“Go forth and be fruitful”
Prohibiting non-reproductive sex: sodomy, age of consent, and same-sex marriage
(Law and morality, Part 3)

Recently, in Lawrence v Texas the US Supreme Court struck down a state sodomy law, as it applied to consensual acts in private, as an infringement of the Constitutional due-process right to privacy. The case arose when police responded to a misreported disturbance and burst into a private apartment to find two men intimately engaged, and - rather than leaving with a shame-faced apology - arrested them.

To overturn the law, the Court had first to overturn its own precedent in Bowers’ case, which had previous upheld state laws prohibiting sodomy. There is some fine prose in the joint majority judgement of Justice Kennedy:

“ … Bowers [began] as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." ... That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

“This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

The law can indeed, occasionally, produce inspiring prose.

The US case I found more disturbing was, Limon v Kansas involving consensual oral sex between two intellectually disabled teenage boys, one of whom was sentenced to 17 years. (Some state laws in the US include oral acts in the definition of sodomy, and cover acts between persons not of the same sex.) This law was struck down under Lawrence as an infringement of principles of equality: if one of these boys had been a girl, a “Romeo and Juliet” clause would have applied. Under such laws, where “sodomy” occurs between opposite-sex teenagers, a significantly lighter sentence may be meted out.

It is hard to see these laws as doing anything other than trying to prohibit all non-reproductive, penetrative sexual acts. It’s legislating a code of sexual behaviour that goes far beyond prohibiting violence, abuse and incest.

As a result of Lawrence many, of all orientations and political creeds, see same-sex marriage as the next step. Underlying the existence of sodomy laws, laws requiring a higher age of consent to homosexual acts and laws that do not acknowledge marriages other than those between a man and a woman is a similarly bigoted social consensus whose epoch has passed. The social and legal prohibitions on pre- or extra-marital, and especially non-reproductive, sexual acts served a blunt social purpose.

Some 37 US states have passed “defence of marriage” acts, to prohibit marriages other than between one man and one woman, citing the “need” to defend marriage and “traditional” families. (We might think of the Australian government’s mean-spirited approach to superannuation law reform, refusing the gay partners of deceased persons equal rights in their superannuation, to “defend” the family.)

Legally acknowledged or not, the range of possible family structures has already exploded. All children, however raised, should have the same dense web of legal certainties and safeguards that surrounds those of heterosexual couples. The law’s protection already extends to de-facto (straight) couples and their children, why doesn’t the marriage analogue extend to same-sex cohabiters?

Ultimately, though, it’s about more than child-raising. Heterosexual couples may marry without raising children, and with effective contraception may chose to remain childless. Why then should the law privilege cohabiting relationships merely by reference to their odds of procreating?

Our laws should really reflect the irrelevance of who does what to whom by consent and in private and get on with the business of dealing sensibly with social change that is well beyond holding back.