“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
That quote is from the first paragraph of Lawrence et al. v. Texas, which will likely be considered the most important Supreme Court ruling of the year and quite possibly of this young decade.
In 1986, the Supreme Court ruled it constitutional to make criminals out of homosexuals via anti-sodomy laws when it upheld Bowers v. Hardwick.
In that case, officers were called to a home in Georgia on suspected weapons violations; upon entering the home, the officers found no weapons, only two men having sex in the bedroom. They were arrested and charged with criminal sodomy.
The law under which the men were prosecuted outlawed sodomy (defined as oral sex, anal sex or penetration of another person with an object) and applied to both heterosexuals and homosexuals. The Court, however, delivered an opinion based entirely on homosexual conduct and justified the law by saying that a long history of moral disapproval of homosexuals existed in our nation.
In Lawrence, the Texas law applied only to persons of the same sex. The court held six to three that the law was unconstitutional.
Justice Kennedy read the majority opinion aloud from the bench, an uncommon step and one meant to indicate the seriousness of the ruling.
The court rejected the argument from Bowers that there is a “longstanding history in this country of laws directed at homosexual conduct as a distinct matter,” pointing out that sodomy laws have traditionally been aimed at non-procreative or predatory sexual acts. Homosexuals were not even understood to exist as a class of individuals defined by their sexual proclivities until the first part of the 20th century.
In the last half of that century, as social awareness of homosexuals increased, anti-sodomy laws came to represent a public statement against homosexual activities.
But as the social definition of sodomy changed to implicate homosexuals as a class, and the public became more aware of existing (but rarely and selectively enforced) anti-sodomy laws, those laws fell away in most states.
In 1961, every state had sodomy laws. At the time Bowers was heard, 24 states and the District of Columbia still did. Today, only 13 states have sodomy laws and many of those are already under review.
If those 13 states tried to put in front of voters new legislation banning sodomy – either homosexual sodomy or heterosexual sodomy – I doubt that more than a small handful would pass. What has kept these laws on the books is their antiquity, not their rationality.
An important aspect of the court’s ruling is that Bowers was overturned and the Texas statute was deemed unconstitutional under due process, rather than under the Equal Protection Clause. This means that the court considers choices regarding consensual, adult sexual conduct performed in private to be a fundamental liberty – for everyone.
Justice Scalia, in his maddening and manipulative dissent, argues that this ruling will prevent states from making any law regarding morality, including regulations against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” That rationale is faulty, misleading and simply false.
What the court is saying is that there are some things so private that the state holds no real interest in regulating them. What sex acts two consenting adults perform in the privacy of their own home is one of those things.
Scalia’s list of supposedly comparable infractions betrays his real motivation, one shared by many in this country: to impose Judeo-Christian morals upon all Americans, even when the actions are done in private.
Take masturbation, for example. What could possibly justify a law regulating non-commercial masturbation performed alone or with another adult if it is conducted in a private space? The state has absolutely no legitimate interest in that sort of regulation.
In the case of adultery and bigamy, one person is reneging on a legal contract mediated by the state and that gives the state legitimate interest in regulating it.
In the end, this judgment will have far-reaching effects. The court’s ruling was broad and sweeping, virtually invalidating any sodomy laws on the books today and opening the door for same-sex marriage. I only hope that it will not take another 17 years.