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US Supreme Court Rules Consensual, Adult Sexual Acts Protected
Commentary on: Lawrence v. Texas, 02-102
by Earth
Jun 26, 2003
Lawrence v. Texas, 02-102
[Decided June 26, 2003]

In a time when there are seemingly daily reductions in privacy: more news of increasing government surveillance, broad installation of semi-secret databases of personal information, tighter restrictions on speech and movement, and reduced right to criminal due process, the Supreme Court of the United States made a surprisingly strong statement against criminalization of private conduct. The majority opinion begins with the following sweeping statement about liberty:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. [Kennedy, writing for the majority, 02-102, June 2003]
The decision to overturn the Texas law was made 6-3 (Scalia, Rehnquist, Thomas dissenting), but O'Connor did not join the 5-4 majority in asserting the broad right to privacy in consensual sexuality activity. O'Connor joined the majority in finding that the law was unconstitutional because it banned a certain activity only for a sub-class of people (homosexuals) where that same activity would be legal for heterosexuals. Her view is that:
A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. [O'Connor, concurring in part, 02-102, June 2003]
The Majority Opinion
The majority opinion, written by Kennedy, however, was much much broader and explicitly overturns an older case as well, in which the US Supreme Court had found that Georgia's anti-sodomy laws were constitutionally permissable (Bowers v. Hardwick, 478 U.S. 186, 1986). The majority wrote:
The statutes ... seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.[Kennedy, writing for the majority, 02-102, June 2003]
And further:
The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.[Kennedy, writing for the majority, 02-102, June 2003]
The Dissenting Opinions
Both Scalia and Thomas wrote dissenting opinions. Scalia, the leading right-wing member of the current Court, dissented strongly and, in an unusual show of animosity, read his dissent aloud from the bench. His dissent included a number of strongly bitter attacks against the majority opinion, including things like: "To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis* set forth in Casey."
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. [Scalia, dissenting, 02-1002, June 2003]
Scalia argues violently against the concept that there is any Constitutionally protected conduct here, dismissing it as absurd. He takes the other issues in the majority opinion more seriously, but finds against the plaintiff on all of them. He disagrees with O'Connor that there is an Equal Protection issue at stake:
Justice O'Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality. [Scalia, dissenting, 02-1002, June 2003]
Both Scalia and Thomas argue that any changes to these types of laws should be left to the legislature and not be 'legislated from the bench': "It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed." [Scalia, dissenting, 02-1002, June 2003].

This decision attempts to increase the breadth of protection for personal privacy for private conduct and it remains to be seen how much impact it will have on future Court decisions.

* stare decisis: "to stand by that which has been decided", the tradition that once a Supreme Court group has made a decision, the following courts should follow the majority reasoning so that law isn't constantly fluctuating based on the whim of the court.