Americans are dedicated to the notion of freedom, but this is a value more often held than given in a society steeped in puritanical ideas and
No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than freedom, but conceptions about this are widely controvesial.
Legal punishments for sodomy often included heavy fines, prison sentences, or both, with some states, beginning with Illinois in 1827, denying other rights, such as suffrage, to anyone convicted of the crime of sodomy.
In the late 19th and early 20th centuries, several states imposed various eugenics laws against anyone deemed to be a “sexual pervert.”
As late as 1970, Connecticut denied a driver’s license to a man for being an “admitted homosexual.”
As of 1960, every state had an anti-sodomy law but as time went by, society became increasingly open and courts recognized that prohibition of private behavior was untenable in a nation dedicated to the proposition that human beings are free.
In 1961, the American Law Institute’s Model Penal Code advocated the repeal of sodomy laws as they applied to private, adult, consensual behavior.
Two years later the American Civil Liberties Union (ACLU) took its first major case in opposition to such laws.
In Griswold v. Connecticut, the Supreme Court struck down a law barring the use of contraceptives by married couples.
In that 1965 case, the Supreme Court recognized for the first time that couples, at least married couples, had a right to privacy, drawing on the Fourth Amendment’s protection of private homes from searches and seizures without a warrant based on probable cause, the Fourteenth Amendment’s guarantee of due process of law in the states, and the Ninth Amendment’s assurance that rights not specified in the Constitution are “retained by the people.”
Eisenstadt v. Baird expanded the scope of sexual privacy rights to unmarried persons in 1972 and in 1973, the choice whether to have an abortion was found to be protected by the Constitution in Roe v. Wade.
In Bowers v. Hardwick, the Supreme Court heard a 1986 constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home.
The court rejected this challenge in a 5 to 4 decision. Justice Byron White’s majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a right to sodomy.
Justice Blackmun, writing in dissent, argued that Eisenstadt held that the Constitution protects people as individuals, not as family units. He then reasoned that because state intrusions are equally burdensome on an individual’s personal life regardless of his marital status or sexual orientation, there is no reason to treat the rights of citizens in same-sex couples any differently.
Lawrence v. Texas was a landmark 2003 decision of the U.S. Supreme Court, which ruled that sanctions of criminal punishment for those who commit sodomy are unconstitutional, once again reaffirming the concept of a “right to privacy” that earlier cases found the U.S. Constitution provides, even though it is not explicitly enumerated.
By the time of the Lawrence decision, ten states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Michigan, Utah, and Virginia—still banned consensual sodomy without respect to the sex of those involved, and four—Texas, Kansas, Oklahoma, and Missouri—prohibited same-sex couples from engaging in anal and oral sex.
Depriving consenting adults of privacy and freedom stems from puritanical religious beliefs but that contradicts fundamental American values such as minding your own business and letting others live their fullest lives without government intervention.
The fundamentalist religious right wing in America is close to putting the right to privacy in peril with a variety of cases that appear headed to a Supreme Court stacked by Republicans, including a third of the justices who were appointed by the now-disgraced former President Donald Trump.
These changes may be welcome among the American Taliban but freedom loving citizens should be up in arms over the Republican assault on liberty and justice they represent.