HOMOSEXUAL sodomy was a crime in every state until 1962. The statutes were an inheritance from English law in which the offense was, at one time, punishable by death. Now public attitudes as well as criminal laws have changed, and half the states no longer penalize this conduct. Americans, even those who strongly disapprove of homosexuality, place increasing emphasis on privacy, particularly as it pertains to sexual conduct between consenting adults. Legislatures and courts reflect this growing reluctance to send the police into the nation's bedrooms.
Even in those jurisdictions that retain sodomy statutes, prosecutions are rare. Three years ago however, a homosexual man was arrested in Georgia -- he was not prosecuted -- and he subsequently sued to test the constitutionality of that state's statute. The law in question makes it a crime for anyone, including heterosexuals and married couples, to engage in the proscribed acts, so its potential application is broad. This week, the Supreme Court agreed to hear an appeal in this case, and the constitutionality of sodomy statutes -- thought to have been settled by a Virginia case 10 years ago -- will be reconsidered.
The court, of course, must decide not whether sodomy statutes are wise, or good policy, but whether the federal Constitution prohibits the states from enacting them. In a number of areas involving privacy -- miscegenation, abortion, birth control -- the court has made such a finding, as it should in this case. But even if the plaintiffs fail in court, state legislatures have a responsibility to get the police out of this business not only because the laws are archaic and unnecessary but because the potential for their abuse is great. The police and the courts have enough responsibilities without worrying about bedroom intimacies that should not be the public's business.