A No To Sodomy

Whatever the outcome of the death penalty argument, the Supreme Court rendered a surprising and unexplained decision in a different sphere of law last week: sodomy. By a vote of 6 to 3 the high court summarily ruled that a Virginia sodomy statute was constitutional. That action, unaccompanied by any written opinion, left civil libertarians and homosexual activists thunderstruck.

The court in recent years has been expanding the right to privacy in sexual matters, and sodomy laws seemed a plausible next target. American Civil Liberties Union lawyers for John Doe and Robert Roe, two anonymous homosexuals, decided to challenge the Virginia statute before a Richmond three-judge federal panel, though the two had not been charged with any offense.

Judge Robert Merhige, 57, thought that previous U.S. Supreme Court decisions meant that "private consensual sex acts between adults are matters, absent evidence that they are harmful, in which the state has no legitimate interest." But Judges Albert V. Bryan, 76, and Oren R. Lewis, 73, held that the state could ban such conduct because it "is likely to end in a contribution to moral delinquency." It was their ruling, though not necessarily their reasoning, that was upheld by the high court last week. The three dissenters would have heard full arguments before handing down a decision that now stands as a national precedent.

Quickly, the National Gay Task Force, which paid some of the litigation costs, criticized the decision as a product of "homophobia." The ruling might also have application to large numbers of heterosexuals. The Virginia statute, like most sodomy laws, specifically prohibits not homosexuality but anal intercourse, fellatio and cunnilingus no matter the sex of those engaged in such acts. Various sex surveys report that perhaps 80% of all U.S. adults have engaged in at least one of those.

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