TALLAHASSEE - "Liberty," wrote Justice Anthony Kennedy on behalf of a majority of the U.S. Supreme Court last week, "protects the person from unwarranted government intrusions into a dwelling or other private places."
With ironic timing, this great decision in the Texas sodomy case was accompanied by news of increasing government interest in airport passenger screening machines that can see through to a person's underwear, or lack of any. A virtual strip search.
It is ironic also that this voyeurism emanates from an administration whose attorney general ordered cloth to be draped over semi-nude statues that had stood unmolested at the Justice Department since the 1930s.
But I digress. The court's decision in the Texas case is monumental not only for its emphatic conclusion that the private sex life of mutually consulting adults is not (prostitution excepted) the government's business, but for its even more unambiguous statement that the Constitution is a living document to be interpreted through contemporary eyes rather than by the cold, dead hands of its framers. Seventeen years ago, the court upheld Georgia's sodomy law, which criminalized heterosexuals as well as gays. Now, the court acknowledges that decision to have been wrong. And in so saying, it effectively struck down Florida's law as well.
"As the Constitution endures," Kennedy wrote, "persons in every generation can invoke its principles in their own search for greater freedom."
The decision struck a particularly poignant note in Florida's capital, where it came 40 years too late to prevent a great abuse of Florida's sex laws.
The victim was Bob Delaney, a capital reporter for the Orlando Sentinel who had been a fishing buddy of former Gov. LeRoy Collins. Delaney had written criticallyand often of the Senate Pork Chop Gang that had thwarted fair reapportionment and of the Florida Legislative Investigating Committee with which Sen. Charley Johns, a principal Pork Chopper, was conducting a witch hunt for homosexuals in the universities and schools.
The committee's chief investigator, working with Tallahassee police, set up a trap at a local motel. Knowing Delaney to be a recovering alcoholic, they employed a convicted murderer to lure Delaney to her room on the pretext that she needed immediate help with her drinking problem. He found the woman wearing only a bathrobe, open to the waist. As she made her move, the police made theirs. They burst into the room and charged Delaney with what the law called "the abominable and detestable crime against nature" - in that instance, oral sex.
One jury was unable to agree. A second convicted him of attempting the offense, for which he received five years' probation. But his newspaper immediately fired him and his career never recovered. The frame-up eventually cost him his marriage as well.
"It pretty much ruined his life," says Julius F. Parker, the Tallahassee lawyer who defended him.
The Johns Committee's role, suspected and partly confirmed at the time, was fully revealed when committee records were opened 10 years ago.
Delaney appealed to the U.S. Supreme Court, which refused to take the case. Not many years later, the Florida Supreme Court threw out the law under which he had been convicted - as too vague for a criminal statute - but refused, conspicuously, to make the decision retroactive. Some suspected Johns had a hand in that. Some suspect it still.
"I never understood that," Parker said Friday. "If they had said that and let it be retroactive as it should have been, Delaney's conviction could have been set aside, and should have been set aside."
The Legislature, meanwhile, rewrote the old felony law as a misdemeanor statute. Nearly as vague, it prohibited "any unnatural and lascivious act with another person." Lawmakers amended it 10 years ago to exclude "a mother's breast-feeding of her baby."
That law became history with the Supreme Court's decision in the Texas case. Though rarely enforced in recent years, the potential for abuse was enormous.
"I thought it was an absolutely correct decision," Parker said Friday. "I'm very surprised that the Supreme Court with its present composition came up with that decision, but it was the proper decision."
Bob Delaney would say so too, if he could. But he died in 1990.
This is not the first occasion, nor even nearly the swiftest, in which the court has reversed itself on a question of human liberty. In 1940, it upheld, 8-1, a Pennsylvania flag salute law under which two Jehovah's Witness children had been expelled from public school. In 1943, the court reversed itself in one of its greatest and most quoted decisions, saying in part, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."
