# Should gays be allowed to have sex? **URL:** \ **Category:** Great Debates\ **Created:** [December 2, 2002, 9:03pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036 "2002-12-02T21:03:36Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Mighty\_Maximino](https://avatars.discourse-cdn.com/v4/letter/m/e95f7d/32.png) [@Mighty\_Maximino](https://boards.straightdope.com/u/Mighty_Maximino)\ **Post date:** [December 3, 2002, 7:51pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/41 "2002-12-03T19:51:37Z")
> [@](#): > > \*Originally posted by Stonewall\_42 \* > \*\*Making a certain sexual act legal between a man and a woman but illegal between a man and another man is not, in my eyes, equal protection. \*\* I suspect that the Supreme Court agrees with you, or they could have simply denied cert and let _Bowers_ hang on. Actually, I think everyone in this thread so far has agreed on that point. The interesting question will be if they will simply invalidate the law insofar as it makes an act criminal between two men or two women only, and give the Texas legislature the option to make oral and anal sex illegal for _everybody_, or if they’ll strike down the concept of the law entirely. I suspect the latter, but I could very well be wrong. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [December 3, 2002, 7:55pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/42 "2002-12-03T19:55:48Z")
MTGman, thanks for the rundown on the case. My guess is that that the original _nola contendere_ was entered at the urging of an attorney who was looking for the quickest disposition of the case. I still think that the cops were out of line, as were the county court which quashed the appeal and the 14th circuit which overturned the ruling of unconstitutionality. I think this whole thing smacks of institutional homophobia. I will withdraw my blanket condemnation of Texans, but I hope that the publicity in this case will inspire public pressure to repeal these kinds of laws ---
**Author:** ![Dr.Lao](https://avatars.discourse-cdn.com/v4/letter/d/2bfe46/32.png) [@Dr.Lao](https://boards.straightdope.com/u/Dr.Lao)\ **Post date:** [December 3, 2002, 7:58pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/43 "2002-12-03T19:58:36Z")
> [@](#): > > \*Originally posted by Attrayant \* > \*\*Any married heterosexual volunteer Texans willing to get caught in the privacy of their homes engaging in oral sex? I’ll gladly pay the $200 fine for you, but somehow I suspect it won’t even go to court. \*\* It isn’t illegal for heterosexuals to have oral sex in Texas. Texas’s antisodomy law applies only to same sex couples. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 3, 2002, 8:08pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/44 "2002-12-03T20:08:01Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*The Supreme Court disagrees with you on sex outside marriage. _Eisenstadt v. Baird_ (1972) used substantive due process to strike down a ban on contraceptive distribution to unmarried couples (_Griswold v. Connecticut_ did teh same thing in 1965 for married couples). The Court stated that “If the right of privacy means anything, it is the right of the _individual_, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The reach of that holding may be legitimately debated (it doesn’t necessarily apply to “sodomy,” however defined), but the core principle that nonmarried people of opposite sex can screw each other’s brains out is pretty well impregnable. \*\* Pun intended? I don’t agree with your characterization of _Eisenstadt_, whose holding is limited to the distribution of contraception to unmarried individuals. The Court did not consider the statute as having a goal of discouraging premarital sex, and in fact the discussion clearly, if implicitly, recognizes Massachusetts’ right to criminalize fornication. > [@](#): > > As the Court of Appeals explained, “Fornication is a misdemeanor [in Massachusetts], entailing a thirty dollar fine, or three months in jail. Massachusetts General Laws Ann. c. 272 18. Violation of the present statute is a felony, punishable by five years in prison. We find it hard to believe that the legislature adopted a statute carrying a five-year penalty for its possible, obviously by no means fully effective, deterrence of the commission of a ninety-day misdemeanor.” 429 F.2d, at 1401. Even conceding the legislature a full measure of discretion in fashioning means to prevent fornication, and recognizing that the State may seek to deter prohibited conduct by punishing more severely those who facilitate than those who actually engage in its commission, we, like the Court of Appeals, cannot believe that in this instance Massachusetts has chosen to expose the aider and abetter who simply gives away a contraceptive to 20 times the 90-day sentence of the offender himself. The very terms of the State’s criminal statutes, coupled with the de minimis effect of 21 and 21A in deterring fornication, thus compel the conclusion that such deterrence cannot reasonably be taken as the purpose of the ban on distribution of contraceptives to unmarried persons. _405 U.S. 438, 450_ - Rick ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 3, 2002, 8:47pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/45 "2002-12-03T20:47:26Z")
A fun side-note: In the early nineties, there was a bill introduced in our very own North Carolina legislature to legalize oral sex. The bill was crushed in committee by a handful of conservative legislators -somewhere around 10 of them. So our local free weekly went to the legislature and asked each of these nutjobs a question: have you ever practiced oral sex with your husband or wife? The responses were hilarious, ranging from, “Yes,” to, “Um, no comment,” to, “Get the hell out of my office!” Of course, we also had a state legislator who recommended that teens spray their genitals with Lysol after having sex. North Carolina government: a laff a minute! Daniel ---
**Author:** ![Esprix](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/esprix/32/7899_2.png) [@Esprix](https://boards.straightdope.com/u/Esprix)\ **Post date:** [December 3, 2002, 8:50pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/46 "2002-12-03T20:50:11Z")
States’ rights should not trump basic civil rights, especially those of privacy, _especially_ when they do not in any way affect the public. Esprix ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 3, 2002, 8:55pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/47 "2002-12-03T20:55:34Z")
Pun definitely intended, **Bricker**. 🙂 That quote you provided is just part of the Court’s search for a compelling state interest, a required part of the due process scrutiny of the state’s anti-contraception statute. (That explanation, of course, is for the benefit of the non-lawyers in the audience.) It’s inconceivable that the fornication statute could withstand due process scrutiny if–as the Court flatly states in _Eisenstadt_–individuals have a fundamental due process right to bear or beget children, regardless of marital status. And since _Eisenstadt_ also establishes that those individuals have the right to obtain and use contraceptives, there can be no question that there is no requirement that the purpose of the sex must be procreative in purpose. The Court wasn’t considering the fornication statute, so it’s no surprise that it avoids ruling on its validity. It’s just that the analysis of the contraception statute makes it clear that the fornication law would not survive constitutional challenge. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 3, 2002, 9:02pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/48 "2002-12-03T21:02:59Z")
Esprix: If we adopt the view you urge, the basic concept of a dual-sovereign system is lost. I grant that we have been slowly moving in that direction, but I don’t agree it’s the correct one. It seems to me that a state ought to be able to prohibit such practices if it chooses. If there is sufficient outrage over the prohibitions, the citizens of the state have an easy recourse. There is no decisional law that recognizes sodomy as a basic civil right, or as a practice protected by the right of privacy. It’s for Texans to decide what they want the laws of Texas to be. - Rick ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 3, 2002, 9:05pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/49 "2002-12-03T21:05:20Z")
> [@](#): > > It isn’t illegal for heterosexuals to have oral sex in Texas. Texas’s antisodomy law applies only to same sex couples. It might be interesting to see what the court might do with a couple one of whom is a post-surgery transsexual, since Texas law regards the biological birth gender as immutable. Would they prosecute them for having same-sex genitalia-in-genitalia sex? If so, under what law? ---
**Author:** ![Hamish](https://avatars.discourse-cdn.com/v4/letter/h/a5b964/32.png) [@Hamish](https://boards.straightdope.com/u/Hamish)\ **Post date:** [December 3, 2002, 9:27pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/50 "2002-12-03T21:27:20Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*There is no decisional law that recognizes sodomy as a basic civil right, or as a practice protected by the right of privacy. > > It’s for Texans to decide what they want the laws of Texas to be. > \*\* My knowledge of American law is spotty, but I don’t think the issue is states rights versus those of your federal government. Nor is it the idea of sodomy as a civil right – although _privacy_ as a civil right is at issue here. So is equality. What Texas seems to have is a law applied to homosexuals _only_. It also violates people’s right to privacy, with no measurable benefit to the public interest. Mature democracies, whether at the federal, state/provincial, or municipal level, must recognize that certain rights – including privacy and equal treatment under the law – must remain sacrosanct. “Tyranny of the majority” (which, in my experience, is usually tyranny by a vocal minority) fosters an threatening atmosphere where free speech and freedom of expression are impossible and, ironically, make it harder for a democracy to function. Privacy should only be limited where the public interest is at risk, and I think it is extreme to claim that the public interest is in any way threatened by two men having sex in their home. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [December 3, 2002, 9:28pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/51 "2002-12-03T21:28:36Z")
> [@](#): > > . . . Texas law regards the biological birth gender as immutable. I wouldn’t describe that as a settled point of Texas law, **Poly**. Only one of the 14 courts of appeals have considered the issue, and the Texas Supreme Court denied review. It’s only binding precedent on the courts within that one district (the San Antonio area, as I recall), and the other courts are free to disagree. Still, that’s an interesting little quirk you point out there. Gotta love the unintended consequences of stupid decisions! ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [December 3, 2002, 9:37pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/52 "2002-12-03T21:37:04Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > **MTGman, thanks for the rundown on the case. My guess is that that the original _nola contendere_ was entered at the urging of an attorney who was looking for the quickest disposition of the case.** I agree, especially in the light of the fact that both the individuals were in the closet at the time and would have wanted to avoid publicity if possible. \*\* > [@](#): > > I still think that the cops were out of line, as were the county court which quashed the appeal and the 14th circuit which overturned the ruling of unconstitutionality. I think this whole thing smacks of institutional homophobia.\*\* I’d like to see justification for the quashing of the motion to dismiss as well(the appeals weren’t quashed, just the motion to dismiss, and I haven’t been able to find the grounds the motion was based on). I’ve seen the opinion of the 14th court and I’ve already said I disagree with it but those jerks, being in Houston, are out of my reach. Now if it ever comes before the fifth court and crap like this happens…\*\* > [@](#): > > I will withdraw my blanket condemnation of Texans, but I hope that the publicity in this case will inspire public pressure to repeal these kinds of laws \*\* Thank you for the retraction. I also hope for reform, and I suspect the SCotUS does as well or they wouldn’t have taken this case. Enjoy, Steven ---
**Author:** ![Esprix](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/esprix/32/7899_2.png) [@Esprix](https://boards.straightdope.com/u/Esprix)\ **Post date:** [December 3, 2002, 10:41pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/53 "2002-12-03T22:41:51Z")
**Bricker** , obviously we disagree. I see this as a clear civil rights issue, and I believe that should trump states’ rights (at least in this case, although I can think of others). Esprix ---
**Author:** ![Cadaverous](https://avatars.discourse-cdn.com/v4/letter/c/b2d939/32.png) [@Cadaverous](https://boards.straightdope.com/u/Cadaverous)\ **Post date:** [December 3, 2002, 11:19pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/54 "2002-12-03T23:19:31Z")
Coming from the UK, where anti-homosexual laws were abolished in the sixties (I think… before my time) and gay rights are regularly at the forefront of the mainstream media (including debates over whether or not gays should be allowed the same adoption, couples’ benefits etc., ) I find the notion that the state can legislate on any consensual activity in private horrifying. I even found it archaic that the homosexual age of consent was only lowered to that of heterosexuals (16), within the last few years, after being 21, then 18. Even if laws such as this are not regularly enforced, surely that is missing the salient point, **that the state has no right to criminalise a consensual sexual activity between adults**. It may sound idealistic, but the main purpose of the law of a democracy is to protect its citizens. ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [December 4, 2002, 1:34am UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/55 "2002-12-04T01:34:45Z")
Just as a point, the state sodomy law that the Supreme Court upheld in the old _Bowers v. Hardwick_ case was later overturned (in 1999, IIRC) by the Georgia Supreme Court as being violative of individual privacy. The Georgia Supreme Court said that it was permissible for Georgia to give a greater respect to individual privacy than the United States Supreme Court required. Interesting ruling, especially since the defendant was particularly disgusting: he had an extensive sexual relationship with his teenage **stepdaughter**. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [December 4, 2002, 2:01am UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/56 "2002-12-04T02:01:16Z")
EEEEWWWWWW…that’s disgusting!!! (I mean, the sex with his stepdaughter part) ---
**Author:** ![Ulterior](https://avatars.discourse-cdn.com/v4/letter/u/85f322/32.png) [@Ulterior](https://boards.straightdope.com/u/Ulterior)\ **Post date:** [December 4, 2002, 2:53am UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/57 "2002-12-04T02:53:16Z")
By the way: A friend of mine mentioned to me that Washington State has a law banning sex with virgins. Is this actually true? [/hijack] ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [December 4, 2002, 11:49am UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/58 "2002-12-04T11:49:26Z")
> [@](#): > > \*Originally posted by Esprix \* > \*\ ***Bricker** , obviously we disagree. I see this as a clear civil rights issue, and I believe that should trump states’ rights (at least in this case, although I can think of others). > > Esprix \*\* I’m not even able to wrap my brain around that notion of “states’ rights”. Why should states have rights? Their duty is to protect and preserve PEOPLE’s rights. ---
**Author:** ![Ultimate\_Pung\_Chow](https://avatars.discourse-cdn.com/v4/letter/u/eb8c5e/32.png) [@Ultimate\_Pung\_Chow](https://boards.straightdope.com/u/Ultimate_Pung_Chow)\ **Post date:** [December 4, 2002, 11:54am UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/59 "2002-12-04T11:54:58Z")
THATS DISGUSTING! Send all the pedophile faggots on their way! They shouldnt be able to have sex. especially with the little children they all want to! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 4, 2002, 1:23pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/60 "2002-12-04T13:23:27Z")
> [@](#): > > \*Originally posted by Libertarian \* > \*\*I’m not even able to wrap my brain around that notion of “states’ rights”. Why should states have rights? Their duty is to protect and preserve PEOPLE’s rights. \*\* The term is convenient shorthand for, “The power of states, as opposed to the federal government, to legislate in a particular area.” Theoretically, the exercise of that legislative power is to protect and preserve people’s individual rights. Of course, reasonable people can disagree about what sort of weight is assigned to each individual right. It’s generally agreed that, for example, a state has the power to criminalize prostitution, even though people may also be said to have an individual right to copulate with whomever they please, and charge for the service if they please. But among the rationales for criminalizing prostitution is the notion that acceptance of prostitution in a particular area breeds all sorts of undesirable civil ills; thus, the thinking goes, the individual’s right to pay and play, to the extent it exists, is overcome by other individuals’ rights to not have those attendant social ills thrust upon them. As I say, reasonable people may disagree as to whether these civil ills are truly the result of prostitution, or whether the weights assigned to the two sets of rights are correct, but the fact remains that it is well-recognized that a state may criminalize prostitution. It’s this, and similar, powers, I refer to when I say there is a “state’s right” to do something. - Rick [Previous page](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036.md?page=2) [Next page](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036.md?page=4)