Lawrence et al v. Texas
As pretty much everyone has mentioned, the Supreme Court decided today (well, yesterday for most of you) that Texas doesn't have the right to forbid anal sex between gay men.
As so many others have said, this is great news for gay people. It's great news for straight people too, though, and for people of any of the dozens or hundreds of other persuasions possible.
It's good news for gay people in the four states where sodomy laws applied only to same-sex couples; it's good news for everybody who enjoys non-intercourse sex in the 9 states (plus Puerto Rico and the military) with general sodomy laws.
It's good news for unmarried people in the states that criminalize cohabitation or fornication (such as Alabama, Florida, Georgia, Idaho, Minnesota, North Carolina, Virginia and possibly others).
It's good news for married-but-straying people, swingers, polyamourites, and practitioners of various other open marriages in states that criminalize adultery (such as Florida, North Carolina and possibly others).
It's good news for the kinky (er, those who like their sex lewd and lascivious) in states like Florida, Massachusetts and Virginia.
It's good news for men and women in North Carolina who like staying in hotels with one another.
It may even be good news for divorced couples trying to reconcile in Michigan.
Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement -- "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy ... ," 478 U. S., at 190 -- discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more farreaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They 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. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. 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.
2003-06-27 08:25:00
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Politics::Legal
