Essay: The Individual Is Sovereign

Not everyone will agree with this, but for the sake of argument let us stipulate that homosexuality and other variant forms of sex are distasteful and should generally be discouraged. Let us also stipulate that the kind of pornography that flourishes in most cities is also distasteful and to be discouraged. Now even if this were all true -- and a majority of Americans think it is -- does it mean that the forces of law and government should proclaim such sexual activities illegal and threaten all offenders with prison terms? More generally, does it mean that the permissiveness of the past 20 years has finally gone too far, particularly in its blatant public displays, and that the government has a moral duty to call a halt? That certainly seems to be the implication of the Supreme Court's ruling on a Georgia sodomy case two weeks ago and of the Meese commission's report on pornography last week. If so, these are very questionable judgments on a very complex problem.

Granted that the government has a right to interfere if anyone is being injured or coerced, the history of official efforts to regulate sex is a long and fairly unhappy one. Both sides invoked it in the sodomy case. "Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards," said Chief Justice Burger in concurring with Justice White's majority opinion. "Homosexual sodomy was a capital crime under Roman law . . ." The same line of argument could presumably be made to support slavery, and Justice Blackmun's dissent offered a spirited rebuke from Oliver Wendell Holmes Jr.: "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished."

Customs do change. Babylonian law decreed drowning as the proper punishment for a woman accused of adultery, but if she floated after being forced to jump into a sacred river, she was judged innocent. In the Middle Ages, someone who had sexual relations with a Jew could be punished by burial alive; adulterers were flogged through the streets, prostitutes had their noses slit, and men were burned alive for having sex with dogs, goats, cows, even geese.

In the Enlightenment of the 18th century, the Austrian Empress Maria Theresa appointed a troop of spies known as Commissioners of Chastity to enforce her prim views. Said the irrepressible Giacomo Casanova: "They carried off to prison, at all hours of the day and from all the streets of Vienna, poor girls whom they found alone, who in most cases went out only to earn an honest living." Sodomy was long considered a capital offense, and the Marquis de Sade was sentenced to death for engaging in it. Hitler threw homosexuals into concentration camps. In recent years the resurgence of Islamic law means that adulterers face flogging in countries like Iran, Saudi Arabia, Pakistan. And down through the centuries, despite all the decrees, people have gone right on, of course, enjoying sex as best they could.