide down. This is an issue about the proper role of government and what government has a right to do. It is entirely possible to oppose these types of laws and not support extending the definition of marriage to include something other than unrelated monogamous heterosexual couples. The FRC and supporters of the Texas law have the right intention in opposing same-gender sexual relationships, but this is not an acceptable solution.