Saturday, October 4, 2008

Remarks on AB 489 (1975)

The Rodda Project: Consenting adults legislation, May 1975

The background to Sen. Rodda's remarks

The story of Assemblyman Willie Brown's AB 489 is one of the most dramatic in California legislative history. Although he was not yet Speaker of the Assembly, Brown was already a powerful and respected member of the Democratic majority. With the election in 1974 of Jerry Brown to succeed Ronald Reagan as governor, Willie Brown knew that he at last had a state chief executive who could be persuaded to sign legislation wiping out certain old-fashioned sex laws that criminalized behavior between consenting adults. Assemblyman Brown knew his measure would be a top priority for many of his San Francisco constituents, especially the gay people for whom every sex act was automatically a crime under state law. But first, Willie had to get the legislation to the new governor's desk.

The State Assembly passed AB 489 by a lopsided vote of 46 to 22, mostly along party lines, Democrats voting for it and Republicans voting against. The big test was in the State Senate, where the Democrats held a smaller margin. After the usual committee hearings and floor debate, the senate clerk began to call the roll and tally senators' votes. Many observers thought that Willie Brown did not have the votes he needed, especially since he could not count on every Democratic senator to vote for AB 489. The tally continued largely along anticipated lines as the clerk worked his way through the alphabet. Then came the big surprise.

The clerk called the name of Howard Way, a conservative Republican state senator from Exeter, a small town in the central San Joaquin Valley. Way was a senior member of the upper house and had even served briefly as president pro tempore of the Senate during a short period of Republican ascendancy. Way replied to the clerk: “Aye.”

The Senate was stunned, as were the observers and press in the gallery. Howard Way was a conservative, but he was an old-school conservative with a strong libertarian streak. He thought about Brown's legislation and decided that the state had no business telling adults what they could or could not do in private.

Way's unexpected vote resulted in a 20 to 20 tie in the State Senate. For some reason, no one had anticipated this possibility, so the one man who could break a tie, the lieutenant governor, was not presiding over the Senate. Mervyn Dymally was, in fact, in the state of Colorado. Emergency jet transport was arranged for Dymally while the Senate went into lock-down. While they awaited the lieutenant governor's arrival, intense political maneuvering began. Dymally could vote only if there were a 20 to 20 tie. In no other circumstance did he have a deciding vote. An opponent of AB 489 had a clever idea.

Newton Russell, an extremely conservative Republican from Glendale (but not in agreement with the vote of fellow Republican Way), asked to be recognized for the purpose of changing his vote. Until the vote was complete (which it could not be in the face of a tie during the absence of the lieutenant governor), senators could amend their votes by calling out to the clerk. The usual practice would be to announce loudly, “Jones, aye to nay” or “Jones, nay to aye.” The practice made it easy to correct a vote (sometimes to seek political cover by agreeing with a powerful member whose vote you had not correctly anticipated). Russell, however, gave it a new spin: “Russell, nay to not voting.”

Russell's ploy depended on breaking the tie, turning the vote into 20 ayes and 19 nays. A bill cannot become a law without a majority vote (21) and the lieutenant governor cannot vote unless there is a 20 to 20 tie. The Senate leadership consulted hastily and the parliamentarian informed Sen. Russell that he had voted and could not withdraw his vote. He could, of course, change it to an aye vote, but he could not simply expunge his nay vote and pretend he had not voted.

Russell disputed the ruling, but could not obtain the consent of his colleagues to overrule the parliamentarian. He had been defeated by alphabetical order, because he had voted by the time Way dropped his bombshell. The status quo held until Dymally finally rushed into the legislative chambers and announced the 21st aye vote.

Some members sent out copies of their floor speeches on AB 489 to constituents who requested (or demanded!) explanations of their votes. Albert Rodda produced a heavily footnoted account, from which the following essay is derived. I have not included all of the appendices, such as the legal opinions on the impact of AB 489 enactment that were obtained from the Legislative Counsel Bureau, but I did reproduce some of the letters that the Senator received in his Capitol office.

When we consider how quaint the AB 489 controversy is today, 32 years later, perhaps we should recall that it was not until the Lawrence v. Texas decision of 2003 that Texas caught up with California in personal human rights—and that was by judicial mandate rather than by any voluntary legislative action.


Elaboration of my comments on the Senate Floor with reference to AB 489, Brown

The issues raised by the necessity of action on AB 489, Brown, which would delete from the law the penalties for sexual behavior engaged in in private by consenting adults forced all members of the Senate to engage in very thoughtful deliberations in order to reach a decision with reference to their votes.

The legislation was approved by the Assembly on March 6, 1975, and assigned to the Senate Judiciary Committee where, after four hours of testimony and deliberation, it was approved and moved to the Senate Floor on April 17, 1975. On May 1, it was debated on the Senate Floor and approved by a vote of 21 to 20, Lt. Governor Mervyn Dymally casting an historic, tie-breaking vote.

In the Senate Judiciary Committee hearings there were no expressions of opposition from agencies of government charged with law enforcement and the measure had the support of the San Francisco League of Women voters, the American Civil Liberties Union, the National Organization of Women (NOW), the California Bar Association, the California District Attorney’s Association, and members of the “gay” community.1 It was opposed by spokesmen representing organizations which were primarily religious, including the Conference of the Free Methodist Church, the Greater San Jose Association of Evangelicals, and the Women's Christian Temperance Union of Southern California, and they predicated their opposition arguments largely on moral and religious grounds.

Despite statements to the contrary, AB 489 provided for only two changes in existing law:

(1) It removed criminal penalties for sexual acts done in private by consenting adults. It did not, however, “legalize” such acts; it merely made the decision of whether or not to engage in such acts a matter of individual conscience.

(2) It increased from one to three years the minimum prison sentence for persons convicted of committing forcible sodomy or oral copulation with a minor who is under the age of fourteen.

AB 489 did not remove the present penalties in the law for the solicitation of any sexual act, and it did not, as is contended, change or modify the existing penalties in the law for forcible sodomy or oral copulation with adults and minors above the age of fourteen. Furthermore, it did not affect the prohibition against sexual acts with animals or to remove a teacher for “immoral or unprofessional conduct.”2

The provisions in the Penal Code which make criminal specified types of private sexual behavior and which were repealed by AB 489 were enacted over a hundred years ago, and those witnesses who are engaged in law enforcement and who appeared before the legislative committees volunteered in their testimony that the provisions of the law which were being repealed were archaic, but, more important, clearly inappropriate in a free or open society, since they constituted a serious threat to the privacy of the individual citizen. Such testimony, emanating, as it did, from individuals concerned with law enforcement, constituted rather an interesting commentary on the controversy that surrounded the legislative deliberations involved in the enactment of the legislation.

Those citizens who opposed AB 489, of course, did not interpret the historic law on sexual restraint from such a perspective. They argued most vehemently that all sex acts engaged in by adults which were deviant or abnormal were immoral and sinful and a crime against society. They asserted that the repeal legislation would constitute a serious threat to other members of society, particularly school children. And even informed and knowledgeable opponents who were aware of the fact that the legislation applied only to the private sex acts of consenting adults were firm in their opposition.

Much of the opposition to the legislation was quite specific in its reference to the Bible, especially the Old Testament. And it was affirmed that a vote for the Brown legislation was a vote to legalize sex acts which were in direct conflict with the Judeo-Christian morality and the law of God. The Third Book of Moses, Called Leviticus, Chapter 18 and Chapter 20:10, was quoted to establish the fact that adultery and other forms of sexually deviant behavior were totally contrary to the will of God and that the Biblical punishment for adultery was death. Predicating their case on this fact of Biblical law, the law, they insisted, should remain as it was and has been—a bulwark in the defense of public and private morality. Immoral sexual behavior should remain criminal behavior and be prohibited under all circumstances.3

This vigorous and constant affirmation that sinful behavior should be retained in the category of a crime against the state brought into focus the fact that particular religious groups were desirous of imposing their interpretation of “divine law” upon the rest of society, even in their private lives. The issue, thus, came into focus as one affecting the separation of church and state; at least so it seemed to me, and it was in this context that I began to analyze the arguments offered by the opposition and to relate them to the operating values and principles of American society.

It was frequently represented by most outspoken opponents of AB 489 that the principal factor attributed by the eighteenth century historian, Edward Gibbon, as responsible for the decline and fall of the Roman Empire was the erosion of Christian moral values. This, it was claimed, weakened the Empire internally and, according to Gibbon, denied it the ability to defend itself against its external enemies. A parallelism was drawn between the Roman Empire and the united States of America and the Gibbon thesis was employed in the argument against the enactment of AB 489 on the grounds that it would weaken the basic Christian values of American society, and, as a consequence, contribute to its decline and possible destruction.

To historiographers, however, it is a well known fact that Gibbon viewed the influence of Christianity upon the Roman Empire very negatively. For Christians, he believed, by stubbornly preaching “the doctrine of patience and pusillanimity” and “recommending a moral creed which they did not consistently practice” undermined and weakened the civic and moral character of the citizens of the Empire and, thus, contributed significantly to its downfall.4 His interpretation of the history of the Roman Empire, therefore, is contrary to that which was attributed to him by some of the most vocal opponents of the Brown legislation.

Incidentally, Gibbon's interpretation of the fall of the Roman Empire was not shared by Arnold Toynbee, one of the outstanding twentieth century historians. Toynbee, who concentrated his study on the factors responsible for the decline and fall of civilization, did not make as intensive study of the Roman Empire, but his broader study and evaluation of the factors responsible for the collapse of ancient civilizations led him to the conclusion that civilizations traditionally failed from their inability to respond to “crises.” Such failure, which resulted from the inadequacy of leadership, engendered, Toynbee argued, a lack of confidence among the masses and the ultimate withdrawal of commitment. That was Toynbee's explanation of the collapse of past civilizations; in his evaluation of the decline of the Roman Empire, Toynbee concluded that the factors responsible for that failure were under way several centuries before the advent or triumph of Christianity and that the permeation of the Empire with Christian values and ideas was not such a critical factor as interpreted by Gibbon.5

My reflection caused me to recall the numerous instances and circumstances in history when established churches sought to impose upon all of the members of society, through the use of the power of the state, a particular concept and pattern of morality and moral behavior. I recalled, also, that it had frequently been the state which, through the use of the secular power, had imposed upon its subjects a code of behavior which reflected a particular religious morality in total disregard for the conscience or the privacy of the individual.

In both instances the technique employed by the secular authority for the imposition of universal conformity to one code of behavior was simply to define particular sins as crimes and to make them punishable by the state.

To a certain degree this was the context, religious and political, in which the trial and crucifixion of Jesus Christ occurred in Judaea in about the year 30 A.D.6 The administration of Judaea, at that time, was the responsibility of the Roman Procurator, Pontius Pilate, who was charged with the responsibility of protecting the power and authority of the Roman Empire. In internal affairs, however, the Jewish citizens enjoyed considerable autonomy and governed themselves in accordance with custom and with the law contained in the Old Testament. The Jewish state, therefore, was theocratic in the sense that the scribes, or priestly class, dominated both the religious and the secular lives of the Jewish people and they exercised their power through their control of the Sanhedrin, a quasi-legislative and judicial council, which governed Judaea.

At the time of Christ, the Sanhedrin was dominated by the Sadducees, the most conservative of the three major religious elements in the Jewish community. The descendants of an early ruling class, the Sadducees were very orthodox in their beliefs and rigorously insisted upon the absolute observance of the teaching of the Old Testament, or the law of God, as the moral basis of Jewish society. They were, at the time of the crucifixion, a small but wealthy and powerful element in the Jewish community. Their principal rivals were the Pharisees, a wealthy and more numerous element in the Jewish community who were less orthodox inasmuch as they recognized the authority of tradition as supplemental to the fundamental law of the Old Testament in the determination of Jewish moral values. They were, therefore, more liberal in their observance of the laws and traditions of the Jewish society.7

The Essenes constituted a third and important segment of the population of Judaea. Adherents to an apocalyptic faith and dogmatically believing in a resurrection after death and, also, in the coming of the Messiah, the Essenes were, in some respects, closer to the Sadducees in thought and behavior in that they were more inflexible in their interpretation of the law. Inclined toward asceticism, the Essenes frequently engaged in a communal ownership of goods, the practice of celibacy and other forms of behavior characteristic of a style of life deeply religious in character.8

Among the Essenes were found a number of small extremist sects, the members of which strongly opposed Roman domination and some of whom were actively involved in “partisan” or underground forms of political resistance and rebellion. The most radical of these factions were called “sicarii” and they were of serious concern to the Roman government and also to the Sadducees and Pharisees, who viewed them as a threat to the peace and order of the state of Judaea. To a certain extent, it appears that Christ, who was identified with the Essenes, was close to, although not part of, the partisan or insurrectionary Essene elements.9

Christ evidently preached in small towns and villages and gathered around him small groups of followers. His emphasis upon the doctrine of brotherly love and his criticism of Jewish society for its emphasis upon form and ritual, rather than the spirit of the Jewish religion, brought upon him the enmity of influential groups, principally the Sadducees, and in the context of the uncertain political situation which prevailed, Christ was regarded by them as a potential incitor to social revolution, and, thus, a threat to the peace of Judaea and its enjoyment of quasi-autonomy within the Roman Empire.10

These are the factors which apparently accounted for Christ's arrest, trial, sentence and ultimate execution. The fact of history which is important to recognize is that the Jewish state, although a Roman province during the life of Christ, was strongly theocratic in character. Life in Judaea was clearly subject to the domination of the religious leaders and the law was a reflection of the moral principles of Judaism. Although Christ was crucified by the Romans, it was only after his arrest on the order of the scribes, by whom he was subsequently tried, found guilty and sentenced to death.11

This close relation between the religious leadership and the secular power subsequently became a characteristic of western civilization in Europe. Depending upon the time and circumstance, the state either dominated the church, or was subject itself to the power of the church.

These conditions emerged despite the fact that the early Christians advocated the separation of the state from religion—in Christ's words they were determined to “render unto Caesar that which is Caesar's and unto God that which is God's.” They consistently affirmed their willingness to maintain their loyalty to a pagan state, but they reserved the right to worship Christ and Christ only, as a matter of religious faith and conscience.12

Christian affirmations of loyalty were disregarded, however, and they became the victims of religious persecution. The justification for the periodic persecutions was the persistent refusal of Christians to worship the Emperor as a god or to worship any of the other officially recognized Roman deities. The first incident of persecution occurred in 64 A.D. during the reign of Nero, and Christians continued periodically to suffer persecution for approximately two and a half centuries. The persecutions were ultimately terminated with the issuance of the Edict of Milan by Emperor Constantine in 313 A.D. The Edict provided that each Roman citizen “should have freedom to worship God after his own choice.” Thus, the early principle of the Christians—freedom of religious worship—was implemented within the Roman Empire. In 392 A.D., however, Emperor Theodosius made “orthodox Christianity” the exclusive state religion of the Roman Empire and outlawed all heretical Christian sects and other religious faiths. Orthodox Christianity, thus, became the official church of the Roman Empire and the state dispensed with the principle of separation of church and state which had been acknowledged for almost a century.13

In time the Christian Church developed a formal, hierarchical organization and structure, and regional officers, or patriarchs, functioned as the supreme, co-equal ecclesiastical leaders of both the clergy and laity. In the fifth century the Patriarch of Rome became recognized as the Pope, or supreme head of the Christian Church. The claim to Papal supremacy was based upon the Doctrine of Petrine Succession and was established over the entire Christian world, with the exception of the Greek or Eastern Church, which remained schismatic because of its absolute refusal to accept the domination and authority of Rome in matters ecclesiastic. Two separate Christian Churches emerged, and over time minor differences of theology and doctrine gradually developed. From the perspective of the Roman Catholic Church the Eastern Orthodox Church was not only schismatic but also heretical. These differences have continued to the present time.

Slowly the basic theological doctrines of the Roman Catholic or Christian Church were developed and throughout the Christian community of western Europe they were accepted as universal truth. The concept of the Trinity was defined and affirmed, becoming the official doctrine of the Church through the action of the Council of Nicaea early in the fourth century, and slowly the Augustinian doctrine, of salvation through absolute faith as modified by Pope Gregory the Great, emerged, only to give way in the late Middle Ages to the doctrine of “salvation through faith and good works,” a result of the influence of the theological reasoning of St. Thomas Aquinas.14

The fall of Rome in the fifth century resulted in the destruction of the political unity of the Western Empire and for about a thousand years feudal states dominated those portions of the western world which had been subject to the authority of the western Roman Empire. The Roman Catholic Church maintained its religious unity, however, and consistently proclaimed its spiritual and religious supremacy over all Christians. In the eighth century the Roman Catholic Church succeeded in establishing itself as a secular power through the creation of the Papal States as a result of issuance in 756 A.D. of the Donation of Pepin by the King of the Franks. But the Church was unable significantly to expand its secular authority and the Papal States remained restricted in geographical area and political influence and power. Its expansion was opposed by the independent political entities which had emerged in western Europe after the fall of the Roman Empire. In some instances the secular rulers acknowledged the religious supremacy of the Roman Catholic Church, but even at the height of papal power, during the late Middle Ages, the claim of the Papacy to supreme authority over western European states by virtue of the Donation of Constantine, alleged in the 740’s or 750's to have been proclaimed by Emperor Constantine in the fourth century, was not realized.15 There were instances in which heads of state recognized the doctrine of Papal Supremacy, but this was far from universal, and as the power of national and territorial states developed, the claims of the Papacy were either ignored or categorically denied. In the latter instance it became the custom of the political rulers to impose taxes upon the Church, withhold Papal revenues, require the trial of the clergy in civil courts and even control the appointment of the ecclesiastical hierarchy. The Church did, of course, retain autonomy in the governance of its internal affairs, but the price the papacy paid for this independence was to sacrifice or abandon its claim to supremacy over the temporal or political states of western Europe.16

The Roman Catholic or Christian Church, therefore, was the universal church in western Europe and the inhabitants of the various states were Roman Catholics and membership in the Church was official and public, and not voluntary and private. Religious uniformity was enforced by the state and freedom of religious conscience was non-existent. Heretical sects and churches were verboten—there was one church, supreme and universal. And anyone who willfully rejected the essential theological doctrines contained in the Canon Law of the Church, for example, the Trinity, the sacerdotal power of the clergy, the doctrine of transubstantiation, salvation through faith and good works, or the efficacy of the sacraments was guilty of heresy.

The Church, of course, through its ecclesiastical tribunals indicted, tried, and determined the guilt or innocence of those charged with heretical religious beliefs—personal convictions of faith which were contrary to the principal theological doctrines of the Church. And since salvation for the Christian was achieved only through the acceptance of the sacraments of the Roman Catholic Church, as administered by an ordained priest, those individuals who were found guilty of religious transgression were not infrequently excommunicated and, thus, denied access to the sacraments and their souls condemned to perdition. The enjoyment of this power gave the Church tremendous political leverage, even enabling it in certain situations to dominate or significantly influence the leaders of secular states. Their choice was either to conform or risk excommunication, an impossible burden for a secular ruler to carry during the Middle Ages, the “Age of Faith.” The exercise of this tremendous power enabled the Church, also, to control or dictate religious belief and to prevent, therefore, the emergence of heretical sects. The imposition of punishment, other than excommunication, upon religious non-conformists was assumed to be a responsibility of the state through the exercise of its police power. The execution of heretics, which was on certain occasions imposed as punishment was performed by the state, since heresy was both a Christian sin and a crime against the government. Different penalties were invoked by the state in the exercise of its secular authority; sometimes deprivation of civil rights, confiscation of property and exile were regarded as adequate in severity.17

This condition of affairs, the close affiliation between the state and the church, which was characteristic of western Europe during medieval times and the late Middle Ages and the Renaissance, was not eliminated as a consequence of the Protestant Reformation which occurred in the sixteenth century. In those areas of western Europe which became Protestant the national states, or other political entities, established the same identification with the Reformation, or heretical churches. The Protestant churches became state or established churches and maintained the same authority over the religious life of the people as did the Roman Catholic Church in those areas which retained their loyalty to the Papacy. And in this instance, also, the Protestant state administered the punishment appropriate to the offense or crime against the Church—a crime, of course, which was by law a crime against the state. If the guilt were that of heresy or religious dissent from the doctrines of the established Protestant Church, similar penalties were administered as in Catholic countries, loss of civil rights, confiscation of property, exile, or even death.18

In the eastern portion of the Roman Empire, or the area known as the Byzantine Empire, which fell in 1453 to the Turks, a thousand years after the collapse of the western Roman Empire, the state dominated the Orthodox Christian Church. The Emperor was both the secular and spiritual leader of the people and maintained a state-church structure which is described as Caesaropapism. The arrangements were unbalanced in favor of the secular power and the Greek Orthodox Church was almost totally subsumed under the temporal authority.19

A similar structural arrangement characterized the Russian Empire, as it emerged during the sixteenth and seventeenth centuries. By the nineteenth century, the Church was practically apart of the bureaucracy of the Russian Empire. The office of Patriarch, the spiritual or ecclesiastical head of the Russian Church, was abolished and the Church became subservient to the Czar and clearly an integral part of the state. This condition was one of the factors which accounted for the fact that when the Russian communists succeeded in establishing a Soviet or communist state, immediate action was taken to destroy the Russian Orthodox Church and all other forms of organized religion. Religion was required to be entirely private in character and no church was permitted the right to proselyte for members. Freedom of religious worship was drastically restricted, limited almost exclusively to private worship in the home, and Christians and members of all religious faiths were subjected to varying forms of discrimination.

The communist state did not abandon, however, the Russian tradition of authoritarianism—secular control of every aspect of the life of the subject of the state—upon the defeat and overthrow of the Tsarist imperial government. A new church was created, not Christian and not Judaic, but communist, and the new theology was the doctrine of Marx, as interpreted by Lenin and Stalin. Thus, the state became also a church and the Russian people were compelled, as an obligation of membership in the state, to conform to its secular ideology. And membership was, of course, not private and voluntary, but public and compulsory; freedom of conscience with respect to the creed of the communist state was non-existent and not even conceivable.20

Upon the discovery and opening of the New World, western Europeans who desired freedom of religious conscience and who continued to experience religious persecution and discrimination in Europe fled to the New World and became its earliest colonists. Some of the early settlers left the Old World solely for economic reasons, of course, and some were motivated by the spirit of adventure or by the desire to experience a greater degree of political freedom, but substantial numbers left for religious reasons. Their goal was to establish for themselves in the western or New World the opportunity to practice religious freedom and, thus, to follow the dictates of their conscience. But even in colonial America established churches were created by the colonial governments, in some areas Roman Catholic and in others Puritan or Episcopal, and the independent, non-conformists experienced trouble in their efforts to live freely in accordance with their religious convictions.21 After two centuries of colonial history, however, the principle of freedom of religious conscience emerged and when the united States achieved their independence and the federal government was created pursuant to the adoption of the united States Constitution, it was recognized that the basic principle upon which the new nation or federal state should be established was that of the separation of church and state. This concept was incorporated in the First Amendment of the Bill of Rights and is probably one of the most important provisions of the Constitution. It established, as a principle of constitutional law, that religion was a matter of individual conscience, and it prohibited the Congress from enacting any law respecting an establishment of religion, or prohibiting the free exercise thereof. The courts have consistently affirmed this constitutional doctrine that the church, whatever its nature, should not impose, through the exercise of the secular power, its will upon the individual citizen. This principle and its enforcement in law and tradition accounts for the variety of religious faiths in this country and the freedom of individuals to pursue their consciences.22

At this point, I suggest that the issue that was before the Legislature in its consideration of AB 489, was essentially that of the meaning of the constitutional principle of separation of powers.

If the issue could be established as one in which the change in state law being proposed was one which affected only the individual and his privacy as a citizen and that it merely protected individual citizens against the intrusion of the state into their private lives, it would seem to me that it was an appropriate piece of legislation to enact. The debate before us was, therefore, to establish that that was the nature of the Brown legislation and that it did not constitute a threat to the safety and security of society and that it did not change in any way present law which makes a crime of sexual behavior which deviates from normal and which is engaged in outside of the privacy of one's home, or which is imposed upon others through force or through seduction.

This clearly appeared to be the fact and those who argued that such immoral behavior constituted a violation of moral behavior, as stated in the Bible, could hardly justify their demand for the imposition by law of a standard of personal and private behavior which other citizens did not accept as an article of religious faith or religious morality. On this subject, I would like to quote John Stuart Mill's “On Liberty.”

There is, in fact, no recognized principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preference. Some, whether they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interests amenable to governmental control. And men range themselves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government. And it seems to me that in consequence of this absence of rule or principle, one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned. The object of the Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part wh1ch merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.23

1See Appendix, pp. i-iv. Letters of support from the State Bar of California and the California District Attorney's Association. The Judiciary Committee vote was seven “ayes” and two “noes.” [These appendices are not included. —TB]

2See Appendix, pp. v-xii. Letter from Senator Alfred Song, Chairman of the Senate Judiciary Committee and Legislative Counsel Opinions made in response to questions asked by Assemblymen Paul Priolo and Willie L. Brown, respectively. [These appendices are not included. —TB]

3A careful examination of the letters addressed to me with reference to AB 489 indicated that the vast majority of the writers were in opposition and that they were poorly informed about the intent, scope and specific provisions of the legislation. They were of the opinion that it was a much more far-reaching legislative proposal than was actually the case. See Appendix, pp. xiii-xvii, for examples of such correspondence. Usually the statements of the opponents were quite simple, however, and may be classified into three major categories of opposition: (1) that the legislation would violate the laws of God, (2) that it would permit homosexuals and sexual deviates to corrupt the youth in the public schools, and (3) that its provisions would undermine the nation's morality and weaken its capacity for survival. After long study and careful deliberation, I concluded that the negative arguments were predicated primarily upon emotional apprehension and fear and not upon substantive fact. Furthermore, my scrutiny of the correspondence clearly established that there had been no objective and reasonable effort made to inform my constituents about the specific provisions of the Brown legislation.

4Peter Quennel, “Gibbon: An Ugly, Affected, Disgusting Fellow,” Horizon, XII (No. 3, 1970) , 82-87. Gibbon was an eighteenth century historian who was powerfully influenced by the rationalism of that era and thought as a Deist, not a Christian. Gibbon was a great admirer of the Roman Empire and in his history of its decline and fall, a work which required twenty years of his life to research and write, observed in the last chapter: “In the preceding volumes of this History, I have described the triumph of barbarism and religion.” This brief statement summarized the thesis which was basic to his interpretation that the fall of the Empire was brought about in part by the German barbarian invasions and the establishment of Christianity as the official religion. Edward Gibbon, History of the Decline and Fall of the Roman Empire (The Modern Library, New York, 1931) II: 1443, 1458.

5Arnold Toynbee, Civilization on Trial (Oxford University Press, New York, 1948), pp. 227-252. Toynbee not only disagreed with Gibbon, but reasoned that the development of religious thought and influence has been a positive contribution to the refinement and improvement of civilization and culture. In fact, his hope for the future was predicated upon the expectation that refinements in Christianity as a religion would constitute a significant factor in the future betterment of society and man.

6Judaea was a portion of the historic state of Palestine which had been conquered by the legions of Rome under the leadership of General Pompey in 63 B.C. See J.H. Hexter, The Judeo-Christian Tradition (Harper and Row, N.Y., 1966) pp. 1-40.

7Kurt Schubert, “Jewish Religious Parties and Sects,” The Crucible of Christianity, Arnold Toynbee, ed., (New York: World Publishing Co., 1969), 87-88. Hereafter cited as Toynbee, The Crucible of Christianity.

8Kurt Schubert, “Jewish Religious Parties and Sects,” Toynbee, The Crucible of Christianity, 87-88.


10Walter Ong, “Second Edition: Secular and Religious,” Center Magazine, VIII (number 4, July/August, 1975), 69-77.

11S.G.F. Brandon contends that Christ was executed by the Romans after his trial by the Sanhedrin because of what appeared to be his leadership in the Jewish struggle against the Roman Empire. S.G.F. Brandon, “The Trial of Jesus,” Horizon, IX (No. 1, 1969), 4-13. This interpretation is rejected by Francis Simmons in “Doctrine and Democracy,” Commonweal, September 26, 1970. Simmons places greater emphasis upon Jewish concern about the nature of Christ’s religious teaching.

12Ong, loc. cit.

13Traditionally, however, the Roman state, whether a republic or an empire, had dominated the religious life of the people. The head of the church was the pontifex maximus. Edgar E. Johnson, An Introduction to the History of Western Civilization (Ginn and Co., New York, 1959) I: 227-262.

14Herbert J. Muller, The Uses of the Past (Oxford Univ. Press, New York, 1952), pp. 198-99.

15Edgar N. Johnson, An Introduction to the History of Western Civilization, I: 388-90. The Donation of Constantine was proved to be a forgery in the fifteenth century by Lorenzo Valla.

16Steward C. Easton, The Western Heritage from the Earliest Times to the Present (Holt Rinehart and Winston, New York, 1961), pp. 238-43. Bryce Lyon, ed., The High Middle Ages, 1000-1300 (Univ. of California, Berkeley, 1964), pp. 87-117. Johnson, op. cit., I: 634-35.

17Johnson,op. cit., I:611-613.

18Georgia Harkness, John Calvin, The Man and His Ethics (New York, 1958) , Chapter XVI, “God and the State.” See also Roland Bainton, The Travail of Religious Liberty, (Harper Torchbooks, TB-30), pp. 33-93.

19Toynbee, op.cit., p. 179.

20Toynbee, op. cit., p. 182.

21“Landmarks of Religious Liberty: The Flushing Remonstrance,” Church and State XXVIII (No. 9, 1975), 8-9. See Appendix, pp. xviii-xix. [This appendix is not included; click the link instead. —TB]

22Several states retained established churches until the nineteenth century. The Congregational Church, for example, was not disestablished in Connecticut until 1818 and in Massachusetts until 1833. Roland Bainton, op. cit., pp. 26-27.

23John Stuart Mill, On Liberty (Appleton-Century-Crofts, Inc., New York, 1947), pp. 9-10. Published originally in 1859.

Appendix: Letters from constituents

Many letter writers insisted that AB 489 would legalize bestiality or pedophilia, but the legislation was carefully drafted to address only matters between consenting adults. Sen. Rodda's original document contained legal opinions from the Legislative Counsel Bureau expressly stating these points. —TB


April 14, 1975

Honorable Albert S. Rodda
State Capitol—Room 4048
Sacramento, California 95814

Dear Honorable Rodda:

AB 489 by Assemblyman Willie Brown, a bill now being considered, has come to my attention. It proposes to legalize the following:

  1. Homosexual activities between consenting persons 18 years of age and older;
  2. Remove adultery from the penal code;
  3. Open up the public school classrooms to homosexuals, and to permit homosexuals to be credentialed as public school teachers;
  4. Keep homosexual public employees from being discharged since their acts would not be a violation of state law;
  5. Legalized sex with animals;
  6. Change sex education courses in the public schools to include homosexuality, sodomy, bestiality and adultery, since these activities would no longer be considered “unnatural” or a crime; and last of all
  7. The word “private” does not appear in the bill.

Senator Albert Rodda
California State Senate
Sacramento, Calif.

Dear Senator:

Before you cast your vote in the Senate this week on AB 489, may I share my views with you on its potential long-range effects on our society.

In this era of the serious breakdown of the family unit, I am especially concerned about the legalization of adultery and homosexuality—and specifically the amendment to the Education Code allowing for homosexual teachers. My son came home last week with a parallel situation that brought this all into focus. His young, handsome, personable 8th grade science teacher had told the class about the time not too long ago when he had had too many drinks, he went 80 mile an hour down the highway, had the cops chasing him, etc., etc, Now the use of alcohol is legal, and you can be sure that there were a number of youngsters in that class who are setting their standards by the example of this teacher whom they really admire. Now, IF adultery and homosexuality become legal, our teachers will feel free to speak of their personal lives in these areas. As our young people pattern their lives after the examples of such adulterous and homosexual teachers, we will see a further breakdown in our home and family units.

Perhaps it should be noted also that despite some claims for Church backing for this bill, in a poll conducted by our United Methodist newspaper over a large area, 95% of the people were opposed to the legalization of homosexuality.

We trust that you will cast your vote against adultery, homosexuality, and perversion and that further, you will develop legislation to encourage and strengthen the family unit.

Thank you for your kind attention.

Sacramento, California
April 13, 1975

Judiciary Committee
California Senate
Sacramento, California

Dear Sir,

I understand that Assembly Bill #489 which would legalize homosexuality and even allow these deviates to teach in public schools, will be considered at a hearing on Tuesday April 15, 1975. I can’t attend the hearing, but want to lodge a strong objection to this bill. There is plenty of evidence that homosexuals have been responsible for a number of gruesome deaths; it is likely that many others have resulted from the unpredictable urges of these abnormal people.

I think homosexuality should be considered a sickness and treatment provided. We should not accept it as normal personal freedom. Above all, persons practicing this perversion should not be allowed to associate with, teach or work with young people of any age. In addition to spreading the philosophy of their twisted personalities to young minds, there a great danger that they would be attracted to engage in their acts with children and could very well kill to silence or force submission.

I urge you and other recipients of this letter to kill this dangerous bill before it does irreparable harm to defenseless people and to our plunging morel standards.

Sincerely yours,

CC: Gov. Edmund G. Brown, Jr.
Sen. Albert Rodda

1 comment:

Desert Observer said...

Thanks for posting the background of AB 489. I didn't recall that it's passage was such a cliff-hanger. In my view the legislation is the most significant of LGBT steps forward in this state and I'll always be grateful to Willie Brown for carrying the bill. Many probably don't realize his district also included a large Afro-American constituency who didn't favor what he did for us.