Supreme Court Recognizes Liberty to Engage in Private Homosexual Activity
On June 26, 2003, the Supreme Court in Lawrence v. Texas, 539 U.S. ____ (2003), struck down (6-3) the Texas law that criminalized private, consensual, adult, homosexual conduct. In so ruling, the Court specifically overturned its 1986 ruling in Bowers v. Hardwick, 478 U.S. 186 (a 5-4 decision), that upheld the conviction of one Mr. Hardwick for engaging in a sexual act with another man in violation of Georgia law. The result of this ruling is that the Constitution now recognizes and protects the liberty of individuals to engage in sexual acts with persons of the same sex, and the States cannot proscribe such conduct as long as it is private and between consenting adults. This ruling is a tremendous victory for the militant gays, who have waged an unrelenting fight to overturn Bowers for the last seventeen years. On the other hand, this is a ruling that presents grave concerns for many because the Court’s rationale, if extended to its logical conclusion, can undermine moral-based laws in all of the fifty states with respect to such matters as bigamy, same-sex marriage, prostitution, adultery, bestiality and obscenity. The Lawrence case will certainly become one of the most well-known cases of our time, paralleling Roe v. Wade in its fame.
One unusual aspect of the majority ruling is that the majority not only overturns the 1986 Bowers case, but they went out of their way chastise, lambaste and denigrate the opinion of the Court whose personnel has changed in the intervening 17 years. The current majority criticized the Bowers court for failing to recognize the personal liberty to engage in consensual homosexual sodomy. While the majority in Lawrence repeatedly said that the result reached in Bowers was wrong, the majority never did assail the validity of the “fundamental rights” analysis that the Court used in Bowers. But curiously, despite its repeated criticism of the result in Bowers, the 2003 majority never did declare the new “liberty” to be a “fundamental right.” Instead, the Lawrence Court invalidated the Texas sodomy law based upon its violating a “liberty” found in the Due Process Clause of the Fourteenth Amendment. The result of this is to leave intact the very rationale that the 2003 majority criticized in Bowers.
To understand the full significance of Lawrence one must read both the majority opinion (by Justice Kennedy—joined by Justices Stevens, Souter, Ginsburg and Breyer), Justice O’Connor’s concurring opinion, and Justice Scalia’s dissenting opinion (joined by Chief Justice Rehnquist and Justice Thomas).
I. Justice Kennedy’s Majority Opinion
The Court held that the right of an individual to engage in sexual conduct with another person of the same sex is a “liberty” that is protected under the Due Process Clause of the 14th Amendment. The Court characterized this right as a part of the right to privacy that the Court identified in Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); and Roe v. Wade, 410 U.S. 113 (1973). The Court in Lawrence did not characterize the newly recognized right as a “fundamental right.”
The Court held that the personal right to engage in private sexual conduct that was recognized in Griswold v. Connecticut, 381 U.S. 479 (1965), and which was specifically extended to conduct outside of marriage in Eisenstadt v. Baird, 405 U.S. 438 (1972), should have been recognized by the Court in Bowers (1986). The majority quoted a statement in Eisenstadt which it said should have been controlling in Bowers (slip opinion, p. 11) and which now has become the controlling principle:
"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 405 U.S. 453.
The majority also cited Cary v. Population Services Int’l, 431 U.S. 678 (1977), as additional support. (In Cary, the Court invalidated a New York law forbidding the sale of contraceptives to individuals under the age of 16.) The Court criticized the majority in 1986 for failing to find a history and tradition that warranted recognition of an individual right to engage in sexual conduct with one of the same sex. The majority opinion pointed out that other nations around the world recognize an individual right to engage in homosexual acts (slip opinion, p. 16). The majority stated that “[t]his emerging recognition should have been apparent when Bowers was decided.” (Slip opinion, p. 11.) The Court held that the “right to liberty under the Due Process Clause gives them [homosexuals] the full right to engage in their conduct without the intervention of the government.” (Slip opinion, p. 18.) The Court declined to decide the case under the Equal Protection Clause, although it implied that it could have. But the Court declined to rule on that basis because it said that such a ruling would have averted the more important question of whether a right to engage in homosexual conduct exists under the Constitution. (Slip opinion, pp. 14-15.)
II. Justice O’Connor’s Concurring Opinion
Justice O’Connor would not have overturned Bowers, a case in which she joined with the majority. She would have invalidat-ed the Texas law for violating the Equal Pro-tection Clause of the Fourteenth Amendment. Citing Eisenstadt v. Baird, she said that just as a state law that “discriminated between married and unmarried persons” in the distri-bution of contraceptives was invalidated by the Court, so should the Texas law that dis-criminated between heterosexuals and homo-sexuals be invalidated by the Court. (Slip opinion, p. 2.) She said that the Texas statute violated the Fourteenth Amendment because it banned “homosexual sodomy, but not heterosexual sodomy.” (Slip opinion, p. 4.)
As pointed out above, the majority did not join with Justice O’Connor because her holding was too narrow to accomplish their purposes.
Justice Scalia (joined by Chief Justice Rehnquist and Thomas) found no violation of the Equal Protection Clause in the Texas law because it applied equally to men and to women. Justice Scalia pointed out that the O’Connor rationale was nothing more than circular reasoning. To illustrate he wrote:
"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.’ 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." (Slip opinion, p. 17.)
III. Justice Scalia’s Dissenting Opinion
Justice Scalia takes the majority to task for three things: (1) Creating a new basis for identifying unenumerated rights—i.e., as a part a the “liberty” within the Due Process Clause of the Fourteenth Amendment; (2) Failing to explain how the newly identified “liberty” squared with “fundamental rights” rationale of Bowers, the result of which the majority severely criticized; and (3) Departing from the Court’s long-standing principles of stare decisis.
A. The new liberty identified by the Majority is based upon an archaic and distorted version of Substantive Due Process and is a departure from the Court’s established principles for recognizing unenumerated rights.
The rationale invoked by the majority as a basis for the newly recognized liberty to engage in adult, consensual, homosexual conduct is a new species of “substantive due process” under the Fourteenth Amendment. This rationale was articulated in the early twentieth century in Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Meyer v. Nebraska, 262 U.S. 390 (1923) as a basis for identifying and recognizing rights that were not specifically articulated in the Constitution.
However, as the Supreme Court began to recognize new rights in the mid-twentieth century, it began to distance itself from the “substantive due process” rationale, and in its place the Court began to formulate its “fundamental rights” rationale, which became the basis for recognizing the right of married couples to use contraceptives (Griswold v. Connecticut, 381 U.S. 479 (1965) ); the right of unmarried couples to use contraceptives (Eisenstadt v. Baird, 405 U.S. 438 (1972)); and the right to privacy, including the limited right of a woman to control her own body (Roe v. Wade, 410 U.S. 113 (1973). In none of these three landmark cases (Griswold, Eisenstadt and Roe) did the Court base its ruling on the “substantive due process” rights under the Fourteenth Amendment. Rather, as Justice Scalia points out in his dissent, the Court “expressly disclaimed any reliance on the doctrine of ‘substantive due process’” in Griswold and in Eisenstadt (Slip Opinion, p. 10). Rather, those opinions were grounded on a “right to privacy” found “in the penumbras of constitutional provisions other than the Due Process Clause.” Id. In Roe v. Wade the Court adopted the “fundamental rights” rationale to which the Court had adhered ever since that case in deciding whether or not to recognize unenumerated rights. In other words, the majority in Lawrence misstates the rationale of the cases that it cites as precedent for its holding.
Based upon this background, when the Supreme Court dealt with the Bowers v. Hardwick case in 1986, the Court properly applied the “fundamental rights” principles, and appropriately declined to find and recognize a right to engage in homosexual conduct.
The majority opinion, misrepresents the rationale that its predecessor Court employed in all three of these cases (Griswold, Eisenstadt and Roe). The majority in Lawrence reaches the result it wants by citing these three cases as supportive; but the majority ignores and/or distorts the rationales that the Court used in each of those cases. What the Court has done in Lawrence is to resurrect a new brand of “substantive due process,” even though for over thirty years the Supreme Court has abandoned that rationale as a legitimate basis for recognizing unenumerated rights.
Nevertheless, whether the Court’s reasoning was correct or not, since a majority has now spoken, we now have a new basis for recognizing unenumerated rights. The new basis is that the Supreme Court can identify and recognize certain “liberties” under the Due Process Clause of the Fourteenth Amendment. So, while the logic employed by the majority in citing Griswold, Eisenstadt and Roe as a basis for its action in Lawrence is flawed, the result is nevertheless now the law.
B. The Majority did not explain why it opted not to apply “fundamental rights” principles in determining whether or not to recognize a new liberty.
Perhaps Justice Scalia’s most important observation about the majority’s opinion in Lawrence is a discussion of what kind of right or liberty it had just created. He points out that the majority did not call it a “fundamental right” (which would entail certain tests and principles to both establish it and to apply it to other situations). But instead, the Court identified it as a “liberty” protected under the Due Process Clause. In so-doing, the majority established a new basis for identifying unspecified rights protected under the Constitution. Albeit the new “liberty” is a part of the right to privacy first articulated in Griswold, but the Court had previously opted to refer to such rights as “fundamental rights.” At first glance it is unclear why the majority in Lawrence avoided elevating this “liberty” to the status of a “fundamental right.”
Some people will have difficulty following Justice Scalia’s analysis of “fundamental rights,” the “right to privacy,” and the “liberty” protected under the Due Process Clause. Justice Scalia understands the technicalities of these principles as well as anyone in the world. But for many people, the rationale doesn’t matter—only the bottom line: Homosexual conduct is now protected under the Constitution. But for those who wish to understand the Court’s reasoning, to analyze whether the holding is based on sound reasoning, further analysis is necessary, and a review of Justice Scalia’s dissent is essential to this understanding.
Had the majority identified the right to engage in homosexual sodomy as a “fundamental right,” then a state law that impinges upon that “fundamental right” must be invalidated unless the state has a “compelling interest” to override the right. But since no “fundamental right” has been identified, a mere “rational” basis for a state law would be sufficient to sustain that law in restricting the newly identified “liberty.” The meaning of this is that state marriage laws will not be invalidated by this newly identified “liberty.”
But there is a pervasive contradiction in the majority’s reasoning that is perplexing. On the one hand, it should be easier for a state to articulate a “rational” basis than a “compelling reason” to support a law that would impinge on a protected liberty. However, the Court’s reasoning in Lawrence undermines and invalidates the very type of moral bases that have been upheld by the Court as sufficient “rational” bases for state laws (such as marriage laws) for the last two centuries. Thus, Justice Scalia rightly expresses grave concern that the Lawrence ruling is likely to jeopardize other moral laws that have been upheld ever since the ratification of the Constitution—laws regarding marriage, bigamy, prostitution, adultery, bestiality, and obscenity. And the next battle in the gay rights agenda is already underway—the legalization of same-sex marriages. Within a week after the Lawrence ruling, The Washington Post (July 5, 2003) called for the States to recognize same-sex unions (whether called “marriages” or not).
Not one word was spoken in the majority’s opinion in Lawrence about the serious and debilitating health and societal side effects of homosexual relations. Not one mention of AIDS; not one mention of the increased physical and mental problems that plague homosexuals; not one mention of the lack of long-term stable relationships and of the high levels of promiscuity with multiple sex partners that attend same-sex unions; not one mention of how the traditional marriage with a father and a mother is the best environment in which to raise children in order for them to become healthy, happy, educated, responsible and productive citizens.
C. Departure from stare decisis.
Stare decisis is the Latin phrase that stands for the principle that prior rulings should be upheld except for very weighty reasons in order to promote certainty and consistency in the law, and in order to put an end to litigation. Justice Scalia points out that the majority in Lawrence departed from the traditional tests that it has applied before reversing prior Court rulings. He points out how the majority is applying a different standard to overturn Bowers than it applied in refusing to overturn Roe v. Wade. Justice Scalia said the majority was “manipulative in invoking the doctrine.” (Slip opinion, p. 2.) Later, Justice Scalia stated: “The Court has chosen today to revise the standards of stare decisis,” transforming it into a “result-oriented expedient.” (Slip opinion, p. 7.) It is undoubtedly because of this departure that the majority devoted a major portion of its opinion to denounce the Court’s ruling in Bowers only 17 years earlier. The majority makes the obligatory argument to support its decision, but it does not withstand honest intellectual review. And frankly, this probably does not matter to the majority, who acknowledged that it was because they perceived an “emerging recognition” of homosexual rights that they overturned Bowers. (Slip opinion, p. 11.)
Justice Scalia points out that the majority has departed from its role of neutral protector of the Constitution, and “has largely signed on to the so-called homosexual agenda . . . directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” (Slip opinion, p. 18.) Justice Scalia accused the majority of inventing a “brand-new ‘constitutional right’ by a Court that is impatient of democratic change."” (Slip opinion, pp. 19-20.)
Despite the majority’s attempts to rationalize how it disregarded the principle of stare decisis, the result is that the Court’s actions now relegate stare decisis to a mere principle to invoke to reach a desired result—the invocation of stare decisis in Lawrence turns the principle into hollow rhetoric, to be discarded when it gets in the way of the majority’s personal agendas. Specifically, the Court is saying that because it now disagrees with Bowers, it will not apply stare decisis, but because it still agrees with Roe it will apply stare decisis to it.
It remains to be seen whether Lawrence will become a ruling that undermines the moral fabric of our state and federal laws. This can be avoided if subsequent courts limit their application of Lawrence to its facts—i.e., the state cannot burst unannounced into the home of two consenting adults engaged in homosexual acts and then criminalize the adults for such actions. The majority holds, at the very least, that a right to privacy liberty precludes this. If the courts do indeed follow this limiting application of Lawrence, then the States will nevertheless remain free to enforce their laws respecting marriage, prohibiting same-sex marriages, prohibiting prostitution and obscenity. But it is certain that the militant gays will test the limits of Lawrence as they seek to secure more recognition and greater protection for their same-sex conduct.
1. Justice Scalia stated his concern that “[t]his effectively decrees the end of all morals legislation.” (Slip opinion, p. 15.) However, the majority intimated that its ruling would not undermine state marriage laws; it wrote that this case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” (Slip opinion, p. 18.)
2. The Supreme Court resorted to a totally new rationale to obtain the result it wanted to reach in Lawrence; and this rationale is that a “liberty” exists under the Due Process Clause to engage in private, homosexual conduct. Apparently this “liberty” is distinguishable from a “fundamental right,” although the majority never explained what the distinction is.
3. While this may be confusing, it is clearly not an oversight. The majority, concurring and dissenting opinions are all circulated among all the Justices well in advance of the issuance of their rulings to make sure that there are no surprises and to give all sides the opportunity to consider all arguments and to revise their written opinions accordingly. Thus, one must conclude that the majority knew what it was doing and did not inadvertently fail to address an issue. The question for analysts, therefore, is why did the Court choose to label the newly protected personal right as a “liberty” protected under the Due Process Clause rather than one of the “fundamental rights” protected under the Constitution?
4. The logic behind this new, controlling principle is suspect, since homosexual conduct has nothing to do with the decision of whether to bear or beget a child.
5. I presume this new basis is in addition to the “fundamental rights” rationale, rather than in replacement of it.
6. Justice Scalia characterizes the majority’s reasoning as “manipulative” (Slip Opinion, at 2) and that their motives were “result-oriented” (Slip Opinion, at 7).
7. Some have characterized the Scalia dissent as “angry,” excessive and whiny. I submit that such glib criticisms come from uninformed and biased people. To the contrary, the dissent is most enlightening. The Lawrence holding is quite peculiar, and it cannot be comprehended without studying the Scalia dissent.
8. The traditional, three requirements to overturn a prior ruling are: “(1) its foundations have been ‘eroded’ by subsequent decisions . . . ; (2) it has been subject to ‘substantial and continuing’ criticism, . . . ; and (3) it has not induced ‘individual or societal reliance’ . . .” (Justice Scalia’s slip opinion, p. 3.)
© 2006 C. Paul Smith
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Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com