"The Individual Is Sovereign"

By Otto Friedrich

Not everyone will agree with this, but for the sake of argument let us stipulate that homosexuality and other variant forms of sex are distasteful and should generally be discouraged. Let us also stipulate that the kind of pornography that flourishes in most cities is also distasteful and to be discouraged. Now even if this were all true -- and a majority of Americans think it is -- does it mean that the forces of law and government should proclaim such sexual activities illegal and threaten all offenders with prison terms? More generally, does it mean that the permissiveness of the past 20 years has finally gone too far, particularly in its blatant public displays, and that the government has a moral duty to call a halt? That certainly seems to be the implication of the Supreme Court's ruling on a Georgia sodomy case two weeks ago and of the Meese commission's report on pornography last week. If so, these are very questionable judgments on a very complex problem.

Granted that the government has a right to interfere if anyone is being injured or coerced, the history of official efforts to regulate sex is a long and fairly unhappy one. Both sides invoked it in the sodomy case. "Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards," said Chief Justice Burger in concurring with Justice White's majority opinion. "Homosexual sodomy was a capital crime under Roman law . . ." The same line of argument could presumably be made to support slavery, and Justice Blackmun's dissent offered a spirited rebuke from Oliver Wendell Holmes Jr.: "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished."

Customs do change. Babylonian law decreed drowning as the proper punishment for a woman accused of adultery, but if she floated after being forced to jump into a sacred river, she was judged innocent. In the Middle Ages, someone who had sexual relations with a Jew could be punished by burial alive; adulterers were flogged through the streets, prostitutes had their noses slit, and men were burned alive for having sex with dogs, goats, cows, even geese.

In the Enlightenment of the 18th century, the Austrian Empress Maria Theresa appointed a troop of spies known as Commissioners of Chastity to enforce her prim views. Said the irrepressible Giacomo Casanova: "They carried off to prison, at all hours of the day and from all the streets of Vienna, poor girls whom they found alone, who in most cases went out only to earn an honest living." Sodomy was long considered a capital offense, and the Marquis de Sade was sentenced to death for engaging in it. Hitler threw homosexuals into concentration camps. In recent years the resurgence of Islamic law means that adulterers face flogging in countries like Iran, Saudi Arabia, Pakistan. And down through the centuries, despite all the decrees, people have gone right on, of course, enjoying sex as best they could.

Perhaps the most persuasive case against government intrusion into most areas of private morality was made by John Stuart Mill in his 1859 essay, On Liberty: "The only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his own mind and body, the individual is sovereign." The framers of the U.S. Constitution seem to have had similar views in mind when they declared in the Ninth Amendment that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This, plus the 14th Amendment's due-process clause, was the basis for the Georgian's plea in the sodomy case.

For more than a half-century, the Supreme Court has been proclaiming and broadening a constitutional right to privacy, which Justice Brandeis described in 1928 as "the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized man." Justice Douglas reasserted that idea in a landmark 1965 decision striking down a law forbidding married couples to use contraceptives (Griswold vs. Connecticut). Said he: "The First Amendment has a penumbra where privacy is protected from governmental intrusion."

Implicit in all these controversies over sexual privacy has been the admirable social goal of protecting and supporting the family. The traditional religious taboos probably once had a similar goal. Government lawmakers simply followed that tradition (Burger's "Judeo-Christian moral and ethical standards") when they tried to ban lewd movies or lewd whatever, and the Justices did much the same, even in their Georgia sodomy ruling.

This tradition ignored the changes brought by birth control, and the fact that most sexual activity has very little to do with procreation. But it seems to have been a convenient justification for government action -- or inaction. Though the Georgia homosexual was never prosecuted, he challenged the convenient tradition itself by claiming that the constitutional right to privacy applied to him as well as to anyone else. There had, after all, been no children involved, no victim of any kind, no coercion, no public misbehavior. In such circumstances, doesn't a free citizen have a right to do as he pleases? One can sense a certain irritation over such a "gay rights" claim in the brusque rejection by Justice White. It is, said White, "at best, facetious."

Supporters of gay rights quite naturally criticize the court's decision, but there is a more fundamental point in Justice Blackmun's dissent. "A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices," he wrote. "It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority." In this, Blackmun was echoing a famous argument by Holmes: "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate."

In some senses, sex is also an idea, subject to all the competing influences of love and hostility, of persuasion and rejection, of enthusiasm and anxiety, of conformity and ridicule. It generally ends in conditions of privacy; and the right to privacy, "the right to be let alone," includes a rule that says, Uncle Sam, and all other uninvited guests, please keep out.