# 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:** 5
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [December 4, 2002, 5:47pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/81 "2002-12-04T17:47:00Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > **States do not have a right to enforce religious morality, and homosexuality is “immoral” in no other sense then a religious one.** So, there are no atheists who are anti-homosexual? And laws against and persecution of homosexuals did not occur in atheistic states (e.g., Cuba, China, the Soviet Union)? ---
**Author:** ![Uncommon\_Sense](https://avatars.discourse-cdn.com/v4/letter/u/f9ae1b/32.png) [@Uncommon\_Sense](https://boards.straightdope.com/u/Uncommon_Sense)\ **Post date:** [December 4, 2002, 5:50pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/82 "2002-12-04T17:50:12Z")
Diogenes — Explain to me how you interpret “seperation of church and state”? Just curious. Kalash. ------ they shouldn`t!!! Wallon ------- my point exactly… ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 4, 2002, 6:14pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/83 "2002-12-04T18:14:36Z")
It’s my understanding that they are challenging the law under both Equal Protection and Substantive Due Process clauses of the Constitution. Under the Equal Protection argument, SCOTUS could find that the law is unconstitutional because it makes certain sex acts illegal for homosexuals, but legal for hetereosexuals. If they rule under this analysis, I don’t think there is a problem with **Bricker’s** concern regarding federalism. SCOTUS would simply say the Texas law violates Equal Protection and they wouldn’t have to rule one way or the other, as to if sexual conduct is a right guaranteed under the Constitution. They wouldn’t even have to deal with _Bowers_ However, if SCOTUS is going to use the concept of Substantive Due Process, then they will have to revisit _Bowers_ and make a determination if the right to certain sexual conduct is included in the amorphous right to privacy. Then, **Bricker** may have a point regarding his state’s rights argument. However, SCOTUS would have to find a right for sexual conduct before they could find the law as violative of the Constitution. My money is betting that SCOTUS overrules Bowers. Time will tell. ---
**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 4, 2002, 6:18pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/84 "2002-12-04T18:18:18Z")
The determination of “immorality,” vis a vis consensual homosexual sex, has no meaning outside of a religious context. I defy anyone to give me a theory by which homosexuality can be said to be “immoral” or wrong in any secular sense. **Whuck** , I was referring to the establishment clause of the first amendment whic states that “congress shall make no law regarding the establishment of a state religion…” In other words, the government cannot endorse any specific religion or make a law which accepts any particular religious view as fact. The government must act in a way which recognizes only secular arguments for abridging civil rights. Since the default presumption is that people have a right to do with their bodies as they please. it is up to the state to show that certain behaviors would cause objective harm to other people or property in order to prohibit them. There is no conceivable theory by which private sexual behavior between consenting adults can be shown to harm others, therefore the state has no constitutional right to forbid it. The Texas law, and laws like it, are anachronistic remnants of more theocratic times. The SCOTUS is about to overturn this. They would not have even agrred to review this case if such was not their intention (IMHO, of course). The equal protection argument alone is enough, btw. You have to forbid bj’s for everybody or nobody. You can’t single out one group. That issue, _per se_, is a slam dunk for a ruling of unconstituionality. ---
**Author:** ![Uncommon\_Sense](https://avatars.discourse-cdn.com/v4/letter/u/f9ae1b/32.png) [@Uncommon\_Sense](https://boards.straightdope.com/u/Uncommon_Sense)\ **Post date:** [December 4, 2002, 6:36pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/85 "2002-12-04T18:36:27Z")
The law pertaining to “deviate sexual acts” is the specific law being questioned here. If the courts decide that this does not cover homosexuality then I agree with you. If, however, they can`t or won`t make a decision then this becomes a problem. DIOGENES, IF the default presumption is as you say, then why are topics such as this so hotly debated? (Abortion, smoking, and the like) Seems we don`t really know what to presume. Is it because of secularism that “In God we trust” is still on our money? ---
**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, 6:54pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/86 "2002-12-04T18:54:28Z")
> [@](#): > > \*Originally posted by Esprix \* > \*\*I have a little states’ rights question - what about those people who are too young to vote, or too poor to move? What about the disenfranchised people who cannot, for whatever reasons, leave the state they are in that persecutes them, or cannot, for whatever reasons, make a movement to change the laws in that state in which they reside? > > I also question the “morality of the majority” when it enacts and/or enforces laws that take away basic human rights - like being able to have consensual sex with the person of your choosing. > \*\* I don’t know what authority purports to define “basic human rights,” and so I’m unable to determine if the right to have consensual sex with the person of your choosing is, as you suggest, a basic human right. I can tell you that those persons too young to vote are also too young to assert a right to have sex; it’s well-established that a state may forbid underage persons from sexual activity. > [@](#): > > \*Originally posted by Diogenes the Cynic \* > States do not have a right to enforce religious morality, and homosexuality is “immoral” in no other sense then a religious one. The right to “life, liberty, and the pursuit of happiness” can be abridged only if the pusuit of happiness in some way harms or infringes on the civil rights of others. Since private sexual behavior between consenting adults harms no one, **infringes on no one else’s rights and can not be shown to have any deleterious effect whatever on the community, the state cannot legally forbid it**. The only “moral” justification would be religious, and then you have a violation of the establishment clause of the first amendment. What about my earlier analogies regarding prostitution and drug use? I can argue that private paid sexual behavior between consenting adults harms no one, but it’s clear that states have the right to forbid this. I can argue that drug use harms either no one, or, at worst, only the person choosing to inflict the harm on himself, and yet it’s clear that states have the right to forbid it as well. The real key is the bolded portion of your claim, above. In both the drug use and prostitution analyses, a colorable claim can be made for deleterious effects on society. But as was discussed above with the caviar example, I can make a claim that eating caviar has a “deleterious effect on society” - after all, it requires the immoral subjugation of a living species for mere enjoyment; the destruction of an animal’s rights to produce offspring, and the eating of another living creature’s body, which is clearly immoral. Or so the anti-caviarists might claim, anyway. Why are they wrong, if they are? Why are the anti-sodomy crowd wrong, if they are? > [@](#): > > The majority is irrelevant here. The first amendment is designed to _protect_ the minority from the tyranny of the majority. What if a majority decides that interracial marriage is “immoral?” Does a state have the right to forbid it? What if a majority Muslim community were to outlaw the consumption of pork? Is that ok too? I’m not aware of any case law that seeks to protect sodomy under First Amendment grounds. The First Amendment does, of course, provide a specific area in which the federal government can exercise power in check of a state’s power. I agree that no state has the power to forbid interracial marriage. But I don’t agree that sodomy fits into that category. > [@](#): > > Furthermore, the Texas law applies only to homosexual “sodomy” (can’t we retire that word, please? It IS the 21st century is it not?). This violates equal protection. you cannot forbid an act for one group of people and allow it for another. (imagine a law that said that Jews can’t get blow jobs. This is no different.) I certainly agree with that. The law must be both neutral on its face and neutrally-enforced. Either forbid sodomy for both hetero- and homosexuals, or permit it both. To distinguish one class of persons is violative of the Due Process Clause. - Rick ---
**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 4, 2002, 7:09pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/87 "2002-12-04T19:09:47Z")
The whole first amendment argument is just MHO. i know that no one is actually using this, but I believe that that they could. How is there any qualitative difference between forbidding interracial sex and homosexual sex. By what theory do states have the right to forbid one but not the other? I think that prostitution and drugs should be legalized, but even so, drug use, at least, has the potential to cause harm to others (but so does alcohol). Second hand smoke is at least annoying, and possibly harmful to others, but I’m not aware of any attempt to ban smoking in one’s own home. I think that laws against prostitution are unconstitutional, moralistic, stupid and hypocritical and should be repealed. “In God we trust” on money is a flat violation of the establishment clause (as is “under God” in the Pledge of Allegience) and the practice should be stopped. infortunately, it often seems to the country a while to actually enforce its own constitution. ---
**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 4, 2002, 7:11pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/88 "2002-12-04T19:11:57Z")
That should have said “Unfortunately, it often seems to take the country a while…” ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [December 4, 2002, 7:20pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/89 "2002-12-04T19:20:06Z")
This may be a nitpick but, the law in Texas does not restrict homosexuals from any activity anymore than it does heterosexuals. I assume that a heterosexual can not legally perform acts of oral sodomy on another man. The fact that he may not want to doesn’t have any effect on what his rights are. ---
**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 4, 2002, 7:28pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/90 "2002-12-04T19:28:53Z")
I’m sorry, **KRM** , but this is an unbelievably specious and sophist argument. ---
**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, 7:37pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/91 "2002-12-04T19:37:08Z")
Well, **Diogenes the Cynic** , I’m afraid we’ll have to agree to disagree. Prostitution laws are constitutional and that situation is unlikely to soon change. It disturbs me that you’re so eager to have an unelected body of lifetime judges make changes that legislatures, which presumably reflect the will of the majority, do not wish to make. At the same time, I wryly note, you were highly critical of that body when it made a decision also not consistent with the will of the majority - and not consistent with the result you wanted. Surely it would be better to encourage state legislators to repeal these outdated, overly-moralistic laws, than encourage further legislation by judicial fiat? If our system of laws comes down to who can field a better advocate in front of the Supreme Court, and which President has the chance to appoint justices he likes, at times when the Senate won’t put up too much of a fight, I believe the country will be the worse for it. Fight for our right to make the laws we want, from the legislative floor… don’t fight for the right to impose law from the judicial bench. - Rick ---
**Author:** ![Uncommon\_Sense](https://avatars.discourse-cdn.com/v4/letter/u/f9ae1b/32.png) [@Uncommon\_Sense](https://boards.straightdope.com/u/Uncommon_Sense)\ **Post date:** [December 4, 2002, 7:42pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/92 "2002-12-04T19:42:43Z")
DIOGENES I respect your positions. Unfortunately for you, the rest of the country doesn`t, yet. Sometimes Christian views can help morally bond the country and sometimes they can cause plenty of disagreements. Bricker, Well put. ---
**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 4, 2002, 7:57pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/93 "2002-12-04T19:57:25Z")
**Bricker** , I’m not asking the SC to make a new law, only to enforce existing civil rights law. I don’t think it’s necessarily inconsistent to want the SC to do the right thing, and be disappointed when they do the wrong thing. If we had left these kinds of decisions up to state legislatures we would still have segregation. **Whuck** , I know my opinions are radical (though not as much as they used to be). I don’t think drugs or prostitution are good things, but I think that prohibiting them only causes more problems. The coins and the pledge stuff-- it’s not keeping me up nights. I think they’re gratuitous but I’m not lobbying to get rid of them. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 4, 2002, 8:10pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/94 "2002-12-04T20:10:06Z")
> [@](#): > > This may be a nitpick but, the law in Texas does not restrict homosexuals from any activity anymore than it does heterosexuals. I assume that a heterosexual can not legally perform acts of oral sodomy on another man. The fact that he may not want to doesn’t have any effect on what his rights are. I’m reminded of something from **Matt\_mcl** ’s stock of quotations that he posted here once in riposte to a similar comment. Paraphrased (because I don’t have the exact wording) it goes like this: > [@](#): > > The law in its majestic neutrality grants equally to the millionaire and the pauper the right to sleep under bridges and beg their food in the streets. In your view, would a law that prohibited both men and women from working at a place in the public view while pregnant be discriminatory? ---
**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, 8:16pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/95 "2002-12-04T20:16:49Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\ ***Bricker** , I’m not asking the SC to make a new law, only to enforce existing civil rights law. \*\* Er… the thing is, no letter or interpretation of existing civil rights law includes a constitutionally-protected right to engage in sodomy. So you _are_ asking for new law. - Rick ---
**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, 8:20pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/96 "2002-12-04T20:20:25Z")
> [@](#): > > \*Originally posted by Hamlet \* > It’s my understanding that they are challenging the law under both Equal Protection and Substantive Due Process clauses of the Constitution. Under the Equal Protection argument, SCOTUS could find that the law is unconstitutional because it makes certain sex acts illegal for homosexuals, but legal for hetereosexuals. If they rule under this analysis, I don’t think there is a problem with **Bricker’s** concern regarding federalism. SCOTUS would simply say the Texas law violates Equal Protection and they wouldn’t have to rule one way or the other, as to if sexual conduct is a right guaranteed under the Constitution. And if the law does, in fact, by letter or by selective enforcement get used only against homosexuals, then the Supremes would be exactly right to find an Equal Protection violation. - Rick ---
**Author:** ![Uncommon\_Sense](https://avatars.discourse-cdn.com/v4/letter/u/f9ae1b/32.png) [@Uncommon\_Sense](https://boards.straightdope.com/u/Uncommon_Sense)\ **Post date:** [December 4, 2002, 8:29pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/97 "2002-12-04T20:29:40Z")
. So we can feel free to make laws against it? Clarify. > [@](#): > > Er… the thing is, no letter or interpretation of existing civil rights law includes a constitutionally-protected right to engage in sodomy ---
**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 4, 2002, 8:38pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/98 "2002-12-04T20:38:04Z")
> [@](#): > > Er… the thing is, no letter or interpretation of existing civil rights law includes a constitutionally-protected right to engage in sodomy. > > So you are asking for new law. No, I’m talking about equal protection. the Texas law applies only to homosexuals. It does not restrict oral or anal intercourse by heterosexuals. This, by itself, is unconstitutional. ---
**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, 9:36pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/99 "2002-12-04T21:36:29Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*No, I’m talking about equal protection. the Texas law applies only to homosexuals. It does not restrict oral or anal intercourse by heterosexuals. This, by itself, is unconstitutional. \*\* We’re in complete agreement, then. A law that targets only homosexuals is drawing an invidious distinction, and I believe it should be found to be prohibited by the federal constitution. - Rick ---
**Author:** ![Mangetout](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mangetout/32/19_2.png) [@Mangetout](https://boards.straightdope.com/u/Mangetout)\ **Post date:** [December 4, 2002, 10:01pm UTC](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036/100 "2002-12-04T22:01:32Z")
> [@](#): > > \*Originally posted by whuckfistle \* > **The minority has the right to grieve but not to the point that it affects the majority.** And just exactly how do the minority of homosexuals _ **affect** _ the (supposed) majority of antis? Suppose the majority of voters think it’s OK to keep black slaves - is that OK? [Previous page](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036.md?page=4) [Next page](https://boards.straightdope.com/t/should-gays-be-allowed-to-have-sex/140036.md?page=6)