In reflecting on the
meaning of liberty and democracy, consider the recent decision by
the Supreme Court to strike down the same-sex sodomy law in Texas.
While there has been much commentary, please take a minute to read
the summary prepared by the Court itself (I have edited it slightly,
put some key points in bold and provided some explanatory notes).
Those interested in reading the opinion themselves can click on the
case name below and explore the connections between same sex sodomy
laws and the right to privacy, which is founded on cases involving
access to contraception and deeply implicated in abortion cases.
FACTS: Responding to a reported weapons
disturbance in a private residence, Houston police entered
Lawrence's apartment and saw him and another adult man engaging in a
private, consensual sexual act. Petitioners were arrested and
convicted of deviate sexual intercourse in violation of a Texas
statute forbidding two persons of the same sex to engage in certain
intimate sexual conduct. In affirming, the State Court of Appeals
held that the statute was not unconstitutional. The court considered
Bowers v. Hardwick controlling on that point. (In Bowers, the
Supreme Court upheld a sodomy law used against consensual homosexual
conduct and played down the importance of the privacy right.)
Held: The Texas statute making it a crime for two persons of the
same sex to engage in certain intimate sexual conduct violates the
Due Process Clause.
(a) 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" --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 far-reaching 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.
(b) Having misapprehended the liberty claim
presented to it, the Bowers Court stated that proscriptions
against sodomy have ancient roots. It should be noted, however, that
there is no longstanding history in this country of laws directed at
homosexual conduct as a distinct matter. Early American sodomy
laws were not directed at homosexuals as such but instead sought to
prohibit nonprocreative sexual activity more generally, whether
between men and women or men and men. Moreover, early sodomy laws
seem not to have been enforced against consenting adults acting in
private. Instead, sodomy prosecutions often involved predatory
acts against those who could not or did not consent: relations
between men and minor girls or boys, between adults involving force,
between adults implicating disparity in status, or between men and
animals. The longstanding criminal prohibition of homosexual sodomy
upon which Bowers placed such reliance is as consistent with a
general condemnation of nonprocreative sex as it is with an
established tradition of prosecuting acts because of their
homosexual character. Far from possessing "ancient roots,"
ibid., American laws targeting same-sex couples did not develop
until the last third of the 20th century. Even now, only nine States
have singled out same-sex relations for criminal prosecution. Thus,
the historical grounds relied upon in Bowers are more complex than
the majority opinion and the concurring opinion by Chief Justice
Burger there indicated. They are not without doubt and, at the
very least, are overstated. The Bowers Court was, of course, making
the broader point that for centuries there have been powerful voices
to condemn homosexual conduct as immoral, but this Court's
obligation is to define the liberty of all, not to mandate its own
moral code, Planned Parenthood of Southeastern Pa. v. Casey
(abortion case). The Nation's laws and traditions in the past half
century are most relevant here. They show an emerging
awareness that liberty gives substantial protection to adult persons
in deciding how to conduct their private lives in matters pertaining
to sex.
(c) Bowers' deficiencies became even more
apparent in the years following its announcement. The 25 States with
laws prohibiting the conduct referenced in Bowers are reduced now to
13, of which 4 enforce their laws only against homosexual conduct.
In those States, including Texas, that still proscribe sodomy
(whether for same-sex or heterosexual conduct), there is a pattern
of nonenforcement with respect to consenting adults acting in
private. (see Casey -- which confirmed that the Due Process
Clause protects personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and
education--and Romer v. Evans--which struck down
class-based legislation directed at homosexuals--cast Bowers'
holding into even more doubt. The stigma the Texas criminal statute
imposes, moreover, is not trivial. Although the offense is but a
minor misdemeanor, it remains a criminal offense with all that
imports for the dignity of the persons charged, including notation
of convictions on their records and on job application forms, and
registration as sex offenders under state law. Where a case's
foundations have sustained serious erosion, criticism from other
sources is of greater significance. In the United States, criticism
of Bowers has been substantial and continuing, disapproving of its
reasoning in all respects, not just as to its historical
assumptions. And, to the extent Bowers relied on values shared
with a wider civilization, the case's reasoning and holding have
been rejected by the European Court of Human Rights, and that other
nations have taken action consistent with an affirmation of the
protected right of homosexual adults to engage in intimate,
consensual conduct. There has been no showing that in this
country the governmental interest in circumscribing personal choice
is somehow more legitimate or urgent. Stare decisis (the system of
precedent - "let that decided stay decided") is not an
inexorable command. Bowers'
holding has not induced detrimental reliance of the sort that could
counsel against overturning it once there are compelling reasons to
do so. Bowers causes uncertainty,
for the precedents before and after it contradict its central
holding.
(d) Bowers' rationale does not withstand
careful analysis. In his dissenting opinion in Bowers Justice
Stevens concluded that (1) the fact a State's governing majority
has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice, and
(2) individual decisions concerning the intimacies of physical
relationships, even when not intended to produce offspring, are a
form of "liberty" protected by due process. That
analysis should have controlled Bowers, and it controls here. Bowers
was not correct when it was decided, is not correct today, and is
hereby overruled. This case does not involve minors, persons who
might be injured or coerced, those who might not easily refuse
consent, or public conduct or prostitution. It does involve two
adults who, with full and mutual consent, engaged in sexual
practices common to a homosexual lifestyle. Petitioners' right to
liberty under the Due Process Clause gives them the full right to
engage in private conduct without government intervention. The Texas statute furthers no legitimate
state interest which can justify its intrusion into the individual's
personal and private life.
41 S. W. 3d 349, reversed and remanded.
Kennedy,
J., delivered the opinion of the Court, in which Stevens, Souter,
Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion
concurring in the judgment. Scalia, J., filed a dissenting opinion,
in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed
a dissenting opinion.
Recommended by Webmaster: THE SUPREME COURT TAKES A SAME-SEX SODOMY CASE:
Why Sexual Orientation Discrimination is Also Sex Discrimination (Findlaw.com
column, which contains a helpful short summary of Bowers)
