Sexual morality and Texas

In typical discussions of morality, two topics tend to come up more than most: sex and abortion. Obviously the two are related — without the former you would not have the latter, but also, and obviously, without the former, you and I would not exist. This discussion will also focus primarily on the former.

The general ideas of morality surrounding both topics tend to be derived from religious views: centuries and millennia-old ideas that have been, for lack of better words, pounded into the heads of unwavering and, for the most part, unquestioning followers from pulpits by charismatic individuals who are, themselves, only pushing an agenda also pounded into their heads decades earlier by similarly-charismatic individuals.

For the most part in recent jurisprudence, the Courts have struck down a lot of morality laws that have no firm basis in reality and no benefit to society. In 2003 the Supreme Court of the United States targeted and overturned the laws of the State of Texas that criminalized sodomy. Yesterday it was revealed that the Texas GOP wants Congress to exercise its authority under the Constitution to limit the jurisdiction of Federal courts to exclude cases involving sodomy laws.1Article III, Section 2: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (emphasis added) 2Garcia, Ivan. (2010, June 19). "Texas GOP Wishes to Punish Straight People Who Support Gay Rights".

So why the need to criminalize through the penal code homosexual conduct? It is a standing principal of common and statutory law that conduct which is not explicitly forbidden by law is allowed — i.e. a person cannot be prosecuted for conduct, even if the conduct is unwelcome or deemed "evil" through whichever religious belief system you happen to subscribe, if there is not also a law expressly proscribing such conduct.

Or to quote the jocular, "Everything which is not forbidden is allowed".

Texas currently has laws on the books criminalizing "deviant sexual conduct" between homosexuals.3Title 5, Sec. 21.01 of the Texas Penal Code Several other States have similar laws, along with laws criminalizing other forms of sexual conduct, such as adultery and fornication (sex outside the confines of marriage). Some States adopted a wide definition of sodomy to include not just anal sex, but to essentially criminalize all sexual conduct that is not vaginal sexual intercourse.

All laws criminalizing sodomy were deemed unenforceable by the Supreme Court of the United States in the 2003 decision Lawrence v. Texas4539 US 558 (2003):

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives.

The fight against laws regarding sexual activity arguably started with the 1965 decision by the Supreme Court in Griswold v. Connecticut5381 US 479 (1965), which overturned laws that sought to criminalize the distribution of contraceptives. The scope of the decision was limited only to married couples, a limitation the Supreme Court would vacate in 1972 with Eisenstadt v. Baird6405 US 438 (1972), which overturned invariably any criminal law that sought to criminalize the distribution of contraceptives to any adult, married or not:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.7405 US 438, 453

Then in 1973 came the ever-controversial Roe v. Wade8410 US 113 (1973) and Doe v. Bolton9410 US 179 (1973) decisions.

For centuries the relationship between the morality and criminality of actions has been debated, discussed, dissertated, opined, and argued with only one consistent outcome being reached: the immorality of an action does not justify its criminality. To warrant a criminal law proscribing conduct, society itself must be harmed by the conduct in question.

Thus the question stands: how is society harmed by homosexual activity?

I contend that society is no more or no less harmed when two (or more) consenting homosexual adults, whether they all be male or female, engage in sexual activity, just as society is no more or less harmed when two (or more) consenting heterosexual adults engage in sexual activity. However the question is not mine to answer.

Those who seek to impose their own view of morality on the general public through the enactment of criminal and penal laws are the ones who must answer the question.

Taking the Lawrence and Baird decisions together, it can be said that the State has no business criminalizing sexual activity between two or more adults, married or not. With such a conclusion I would most definitely agree. The question of morality need not be resolved, but when such questions of morality are brought into the politically-charged arena of the state legislature, chaos invariably erupts with oppression cast upon those whose morality point of view falls in the minority point of view of those serving in the legislature.

It is the protection against such oppression the Constitution is designed to protect.