The ramifications of Lawrence v. Texas

...In other words, the Court found that fundamental privacy protections apply to homosexual as well as heterosexual intimacy...

...No longer can consensual adult sexual behavior conducted in private between persons of the same sex be criminalized merely because a legislative majority considers the acts or the actors repugnant...

...When the Court starts reading substantive values such as privacy or liberty of contract into the due process clause, it substitutes itself for the legislator, making higher law instead of interpreting it...

...Universalistic principles should not be deemed "foreign," even if someone else has insight into their import and reach before our own Court does...

...One can only speculate about the first question: we know that several justices are close to retirement and that a presidential election is coming up...

...The Bush administration has not made much noise against this decision, knowing full well that the moral majority, unlike the libertarians, has nowhere else to go in the voting booth...

...Certainly it would be preferable from the democratic perspective to have a less rigid constitution...

...namely, that the sole purpose of sodomy laws today is to stigmatize, criminalize, and terrorize one group only: homosexuals...

...indeed, it cannot withstand criticism in a secular society, where laws must be justified without referring to a particular religious worldview...

...What about the legitimacy of citing the decisions of constitutional courts in other polities...

...Politics What about the politics of Lawrence v. Texas...

...It would surely undermine the Court's legitimacy if it overruled itself again on the same issue in the near future...

...v. Casey (1992), which upheld the core of Roe, the Court had affirmed the substantive dimension of the liberty and privacy at stake in personal decisions relating to marriage, procreation, contraception, family relationships, and decisions arising in the context of intimate association...

...Why did the Court make such a sweeping decision, and what follows from it...

...Otherwise we would be prisoners of an eighteenthcentury worldview, and our constitutional interpretation would be immune to learning...

...The reference is to Loving v. Virginia, [1967], which struck down laws against marriage between blacks and whites...

...Equal protection would have been the easier and less controversial route to take, as Justice Sandra Day O'Connor suggested in her concurrent opinion...

...But this will not do...

...Or was this a triumph of the libertarian over the moral majority brand of conservatism within the Court (Kennedy and O'Connor over COMMENTS & OPINIONS Antonin Scalia and Clarence Thomas) and a nod to the libertarian cause within the Republican Party...

...According to Kennedy, "To say that DISSENT / Fall 2003 n 5 COMMENTS & OPINIONS the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim that individual put forward just as it would demean a married couple were it to be said that marriage is simply about the right to have sexual intercourse...

...But morals legislation grounded on good reasons remains perfectly permissible...

...Justice Anthony Kennedy's majority decision finally acknowledged that the issue at stake never was the "act of sodomy" per se, but rather the right to choose an adult intimate relationship along with the intimacies it entails...

...Even if equal protection were invoked to strike down same-sex sodomy laws, gender neutral sodomy laws could still stand and do their discriminatory work...

...The sweeping reach of Lawrence extends privacy protection well beyond the limits Scalia and others tried to establish in 1986, which were drawn around the paragon intimate association, the family...

...The issue in Bowers had to be confronted directly: the equal protection route was barred by the Court's earlier decision that turned sodomy into a marker for homosexuality...

...What the Lawrence decision does by reaffirming and extending privacy analysis is to shift the burden of proof onto the regulators...

...The critique of substantive due process may be cogent, but insofar as the Court engages with substantive issues, it must be possible for the judges to argue about them, learn from experience, and change their minds...

...But as Stevens correctly argues, tradition is not enough of a criterion, especially when we come to see past "values" as based on prejudice or narrow-mindedness...

...As things now stand, however, changing our amendment rule seems almost inconceivable for the same reasons that the Constitution is hard to amend in the first place: it would require a constitutional amendment...

...Because our Constitution is extremely difficult to amend, the more democratic route of registering value change or moral learning via the political process on the constitutional level is all but closed...

...JEAN L. COHEN is a professor of political science at Columbia University and author, most recently, of Regulating Intimacy: A New Legal Paradigm...

...Did the 6-3 majority deliberately reaffirm and extend privacy analysis and overturn Bowers in this sweeping way in order to make it hard for the Court to undo the line of privacy jurisprudence that secures Roe and now homosexual rights...

...Scalia wants this restricted to rights deeply rooted in our tradition and history...

...Background In its infamous 1986 decision in Bowers v. Hardwick, the Court refused to apply to "homosexual intimacy" the privacy jurisprudence it had developed in a line of rulings regarding intimate association...

...Indeed, she maintains that Lawrence raised different issues than Bowers, which she still defends, insofar as the Georgia law at issue in 1986 was gender neutral and hence raised no equal protection arguments, while the Texas law is not...

...But I cannot come up with any convincing arguments for regulating fornication, masturbation, or adultery...

...Scalia is right to note in his dissent that this clause refers primarily to legal procedure...

...Quoting Justice John Paul Stevens's dissent in Bowers, Kennedy reminds us that the mere fact that a governing majority in a state traditionally viewed a practice as immoral is insufficient reason for upholding a law prohibiting the practice...

...The Court cites legal developments elsewhere for the same reason...

...Neither history nor tradition could save a law against miscegenation from constitutional attack...

...Interest in "foreign" legal developments in our globalizing world does not strike me as illegitimate...

...Why did it trigger innumerable radio and television talk-show debates...

...In other words, it came down on the side of justice against injustice...

...That this decision matters a great deal to those affected is no surprise...

...But why did it receive several days' worth of full-spread frontpage headlines, in-depth articles, and analysis...

...Thus the Court, by interpretive fiat, transformed a 6 n DISSENT / Fall 2003 neutral sodomy law into a law against homosexuals...

...through Roe v. Wade (1973), which protected the right to choose an abortion as an intimate decision covered by privacy analysis...

...Isn't privacy analysis based on substantive due process an example of illegitimate, activist judicial review...

...Thus the Court resorts to substantive due process to bring the Constitution up to date with contemporary knowledge and to strike down laws based on prejudice or introduced for discriminatory purposes...

...From Griswold v. Connecticut (1965), which first applied "substantive due process privacy analysis" to the right of married couples to use contraception...

...It's up to those who would pass laws about these practices and relationships to provide good reasons for doing so: tradition and some vague reference to "morality" are not good enough...

...the danger lies more in justices' keeping their blinders on...

...The Court did make a choice on the level of justification: it chose to argue in terms of post-conventional morality rather than impose a traditionalist religious worldview...

...Constitutional privacy protection, on the other hand, makes it impossible to criminalize "homosexual conduct"—sodomy—per se, and hence pulls the rug out from under discriminatory state policies based on such stigmatization...

...But this does not amount to unjustifiable partiality in the way Scalia implies...

...Everything turns on what is deemed a fundamental interest...

...It overturns only one type of "morals legislation": the standard version based on the premise that only procreative sex within heterosexual marriage is legitimate, and which invoked "tradition" or religion to justify laws banning everything else...

...In so doing, it unwittingly revealed a deep truth...

...The Constitution must be a living thing, adaptable to the present...

...Kennedy cited a 1981 gay rights opinion of the European Court of Human Rights, among other historical and contemporary references, to show that the decision in Bowers was out of step with developments in other Western countries...

...To Scalia, "This effectively decrees the end of all morals legislation...

...I am also at a loss as to why one would want to prohibit or deny recognition to homosexual marriage...

...Indeed, the two constitutional issues are connected...

...In Bowers, however, the Court refused to extend these protections to homosexual intimate association, arguing that the Constitution does not confer a right to engage in "homosexual sodomy" and invoking the history of Western civilization and the Judeo-Christian tradition in order to show that homosexual sodomy has long been deemed immoral and is, indeed, a "crime against nature...

...I do not see how this policy can survive the new ruling, because its condition of possibility was the Bowers decision, now overturned...

...There is nothing illegitimate about that sort of partiality...

...constitutional interpretation to key developments in supranational human rights law...

...Emphasis added...

...Moreover, Lawrence overruled the Court's own seventeen-year old precedent, which dismissed the same constitutional argument that the Court now embraces, and it cited a decision by the European Court of Human Rights to make its new case...

...It should come as no surprise, then, that pursuant to Lawrence, a legal challenge has just been made to the Clinton administration's infamous "Don't ask, don't tell" policy that allows homosexuals into the military if they don't engage in criminalized homosexual acts and if they are quiet about their orientation...

...Let's look at Scalia's scathing dissent, with its warning that state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are now all at risk because Bowers has been overturned and a right to privacy covering adult intimacy has been "discovered" in the Constitution...

...Let's look at the list...

...O'Connor insists, rightly, that mere disapproval without any asserted state interest is not a sufficient rationale under the Equal Protection Clause of the Fourteenth Amendment to justify discrimination...

...However, Scalia also acknowledges that the judges have for a very long time now "interpreted" the due process clause as protecting fundamental liberty interests unless there is a compelling state interest at stake...

...No longer can homosexuals or lesbians be stigmatized as sexual deviants by the law...

...Scalia found this to be a dangerous imposition of foreign views on DISSENT / Fall 2003 • 7 COMMENTS & OPINIONS American constitutional law...

...I can imagine coming up with good reasons for outlawing bestiality, bigamy, and adult incest, and for regulating prostitution and obscenity...

...It may be that the decision, like all law, unavoidably favors some groups against others...

...Why did it lead to such euphoria on the part of gays, lesbians, and civil libertarians, and such rage on the part of conservatives...

...Because the Texas statute at issue criminalized only homosexual sodomy, treating the same conduct engaged in by heterosexuals differently, it was obviously intended to register moral disapproval of a group...

...Here I must be very brief...

...The Court's case does not turn on this reference, but it does serve to link U.S...

...In its 6-3 vote, the Court overturned a Texas law that criminalized "homosexual" sodomy, thereby striking down not only all same-sex sodomy laws (on the books in Kansas, Oklahoma, and Missouri), but also all "gender neutral" laws criminalizing sodomy between heterosexuals and homosexuals alike (in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia...

...I will try to answer these questions by providing a bit of background and by analyzing the doctrinal, cultural, political, and constitutional issues it raises...

...If no other justifications can be found, if no other state interest exists in regulating or criminalizing intimate relationships, then they must be left alone...

...This premise is no longer considered self-evidently true...

...For it was the Court itself that turned the Georgia case into a question of "whether the federal Constitution confers a fundamental right upon homosexuals to engage in sodomy...

...Is he right...

...Constitutional Issues Finally, I must mention two major constitutional issues raised by this case...

...and more recently, Planned Parenthood of Southeastern Pa...

...Doctrine What makes this decision radical, however, is the fact that it is grounded in privacy analysis rather than equal protection arguments...

...It is indeed hard to defend substantive as distinct from procedural due process, for the Fourteenth Amendment provides that states may deprive citizens of their liberty so long as they adhere to "due process...

...Rather, it faced up to the fact that the old premises and justifications for morals legislation in this country are no longer sustainable...

...And why should European law or that of any other polity be relevant to the Court's interpretation of our Constitution...

...Unless the substantive validity of the laws' infringement of privacy and liberty interests is addressed, the stigma would remain even if a particular law were unenforceable due to equal protection reasons...

...As for the second question, theorists can do better...

...In other words, argument, not "tradition," is needed to justify such prohibitions...

...The Lawrence decision overturned Bowers on both counts...

...After all, the Court does not exist in a political or social vacuum...

...Moreover, the result of criminalizing homosexual sodomy is to stigmatize people who engage in same-sex relationships and invite discrimination against them in both the public and private spheres...

...through Eisenstadt v. Baird (1972), which granted the same right to non-married couples on equal protection grounds...

...Thus, Scalia's polemics notwithstanding, the Lawrence decision did not illegitimately take a side in the "culture wars...

...But the point was of course to show that moral learning about the integrity and dignity of all human beings, including homosexuals, must triumph over entrenched prejudice and that a Western consensus was emerging regarding basic human rights...

...The Lawrence decision struck down the Texas law on the grounds that it violates privacy and liberty interests protected by the due process clause of the Fourteenth Amendment...