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In the excellent article “Roe v. Gay” (2/11), gay abortion foe Joseph Beard is quoted as saying, “The Supreme Court specifically rejected the right to privacy in gay and lesbian relationships in Bowers vs. Hardwick and in an earlier case. In the past 20 years the states that have decriminalized sodomy have done so not by court decree but by legislative action based on concepts of liberty rather than privacy.”
Whereas Beard has a strong grasp of federal law, his knowledge of state sodomy-law-repeal efforts is much less accurate.
In the past 20 years, seven states have had their sodomy laws struck down by judicial decree of their unconstitutionality. Only four states (Alaska, Wisconsin, Nevada, and Rhode Island) and D.C. have had successful legislative repeals. Additionally, another five states have had incomplete rulings that either are on appeal now or have left part of the state without an enforceable sodomy law. Currently, lawsuits are working their way through the courts of Virginia, Louisiana, Texas, Arkansas, and Puerto Rico.
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In every legislative repeal effort, including the 1993 repeal in D.C., privacy was the primary issue on which the laws were repealed. All of the court cases since the 1986 Bowers decision have rested on state constitutional protections of privacy and equal protection, which are usually stronger than the federal protections.
In the 1997 Montana case Gryczan vs. Montana, which struck down that state’s sodomy law, the court ruled, “Unlike the federal constitution, Montana’s Constitution explicitly grants to all Montana citizens the right to individual privacy. Article II, Section 10 of the Montana Constitution provides: Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
In the previous two decades, 21 other states had their sodomy laws repealed legislatively. Almost all of those states repealed their laws not on the basis of liberty, but rather as criminal-code modernization.
Beard and other conservatives should accept that privacy is an essential concept of liberty. They should also recognize the very conservative and Reaganesque principle that individuals can make better choices for themselves than the government can make for them. The choices of whom to love, which sexual acts to engage in, how and when to reproduce or prevent reproduction, and whether to terminate a pregnancy are all deeply personal and private decisions that government cannot decide in one way for all people at all times. These are areas where conservatives should hold to their beliefs in limited government and embrace the courts that restrict the state regulation of sex and reproduction.