European Stars And Stripes (Newspaper) - July 14, 1986, Darmstadt, Hesse                                Page 10 columns the stars and stripes monday july 14.1986 Anthony Lewis anti sodomy decision seen in a different Light it is Midnight in a push a Llama suburb. Joan and Tom Doe Are in bed. Suddenly three half police men burs into he bedroom. Flashlights catch the docs in what Georgia Law Calls illegal sex. They an arrested. Prosecuted convicted and sentenced to 10 years in the Penitentiary. Thai scenario has not happened i is not Likely to. But inc Georgia sodomy Law upheld by the supreme Conn makes no distinction Between homosexual and heterosexual conduct. It condemns Oral and anal sex by anyone punishing it by up to 20 years in prison. Looking at the Georgia Law Asil is actually written puts the supreme court decision in a different Light from inc one in which in has been widely viewed. In that Light 1 wonder whether the self styled conserva Tives who applauded the decision knew what they were doing. The Georgia Case was brought by Michael hard Wick a homosexual who asked the Federal courts to declare inc state Law . The supreme court dealt with his suit in a Way that showed the truth of the Legal adage that he who defines the question often determines the answer. The 5-Tcm majority said Hardwick was asking Chr supreme court to find in the Constitution a fundamental right to engage in homosexual Sodo  just ice Byron r. While speaking for he court dismissed that claim As one denied by history. Laws against homosexual ads he said have ancient  chief Justice Warren e. Burs a separate opinion. Spoke of millennia of moral teaching but morality docs not solve inc real problem in the Case. So we can Sec if we look Back to the greatest of modern conservatives on the supreme court inc Laic John Marshall Hartan to his opinion when the court in 1961, first considered a connect icel Law Mak ing it a crime to use contraceptives. Justice Hartan rejected inc claim that Stales have no business writing moral precepts into Law they do that All inc time he said. But when a state expresses i moral views by regulating behaviour he said the crucial Issue Tor constitutional judgment is its Choice of  Connecticut Marian said is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full Power of the criminal Law. Potentially this could allow the deployment of All the incidental machinery of the criminal Law arrests searches and  and there exactly was the real Issue in inc Georgia Case the intrusion of the criminal Law into the bed William Buckley wr�,i1hink Haw our Weer room. The Constitution does not mention  but it protects Liberty from stale deprivation with out due process of Law. And As Harlan said the privacy of the Home in its most Basic sense must be a fundamental part of Liberty " if the Georgia authorities had prosecuted and convicted a married couple under the sodomy Law the supreme court would surely have had o face the real Issue the state s intrusion into the bedroom. A Georgia couple calling themselves Doe in fact tried to join the Case but the lower courts held that they lacked standing similarly if a homosexual had actually been convicted and sentenced under the statute the supreme court would have found it More difficult to void seeing the real character of the Law. Indeed Justice Lewis f. Powell said that a conviction and sentence of Long duration would raise a question of cruel and unusual punishment in violation of he eighth Amend Mentro the Constitution. But Michael Hardwick was not convicted of any thing. He was arrested after being discovered in Homo sexual activity but Georgia prosecutors declined to press the Case. He then brought his civil suit against he statute. I is an old Rule a conservative Rule that the supreme court will not decide constitutional Issaa in the abstract. Concreteness brings meaning to the it sues. Yet Here the court rushed to pass judgment on a criminal Law that Wai not pressed Agamet Hardwick and has not been used against anyone Tor decade. The Hafi Dwick Case will be seen i believe As a classic example of the a Wisdom of taking constitutional issues to the courts prematurely. White made a Point of saying but the court was not pining on the desirability of us like Georgia s. Bui the Lale Alexan Der Bickel reminded i thai the supreme court it a legitimating Force Loo. If the Unne Cenary sodomy decision does anything it will lend to legitimate Ala Vistic altitudes in our society. Hufi court Correct in upholding Georgia Low there cant Ever have been a better Opportunity for the supreme court to decline to serve As National legislature than Bowers v. Hard Wick in which the majority said to the respondent if Georgia has a Law prohibiting homosexual sodomy thai is the business of Georgia not the business of the supreme court. Professor Lawrence tribe of Harvard who argued the Case for the unconstitutional Ity of the sodomy stat Ute was Quick to denounce the court. Of he said he was t really surprised by the ruling because after All this is a conservative  but if a definition of a cons Rva live court is to be one that acknowledges its duties under the Constitution As also its limitations under the Constitution then conservative courts should be welcomed by All who believe in the separa Tion of Powers. Justice while in his majority decision could not have written More lucidly. He began by saying that the decision of the majority had nothing to do Wilb the majority s views on whether the anti sodomy statute was Wise or desirable. The Issue was whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidate the Laws of the Many Stales that still make such conduct Ille  Justice while reminded us that All 13 slates that enacted the Bill of rights had anti sodomy statutes and thai As recently As 1961, All 3d slates had such statues which remain nowadays in the books of 24 slates and the District of Columbia. An interesting aspect of Bowers is that a the officer who arrested Hardwick entered his quarters to serve a warrant unrelated to sexual activity b that seeing him engaged in an illegality tie had to As he put in bring him in and c the magistrate dealt perfunctorily with the offence in effect leaving Hardwick to re turn to his Lover 11 was Hardwick who then look the initiative seeking to declare that statute Unco Stilu ti"9nal, and persuading a court of appeals to concur with him in that judgment. Two things would appear to be sociologically obvious. The first is thai if Between 1961 and 1986, 26 states actually repealed their anti sodomy statutes then we arc not dealing with ancient Laws so Frozen in place that no one dares dislodge them. The second is thai where a state has not got around to dislodging the statute it is in fact not prosecuted. Now Justice while canvassing the Constitution and traditional Law and finding in in no suggestion of any fundamental right to homosexual sodomy declined to invoke the due process clause of the fifth and 14th amendments. Otherwise the judiciary necessarily takes to itself further authority 10 govern the country without express constitutional authority it is interesting to note the general dismay of the Gay Community. Insofar As the decision s critics Are saying that no warrant should Ever be issued that entitled an officer to walk into the bedroom to examine the nature of a sexual act those critics Are Quali Ledly Correct. The qualification of course must allow for investigating complaints against incest or bigamy. But although most people Are thoroughly in sympathy with the no lion that the bedroom ought to be private what Dis Mays the Gay Community most is the Subtle affirmation of homosexual sodomy As aberrant behaviour. Obviously no statute seeking to bar heterosexual relations even if heterosexual sodomy were involved would have got by the court intact. There is the court is then saying a historic differ ence Between the heterosexual and the homosexual relationship. It May be thai we arc entering an age in which that difference under conventional Law disappears. But if that is going to happen Ihnn its disappearance needs to be codified rather than merely presumed out of a general advocacy of the rights of privacy. The bearing on the abortion cases is obvious and in is Odd that professor tribe s conservative court should on be one hand reaffirm the abortion decision As the present court did Only a few weeks ago and in � separate context Rule that the Constitution says Noth ing at All about the right of privacy s Superordinate authority Over the right of Legislatures 10 write Laws governing general human behaviour the happiest of All solutions now would be for Georgia to repeal its dead and smelly Law As also the other states but for the rest of us u rejoice that the supreme court seems to be finding its moorings. Cd Unhwa Lerua Apo Kilt to a phone Kush my h arum Toa wet nmn Tow pig  Gnu of Tea if wit ind to no w j to m thu Piid u rap 105 tit Towt of to Estiu St non Orn nud sum do wimm