Introduction
Both these cases deal with homosexual sodomy. The fundamental question that arouse was, in the context of Georgian laws outlawing anal sex, whether the rules applicable to anal sex by homosexual partners need also to be considered illegal when indulged in, by heterosexual partners.
In the case of Bowers v. Hardwick (478 U.S. 186 (1986), a policeman entered bedroom of Hardwick, the respondent, found him engaged in compromising oral sex act with another man and arrested him under Georgian sodomy laws.
Although the District Attorney dropped sodomy charges against him, Hardwick filed a civil rights action, claiming violation of fundamental rights to privacy and challenging the Constitutional validity of Georgia law which ruled that a person commits the offense of sodomy when he performs or permits performance of any sexual activity, expressly prohibited by law. According to this law, the maximum term in the event of proved guilt would range between 1-10 years in prison. (Howard Ball, The Supreme Court in the intimate lives of Americans: Fundamental rights versus State interest –The Balancing process: P.8 (Web).
In this case, after a lot of deliberations, his petition was turned down, since a strict interpretation of the right of privacy rights would not extend to wanton sexual independence, and again, sexual expressions through homosexual acts is contextually and legally different from sex acts carried out under the protective cloak of sanctity of marriage, family and progeny.
The facts of this case were that the police officers entered the bedroom of one of the respondents, John Geddes Lawrence, found him having anal sex with another man.
Both were arrested and produced before law. Their petitions for protection under due process laws of the 14th Amendment were rejected and they were subjected to the process of law. Texas laws criminalize same sex sodomy, while it does not do the same regarding hetero-sexual sodomy. The law in this case is that, under Texas law, a person could be held guilty for only same sex sodomy, while under these laws, hetero-sexuals engaging in sodomy would not fall within the purview of crime.
However, the Courts in the case of Lawrence v. Texas considered the fact that there was an intrusion of privacy and breach of fundamental rights guaranteed under the US Constitution. This case became a landmark case in the realms of sodomy laws in US, and ushered in a more broadminded and liberal attitude towards same gender consensual sexual relationships between people. Many states have now deregulated sodomy in US, taking courage from this case.
It is seen that in US context, the laws governing sodomy is more a State aspect, rather than central issue. State laws are applicable to issues that arise in context of sodomy and related matters.
The writer does not agree with the Lawrence decision. In a delicate issue of this kind, involving unnatural or deviant behaviors, it is necessary to examine both side of the argument before seeking a just and acceptable solution.
Facts contradicting the Lawrence decision
The fact whether unnatural sexual act is performed through co-sanguinary partners, bestiality or anal penetration of same sex couples, through natural or mechanical means, does not rob the essential unnatural nature of the matter, in terms of the fact that it is used as abnormal, pleasure seeking method and not for the need for procreation or family structuring.
The idea of sexual cohabitation stems from the need to build and sustain human societies for future generations so that later generations could provide strength to social order and development. By using the sexual act for pervasive and pleasure-seeking means, in essence, the overriding need for procreation and building family bonds are being blatantly subrogated.
Further, norms provided by civilized societies and governments have to be adhered since it has been provided for the social welfare of the community as a whole. Specific individuals belonging to organized society need to conform to societal dictates cannot be treated as exceptions to general principle of law and be allowed to defy societal moorings for personal satisfaction, pleasure or male company.
In civilized society, much as people may feel otherwise, the license to practice legal sex can only be enforced through marriages. Although persons may cohabit without marriage, this does not have legal validity and enforceability. Children born through cohabitation may not have similar rights as natural progeny have.
One could argue that marriages could also be seen as a license for couples to indulge in sexual pleasures and may not be for procreation. However, the right whether to have, or not have children, are personal and individualized decision as seen in the case of Griswold v. Connecticut 405 US 438 (1972).
In this case, the Court invalidated the law seeking to ban the use of contraception in marital sex among married couples. The laws are more concerned about the need to ensure bedroom privacy in order to maintain the sanctity and inviolability of the institution of marriages rather than identify and punish seemingly social misdemeanors and transgressions by married couples. Moreover, it is also felt that the choice whether to have or delay children are highly individualistic decisions and personal choices and the state cannot transgress on this right.
The aspect is not one of privacy or intrusion, protection of fundamental rights or privileges. It is one of preserving morality, highest standards of ethics and puranitical character, and the need to preserve moral chastity in deed and actions. Though incest, bestiality, public orgies and other forms of deviant behavior may not be innately harmful to the performers or to society, it could be seen as condescension of society, to the lowest morass of depravity and total abortion of socially accepted values and cultures. It would become necessary for revolutionary social changes to rid society of its malaises and usher in a clean and sanitized social build up.
The physical act of cosanguinary sex, homosexuality or bestiality is not an evil. It is the thought process that initiates and facilitates it that is more dangerous to society. Thus, its perpetrators could be seen more as mentally debilitated or sick rather than physically in need of human company.
Unnatural sex of any form or manner, outside the institution of marriage, is deemed to be a criminal act and deserves to be condemned and punished. However, in the case of Eisenstadt v. Baird 405 U.S. 438 (1972), the Courts held that the law seeking to distribute condoms, outside use made by medical professional was invalidated. “Married couples were entitled to contraception under the Court’s Griswold decision. Withholding that right to single persons without a rational basis proved the fatal flaw.”
- There may be instances when minority same sex couples, mainly males, may be singled out for condemnation by a majority heterosexual jury, due to their personal sexual preferences. However, it is felt that personal preferences of Courts need not cloud the verdict and it is to be ensured that each case needs to be examined and decided on the merits of the case, and not any other considerations, factual or otherwise.
- Citizens of a free country are entitled to privacy in their bedrooms and it would be something ridiculous for law enforcers to encroach and intrude into one’s privacy in the bedroom. The right of privacy needs to ensure that citizens are protected during sexual activities in the inviolability of their homes.
- Society endows its citizens with a clear choice for seeking preferences, especially sexual ones. Therefore, a person’s sexual choices need not be an impediment to his social status or lifestyle. The privileges and rights available to heterosexual couples who seek anal satisfaction need also be meted out to homosexual partners
- Constitutionally Guaranteed Fundamentally rights need to be not only in paper but also in conduct of law enforcers and the jury pronouncing them.
In retrospect, it could be said that the issue in this study deals with a fundamental aspect as to whether same sex persons (married or otherwise) should be allowed to practice their sexual preferences, just as heterosexual partners do. Or is their choice of partners a sign of deviation or something to be looked condescendingly upon.
The Lawrence case deals with same sex male sexuality. It deals with consensual adult partners who are both aware of the health and other risks entailed in such relationships.
A co-sanguinary relationship, whether heterosexual or homosexual, is outside the purview of Lawrence case since the latter dealt with same sex relationships. Similarly, in the case of bestiality, the question of mutual consent does not arise.
The differences between incest, bestiality and fellatio could be seen in terms of the intentions and conduct of the parties. The fact that it is an animal or a human being does not really matter.
Conclusion
It would be far-fetched to draw up hasty and undocumented facts regarding homosexuality since a lot would depend upon the merits of the case and the psyches of the parties involved.
The differences between homosexuality, incest, bestiality is only one of degree and intensity and not necessarily, absence of the evidence of unnatural behaviour. It is seen that with changing times, a lot of liberalism have come into the laws governing sexual moorings and code of conduct to be observed by consenting adults, but the fundamental truth remains that deviant behaviour, heterosexual or otherwise shall be viewed with disparagement.
Cited Works
Howard Ball, The Supreme Court in the intimate lives of Americans: Fundamental rights versus State interest –The Balancing process: P.8. 2008. Web.
William Van Alstyne : Closing the circle of constitution review from Griswold v. Connecticut to Roe v. Wade : An outline of a decision overruling ROE. 2008. Web.
Findlaw. (2002): Supreme Court of the United States: Lawrence et al v. Texas: P.5. 2008. Web.
US Supreme Court Media: OYEZ: Eisenstadt v. Baird: Conclusions. 2008. Web.