Justices' time is ill spent by peeking into bedrooms

ROGER SIMON

October 07, 1992|By ROGER SIMON

I used to think the Supreme Court spent its time dealing with important matters.

I used to think the justices were kept very busy with such things as abortion, the death penalty and civil rights.

I used to think they labored under a tremendous workload. As one news account said this week: "The court, returning from its three-month summer recess with a blizzard of paperwork, issued orders in more than 1,400 cases."

And you could just close your eyes and see the black-robed justices, buried up to their necks in snowbanks of papers.

So I wonder how the justices found time Monday to rule on what kind of sex a man and a woman can have in private.

Because the case involved a particular kind of sex that the media find embarrassing to mention (though it is simulated on TV on a regular basis) it got little publicity.

But I think it is important, and you might want to know about it. This is the case in brief:

In 1990 an airman at Altus Air Force Base in Oklahoma had sex with his girlfriend in a private home off base. (Though both were teen-agers, both were considered adults under the law.)

The sex the airman and his girlfriend engaged in was oral sex, which is banned under military law.

Why? I don't know why.

I do know I just read a story last week stating that "two-thirds of American troops serving in mixed units during the gulf war say men and women were having sex."

What kind of sex were they having? All kinds, I would guess, this being the Nineties. Why should I care what kind of sex it was? Why should you care? Why should the military care? And why, oh why, should the Supreme Court care?

I don't know. But the justices do.

The hapless airman's second offense was to jilt his girlfriend, who then reported their sexual activities to authorities.

The airman was tried in military court where he pleaded guilty and was sentenced to a bad-conduct discharge, seven months' confinement and a reduction in rank.

In other words, the military took this pretty seriously.

Then, in a flash of good sense, the Air Force Court of Military Review reversed the guilty finding.

It decided there "was a fundamental right of sexual privacy" between consenting heterosexual adults.

"The private nature of the acts avoids any threat to public morality; indeed, no harm to anyone has been show from [this] conduct," the Court of Military Review ruled.

"No harm to anyone." That seems to me an important standard.

The airman hadn't deserted his post. He and his girlfriend weren't corrupting children in schoolyards or scaring farm animals.

They weren't doing it in the road. They were doing it in private.

Why did it matter to the military court, by the way, as to whether the consenting adults were heterosexual or homosexual?

Because the military legally discriminates against homosexuals. And in 1986 the Supreme Court ruled that the Constitution does not protect private homosexual conduct between consenting adults.

That ruling did not comment, however, on oral sex between consenting heterosexual adults.

And I'll bet you thought you could do whatever you wanted in the privacy of your own home, right?

I'll bet you thought that if you were married, let's say, and the shades were drawn and the door was locked, you could do pretty much anything that took your fancy.

I'll bet you thought that you could dress up like Regis and your spouse could dress up like Kathie Lee and the two of you could swing from a trapeze and do whatever took your fancy, right?

Wrong. Or at least not necessarily.

After the Air Force Court of Military Review let the airman off the hook, the U.S. Court of Military Appeals reinstated the guilty verdict.

The airman argued that his conduct was protected by a constitutional right to privacy.

But Monday the Supreme Court disagreed and let the guilty verdict stand.

Which is another thing I don't get. This is a conservative court, right?

And conservatives are supposed to want government off our backs.

So how come this Supreme Court, with so many serious matters to deal with, is not just on our backs, but peering over our shoulders?

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