Thomas Dodson
October 28, 2003
On June 26 of this year a 6-3 majority decision of the United States Supreme
Court in the case of Lawrence v. Texas declared all state laws proscribing non-procreative
sex to be unconstitutional infringements of the right of citizens to "engage in private
conduct without government intervention" (Lawrence 41). Although the Texas law only
prohibited sexual contact between those of the same sex, the court's ruling effectively
overturned a 1986 decision that upheld a Georgia statute criminalizing "any sexual act
involving the sex organs of one person and the mouth of the other" (Bowers2). Although
Georgia's sodomy law made no distinction regarding the genders of persons engaged in
criminal sexual acts, Justice White's majority opinion in Bowers v. Hardwick restricted
itself to commenting upon the legal status of homosexual sodomy. The choice of the
court in Hardwick to interpret the Georgia statute as simply a ban on same-sex sodomy
and the decision of the Texas legislature to target only gay sex raises the issue of whether
there is a constitutional basis for the exclusion of gay people from the liberties other
Americans enjoy. Examining these cases should also lead us to question the purposes
and principles of laws regulating private sexual conduct.
This slim volume, which reproduces the complete text of the courts' opinions in
Lawrence and Hardwick , will be of great interest to legal scholars, historians, political
scientists, and activists. Articles from the popular and alternative press included in the
volume will be of special concern to those wishing to place the courts' landmark
decisions within a social and political context. The collection would have benefited,
1
2
Pagination refers to Syllabus
Footnote 1
Dodson 2
however, from the inclusion of significant precedents (Griswold and Eisenstadt ), more
extensive legal commentary, and a broader sample of the ongoing public and scholarly
deliberation on the issues raised by the decisions.
In 1982, Michael Hardwick was arrested in his bedroom by an Atlanta police
officer for engaging in oral sex with his partner. In the majority decision in Bowers v.
Hardwick, the court rejects Hardwick's claim that the Georgia statute violates his
fundamental right to privacy and self-determination in his intimate associations. Instead,
the majority decision frames the case as a plea for special rights, concluding that "the
Constitution does not confer a fundamental right upon homosexuals to engage in
sodomy" (Bowers par. 4).
The decision maintains that the right to homosexual sodomy is not fundamental; it
is neither integral to liberty and justice, nor is it well-established in America's "history
and tradition" (Bowers par. 22). Thus, it does not meet the standard for "rights qualifying
for heightened judicial protection." (Bowers par. 22). The court cites the many state
statutes outlawing sodomy as proof that a right to gay sex would, in fact, run counter to
the nation's history and established conventions. The court also maintains that the
Georgia statute possesses a rational basis in that it reflects the majority opinion of
Georgia's citizens that homosexuality is immoral. In his concurring opinion, Chief
Justice Berger makes the questionable claim that "decisions of individuals relating to
homosexual conduct have been subject to state intervention throughout the history of
Western civilization" and that "Judeao-Christian moral and ethical standards" provide a
compelling foundation for the Georgia statute (Bowers par. 30).
Dodson 3
Justice Stevens, joining the dissenting opinion, points out that, although the
Georgia law makes no distinction regarding the identities of those engaged in sodomy,
the majority decision clearly does. The strategy of the majority decision, to limit the
constitutional question to "the right to homosexual sodomy," serves to obfuscate the
unconstitutionality of the statute as written. An examination of prior cases makes it clear
that Georgia cannot enforce its sodomy law in relation to married or unmarried
heterosexual couples, who already enjoy constitutional protection for their private, sexual
behavior. Thus, although the state of Georgia is compelled to justify its selective
enforcement of the law, there is no "neutral and legitimate interest" by which the state
can do so (Bowers par. 68).
The law in question in the case of Lawrence v. Texas differs from the Georgia
statute in that its ban on certain sexual acts only applies if the agents are members of the
same sex. Delivering the opinion of the majority, Justice Kennedy's argument follows
that of Justice Blackmun's dissenting opinion in Hardwick. Both maintain that the
relevant constitutional issue in these cases is not the freedom to engage in homosexual
sodomy, but rather the freedom from government interference in private conduct secured
by the Due Process Clause of the Fourteenth Amendment. In order to adjudicate the
case, the majority opinion re-examines, and finally overturns, the decision of the White
court in Bowers v. Hardwick.
In his dissenting opinion, however, Justice Scalia re-asserts the claim of the
White's majority opinion in Hardwick, that the issue is not a broad "freedom from" but a
narrow "freedom to." He also maintains that a majority conviction that some sexual acts
are immoral "constitutes a rational basis for regulation" (5). Scalia also disputes the
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majority interpretation of the Due Process Clause, pointing out that states are allowed to
deny the liberties of their citizens, so long as the rights in question are not "fundamental"
ones and the citizens are not deprived of due process of law. Following Justice White,
Scalia maintains that a right to sodomy is not fundamental, and therefore does not merit
the "heightened scrutiny" of the high court (8).
The cases and commentary contained in this collection direct us to the most
fundamental questions regarding laws regulating sexual conduct: What purpose should
these laws serve, and what principles should guide us in enacting, affirming, or
overturning them? While Justices Berger and Scalia maintain that sodomy laws in the
United States have always sought to specifically deny a right to private and consensual
gay sex, Justice Kennedy argues convincingly that "there is no long-standing history of
laws directed at homosexual conduct as a distinct matter" (7). Kennedy argues that "early
American sodomy laws were not directed at homosexuals as such but instead sought to
prohibit non-procreative sexual activity more generally" (8). Patterns of enforcement
further suggest that these laws were not intended to regulate "consenting adults acting in
private," but rather were designed to provide an avenue of legal redress for victims of
"sexual assault[s] that did not constitute rape as defined by criminal law" (8).
Laws regulating private sexual practice could, conceivably, serve the purpose of
defending the rights of victims of sexual assault without unduly infringing the rights of
others to privacy and equal protection. Clearly, this would involve overturning statutes
of a more recent vintage that specifically target the consensual sexual activity of samesex adults. As National Review columnist Robert P. George notes, this approach would
require a "criterion or set of criteria [. . .] by which courts [could] distinguish
Dodson 5
constitutionally protected from unprotected sexual conduct" (par. 6). Although George
shudders at the thought of adopting consent as a guiding principle for sexual regulation
(claiming that it would throw open the orifices of the body politic to all sorts of
unwelcome perversions), it may be most defensible choice.
George argues that previously marriage represented the dividing line between
protected and unprotected. Clearly it is not this simple as this; previous cases have
asserted the privacy of the heterosexual bedroom, whether the couple was married or not.
Thus, George fails to acknowledge that the de facto principle of constitutionally protected
sex has been heterosexuality, not marriage. Further, such a principle is not adequate to
the task of protecting victims of sexual assault when they are married to their assailant.
An obvious alternative principle, only protecting sexual conduct sanctioned by traditional
notions of sexual morality, seems particularly narrow and unworkable. The principle of
tradition would not allow for shifts in the social values of the American people to be
reflected in their courts. In short, it would deny our human capacity for ethical inquiry,
and subject our intimate sexual lives to the tyranny of our ancestors.
The adoption of a principle of consent to guide the interpretation and adjudication
of laws designed to protect individuals from sexual assault is not a simple proposition,
either. To ensure a balance between sexual freedom and the rights of victims of sexual
violence, and to defend against the inevitable charges of loony libertarianism will require
considerable consideration of what "consent" should mean. As legal scholar Marc
Spindelman argues, we should not extend our support to legal "victories" in which the
unconstitutionality of sodomy laws allows perpetrators of sexual violence to go
unpunished. We must also develop a notion of consent that acknowledges the dynamics
Dodson 6
of abusive relationships, regardless of the gender of the partners. Hopefully the present
collection will contribute to a discussion of just these issues.
Word count: 1454
Works Cited
Dodson 7
Bowers v. Hardwick, 478 US 186 (1986).
George, Robert P. "Rick Santorum Is Right: Where Will the Court Go After Marriage?"
National Review Online. 27 May 2003. 27 October 2003.
<http://www.nationalreview.com/comment/comment-george052703.asp>
Lawrence et al. v. Texas, 539 US (2003).
Spindelman, Marc. "Sodomy Politics in Lawrence v. Texas." JURIST. 12 June 1993. Dir.
Prof. Bernard J. Hibbitts. 27 October 2003
<http://jurist.law.pitt.edu/forum/forumnew115.php>.