Michael Gaynor
"Same-sex marriage" is a state option, not a constitutional right
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By Michael Gaynor
April 3, 2013

To transform constitutional protection of the homosexual lifestyle into constitutional recognition of "same-sex marriage" would be a judicial travesty that would violate the Tenth Amendment rights of the states and the people and diminish the Supreme Court.

In Bowers v. Hardwick, 478 U.S. 186 (1986), the United States Supreme Court upheld the Georgia sodomy statute. Michael Hardwick was arrested and charged with sodomy for engaging in oral sex with a consenting male adult in his home. A police officer was let into Hardwick's home to serve a warrant and saw the sexual act. Although the state prosecutor declined to prosecute the case, Hardwick brought suit in federal court asking that the statute be declared unconstitutional.

The Supreme Court upheld the sodomy law, 5 to 4. Writing for the majority, Justice Byron White rejected the argument that previous Supreme Court decisions on abortion and contraception had created a right of privacy that extended to homosexual sodomy. Instead, the Supreme Court sharply distinguished between the previous cases, which involved "family, marriage, or procreation," and homosexual activity.

The Supreme Court rejected the claim that there is a fundamental right to engage in homosexual activity, noting that prohibitions against sodomy were in the laws of most states since the founding of the nation.

In 2003 the Supreme Court reversed itself on the issue of sodomy in Lawrence v. Texas, 539 U.S. 558. The Supreme Court, 6 to 3, invalidated a Texas anti-homosexual sodomy law by invoking the constitutional rights to privacy to protect private homesexual conduct from criminalization, not to force states and/or the federal government to approve it.

Ten years later the Supreme Court is being asked to rule that same-sex marriage is a constitutional right.

The points succinctly made in the syllabus provided with the Supreme Court decision in Bowers are especially noteworthy now:

"Held: The Georgia statute is constitutional. Pp. 190-196.

"(a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Pp. 190-191.

"(b) Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. Pp. 191-194.

"(c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance. Pp. 194-195.

"(d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result. Stanley v. Georgia, 394 U.S. 567, distinguished. Pp. 195-196.

"(e) Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. P. 196."

To the claim that the sodomy laws lacked a rational basis, the Bowers Court responded:

"Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis."

To the claim that its decision in Stanley v. Georgia, 394 U.S. 557 (1969) protecting possession of obscene material at home, supported invalidation of sodomy laws, the Bowers Supreme Court replied:

"Stanley v. Georgia...held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one's home:

If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.

Id. at 565.

"Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment."

Likewise, "same-sex marriage" "has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment."

To the appeal to be activist, the Bowers Court responded:

"Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance."

Likewise, it is not for the Supreme Court to create a constitutional right to "same-sex marriage."

As the Supreme Court stated in Moore v. East Cleveland, 431 U.S. 494, 503 (1977), fundamental liberties are "deeply rooted in this Nation's history and tradition."

"Same-sex marriage" certainly is not "deeply rooted in this Nation's history and tradition," and Lawrence did not pretend that a right to homosexual sodomy is. Lawrence emphasized that it was protecting personal liberty, not redefining marriage. It stated:

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

and

"The present case does not involve...whether the government must give formal recognition to any relationship that homosexual persons seek to enter. 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 State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

There is no claim that the liberty right "to engage in their conduct without intervention of the government" also requires the State to approve it by redefining marriage to include "same-sex marriage."

To transform constitutional protection of the homosexual lifestyle into constitutional recognition of "same-sex marriage" would be a judicial travesty that would violate the Tenth Amendment rights of the states and the people and diminish the Supreme Court.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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