There Really Is a Monster Under the Bed -- Big Brother

In Texas, they like their barbecue hot, their oil sweet and their sex straight. Of course, only one of these preferences is set by law: sex.

In a case now under consideration by the U.S. Supreme Court, two Texas men are challenging their criminal convictions for having consensual sex in the home of one of them.

The case could reverse a controversial 1986 Supreme Court decision that upheld the right of states to dictate the way citizens engage in consensual sex. Since then, 13 states have tried to regulate conduct in the bedroom, creating a type of morals police now found in those states and such like-minded jurisdictions as Iran.

In September 1998, John Lawrence and Tyron Garner were in Lawrence’s Houston apartment when state police barged in.

Apparently an acquaintance had called in a false report of an armed intruder. The two men were arrested for violating the Texas’ “homosexual conduct” law.

The acquaintance was given a 30-day jail sentence for making a false report, and Lawrence and Garner were convicted of a criminal misdemeanor and fined.

Under its 28-year-old law, Texas bans sodomy only between same-sex partners. It is one of four states that confine such morality crimes to the prosecution of homosexuals. Nine other states prohibit certain acts, including oral sex, by any consenting adult.

There may be no greater intrusion of Big Brother into private lives than the regulation of the way that adults make love. Yet the local morals police can rely on the U.S. Supreme Court’s infamous 1986 decision upholding a Georgia law that prohibits a variety of sexual acts between any adults. Despite the fact that one study found that more than 75% of adult Americans reported that they engaged in such criminalized acts as oral sex, former Chief Justice Warren Burger cited “Judeo-Christian moral and ethical standards” and “millennia of moral teachings” in his concurring opinion.

The key swing vote in this 5-4 decision, Justice Lewis F. Powell, later said he had voted the wrong way.

Of course, there are a host of more pressing issues for our police, ranging from snipers to street crime. We hardly need cops looking for unapproved forms of intimacy in our homes as if bedrooms were sexual speed traps.

And the problem with a morals police is determining whose morals will be the template. Atty. Gen. John Ashcroft does not even approve of dancing. Yet, one would hope that Ashcroft, as someone who professes to believe in limited government, would oppose such governmental intrusion into the home. After all, the administration is currently arguing for a constitutional right to gun ownership. It would be curious if the handgun under the bed is the only thing clearly protected in the bedroom.

Even with the post-Sept. 11 expansion of government surveillance of citizens, there must remain some place that we can honestly and safely call our own. Without such a protected space, we simply become vehicles of the shifting interests and tastes of the state.

This fight is not about homosexual rights. It is not even about sex. It is about that most basic right described by Justice Louis D. Brandeis: the right to be left alone.

Ultimately, I care less about my neighbor adopting the sexual habits of the Emperor Caligula than I do about my government adopting his tyrannical habits.

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Jonathan Turley is a constitutional law professor at George Washington University.