In Lawrence v. Texas, proponents of judicial activism in the cause of liberal ideological goals are asking the Supreme Court of the United States to do something the justices have never done before: Throw the mantle of constitutional protection around a type of non-marital sex act.
The Supreme Court has never recognized a right to fornication, adultery, or any other form of sexual misconduct. True, it has included within a generalized right of privacy a right of married and even non-married people to purchase and use contraceptives; but the justices have made plain that their rulings in the contraception cases do not protect illicit sex acts. In Griswold v. Connecticut (1965), the Court ruled that prohibiting contraceptives to married couples interferes in a damaging way in the marital relationship and is therefore not a constitutionally permissible way of combating adultery or other forms of sexual vice. In Eisenstadt v. Baird (1972), the justices held that pregnancy, or the risk of pregnancy, may not be used as a means of punishing or deterring fornication. Nothing in either case forbids states from banning outright adultery, fornication, or other immoral sex acts. On the contrary, as constitutional scholar Gerard Bradley has noted, Eisenstadt and other cases expressly acknowledge the authority of government to prohibit such acts.
In Bowers v. Hardwick (1986), the Court explicitly declined to create a right to homosexual sodomy. (The justices did not address the question of heterosexual sodomy, inside or outside of marriage, since it was not necessary to do so to resolve the case.) If, as the petitioners in Lawrence demand, the Court now reverses Bowers and manufactures a constitutional right to sodomy (as a specification of the right of privacy or on some other basis), it will be a truly radical departure — granting constitutional protection to a type of non-marital sex act (indeed, in this case, an intrinsically non-marital act).
In the event that it takes such a step, the Court will face a question: If some types of non-marital sex acts are protected by the constitution, and others are not, what is the principle or criterion (allegedly derived from the Constitution itself) by which judges are to decide which types merit protection and which do not?
Under prevailing law, the marriage relationship enjoys constitutional protection; sex outside the marital bond does not. This does not mean that states are obligated to criminalize all or any extramarital sex acts. What it means, simply, is that it is up to the states to decide whether to ban any such acts, and, if so, which ones. In making the determination to forbid or tolerate this or that form of sexual misconduct, be it fornication, adultery (with or without spousal consent), sodomy, prostitution, consensual adult incest, etc., legislators are free to bring to bear their best prudential judgment in weighing the pros and cons of alternative policy options. As with the regulation of gambling and drugs, the federal courts claim no jurisdiction to interfere in the policymaking process.
But if the Supreme Court dismantles prevailing law, with what criterion or set of criteria will it replace marriage as the principle by which courts distinguish constitutionally protected from unprotected sexual conduct? Some plausible alternative principle must be identified to justify the judiciary’s authority to displace legislative judgments.
The leading alternative is the notion of consent. Fundamental social libertarians hold that acts of any type, including any type of sex act, should be legally permissible so long as the parties involved consent to participating in them and others are not directly harmed. Those who believe that the founding fathers wrote the ideology of fundamental social libertarianism into the Constitution (albeit with invisible ink) maintain that the constitutional right of privacy immunizes all consensual sex acts from state prohibitions.
If this is true, then not only sodomy, but also fornication, adultery (e.g., spouse swapping, “swinging”), polygamy, group sex, prostitution, adult brother-sister or parent-child incest, and (depending on one’s views about the rights of animals and their capacity to consent) bestiality are protected as specifications of the constitutional right of privacy. All of these acts and practices are, or can be, consensual. If consent provides the standard of inclusion within the right of privacy, they must all be admitted.
Pennsylvania Senator Rick Santorum caused a firestorm recently simply by pointing this out (as had Justice Byron White, the John F. Kennedy appointee who wrote the Court’s opinion in the Bowers case). Democratic partisans and opponents of traditional norms of sexual morality jumped on him with accusations of “intolerance” and “bigotry.” A few Republican “moderates” piled on. But where is the flaw in the premises or logic of Santorum’s (and Justice White’s) argument? Can his critics identify a principle by reference to which sodomy falls within the ambit of constitutional protection and other non-marital sex acts fall outside it?
Clearly the idea of consent cannot provide such a principle. Nor can the concept of tradition, for no type of non-marital sexual conduct is sanctioned by “the history and conscience of the American people.” On the contrary, our tradition is precisely to treat marriage as the principle of rectitude in sexual matters, and to single out the marital bond for unique legal protection.
So, if neither marriage, nor consent, nor tradition provides the criterion for deciding which forms of consensual sexual conduct are to enjoy constitutional protection and which are not, then what does provide the criterion? If Sen. Santorum is wrong to suggest that there is no such criterion, his critics should be able easily to refute his argument by producing it. Why haven’t they done so?
They haven’t done so, and won’t be able to do so, because Rick Santorum is right: There is no principle that courts can employ in picking and choosing among the range of possible consensual non-marital forms of sexual conduct for purposes of assigning constitutional protection. If marriage is overthrown as the principle that distinguishes protected from unprotected conduct in matters of sexuality, it will have to be replaced, in the end, by the idea of consent. No non-arbitrary grounds will be available for deciding that sodomy and fornication are “in,” but consensual adultery, group sex, commercial sex, etc., are “out.” The rational pressure for consistency will move courts in the direction of imposing by judicial fiat the agenda of fundamental social libertarianism. And that was Rick Santorum’s point.
Advocates of sexual liberation will say, of course, that retaining marriage as the criterion of constitutional protection is unfair since persons of the same sex cannot legally marry each other. But this objection reveals their ultimate goal: the destruction of marriage as it has been understood in Western law and culture and the substitution of a new concept in line with sexual-liberationist ideology.
This ideology is deeply hostile to the idea of marriage as uniting one man and one woman in a permanent bond of the type that is per se suitable for the generation, nurturance, and upbringing of children. Yet it is the fact that marriage is naturally ordered to the generation, nurturance, and upbringing of children that largely justifies the law’s concern with marriage at all. No society can afford to be indifferent about the terms and conditions under which children are brought into being, cared for, and guided into adulthood.
What sexual liberationists, “gay” or “straight,” wish to abolish is the legal concept of marriage as a “one-flesh union” made possible by the sexual complementarity of a husband and wife whose physical union is the biological basis of the comprehensive sharing of life that marriage is meant to be. This concept of marriage has deep intellectual roots in both Jerusalem and Athens — in Biblical principles and the great Western tradition of philosophical reflection. Today, however, it is considered outdated by people who view sex as essentially a matter of satisfaction seeking and marriage as a mere legal convention that can be revised and redefined to accommodate the range of subjective sexual “preferences” people happen to have.
Anyone who recognizes the critical significance of strong marriages and families to the well being of children and the social health of the nation should shudder at the prospect of a radical redefinition of the already much-battered institution of marriage. Although we are only a little more than 30 years into the sexual revolution that began in earnest in the 1960s, the legacy of sexual-liberationist ideology is measurable in ruined relationships and broken lives. We need policies that uphold and strengthen marriage, not those that further erode it in our law and culture. On this, too, Rick Santorum is right.
— Robert P. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University. His most recent book is The Clash of Orthodoxies.