Liberty in Privacy

In Indiana several years ago. a wife settled a fight with her husband by having him arrested for sodomy, "the abominable crime against nature" that is forbidden by nearly all the 50 states. Result: the husband received a maximum 14-year prison sentence for doing what many people now regard as unobjectionable. Fortunately for him, a federal court of appeals reversed his conviction, implying that Indiana's anti-sodomy law itself might well be unconstitutional.

A three-judge federal court in Texas has now made that implication explicit by throwing out Texas' sodomy statute as an unconstitutional invasion of privacy. At issue was a suit by a Dallas homosexual who was seeking to set aside the statute under which he had been arrested for sodomy in public rest rooms. What preoccupied the court, though, was an intervention by Mr. and Mrs. Michael Gibson, a Dallas carpenter and his wife, who joined the homosexual's case in order to determine whether sodomy is legal for married heterosexuals.

The opinion, written by U.S. District Judge Sarah Hughes, cited the Supreme Court's decision in Griswold v. Connecticut (1965), which held that a constitutional right of privacy protects married couples from prosecution for using contraceptives. "Sodomy is probably offensive to the vast majority of people," wrote Judge Hughes, but that is "not sufficient reason for the state to encroach upon the liberty of married persons in their private conduct."

Judge Hughes' decision, which will probably inspire similar suits in other states, left Texas with no significant laws against sodomy. But not for long. Noting that the judge avoided any specific ruling on sodomy in public places, the Dallas city council immediately passed an ordinance making that act a crime. Houston has just followed Dallas' example.

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