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What's Perverse About Lawrence? 7/22/2003 A shorter version of this commentary was published July 16 in the Los Angeles Daily Journal A seminarian gave a highly academic commentary on the Bible to his uneducated cleaning woman, an avid Bible-reader. Soon after, he asked if it was helpful to her understanding of the Bible. "Well sir," she said, "I find the Bible sheds a lot of light on it."
The cleaning lady knew intuitively the difference between authority and subordinate—the light and that needing enlightenment. In the legal/judicial realm, it's the difference between the Constitution and commentary on the Constitution.
Was the Constitution required reading in your Con law class, or did you read only a commentary? When is the last time you read the authority? It sheds a lot of light on Lawrence v. Texas.
Justice Anthony Kennedy wrote the 5-4 majority opinion in Lawrence, 2003 U.S. LEXIS 5013 (June 26, 2003). Justice Sandra Day O'Connor concurred in the judgment and wrote separately. Both fail to make the case that Lawrence conforms to the Constitution, unless you believe the Founders wrote it on a blackboard and gave the Court an eraser and chalk. Lawrence is a stunning example of commentary conquering Constitution.
The statute at issue in Lawrence prohibits oral and anal sex by persons of the same sex. Let's concede that reasonable people can disagree with the wisdom of such a statute. But under the Constitution, who gets to decide?
Justice Clarence Thomas finds the statute "uncommonly silly," and if he were in the Texas Legislature he would vote to repeal it. Thomas and Chief Justice William Rehnquist joined Justice Antonin Scalia's fiery dissent. Thomas wrote separately to make a supreme point-the duty of a judge under the Constitution:
My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'" … And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," … or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions."
Six justices held the statute unconstitutional, finding it "furthers no legitimate state interest" and resolutely rejected "morality" as a rational basis for the law. Five held it violates liberty and privacy under the 14th Amendment, and also reversed Bowers v. Hardwick without expressly rejecting Bowers' holding that "homosexual sodomy is not a fundamental constitutional right"-a point not lost on the dissenters.
Kennedy proclaimed, "Bowers was wrong when it was decided and it is wrong now." He briefly addresses stare decisis and declares it is not "an inexorable command." You could have fooled pro-lifers.
Kennedy rebuked the Bowers Court for "[h]aving misapprehended the claim of liberty there presented to it." Hardly surprising that Justice O'Connor, one of the Bowers majority, declined to join the Bowers-bashing. That left equal protection grounds despite the fact that the Texas statute is facially neutral. It applies to conduct between two women or two men regardless of their sexual orientation-another point not lost on the dissent.
In Romer v. Evans, Kennedy imputed animus to the people of Colorado as their sole reason for enacting Amendment 2. The majority and O'Connor ascribe bigotry to the Texas Legislature for enacting their statute. Perhaps Coloradoans and Texans will take comfort knowing the Court has maligned them equally.
O'Connor said it's about "dislike and disapproval of homosexuals" and "an invitation to subject homosexual persons to discrimination." She sidestepped deciding whether a neutral statute violates equal protection. It boggles the mind to imagine how it could, but O'Connor said she is "confident" that a law prohibiting both same-sex and opposite-sex sodomy "would not long stand in our democratic society." Too bad democracy wasn't allowed to run its course here. But an eraser is so much faster than democracy when a pesky law doesn't suit your fancy.
Texas criminalized opposite-sex and same-sex sodomy until 1973. As our amicus brief argues, decriminalizing opposite-sex sodomy was likely based on the Court's rulings in Eisenstadt v. Baird in 1972, granting an equal protection right to unmarried heterosexuals to procure contraceptives, and Griswold v. Connecticut, protecting marital intimacy. Retaining a law prohibiting same-sex sodomy doesn't prove animus toward homosexuals.
The Lawrence majority declined deciding the case on narrower equal protection grounds. Obviously, it would take considerable finesse to strike neutral statutes, and Kennedy admitted that wouldn't achieve the goal: "If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons." Another "right" the unenlightened Founders missed-the constitutional right to be stigma-free.
Although the Court, including Justices Holmes, Brandeis, Black, Douglas, Brennan, Warren and Burger, has generally and historically upheld morality as a rational basis for a criminal statute, public health concerns also provide compelling reasons to uphold the statute. Our brief cited a Rolling Stone article about a disturbing and deadly trait of homosexual men known as "bug chasers"-men who yearn to become infected with the HIV virus. "The men who want the virus are called 'bug chasers,' and the men who freely give the virus to them are called 'gift givers.' … HIV-infected semen is treated like liquid gold."
CBS TV and The Bay Area Reporter revealed a closely related high-risk behavior by men who have anal sex with other men, which is a compelling reason to criminalize same-sex sodomy. The prevalence and popularity of "barebacking" (unprotected anal sex) greatly increases the risk of HIV and sexually transmitted disease infections. Consent and privacy does nothing to mitigate the grave risk of such conduct to the persons engaged in the conduct and the public generally. Even if a statute's deterrence is lessened because it's rarely enforced, that doesn't diminish its pedagogical impact.
The Lawrence rationale extends beyond home, hearth and kinky sex between consenting adults. Kennedy continues:
And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
After moving "outside the home" and "beyond spatial bounds," Kennedy claims the ruling doesn't reach "public conduct." Apparently the astral realm encompasses Mars but not Main Street. The "right" has "transcendent dimensions," but excludes "prostitution." Evidently a commercial one-nighter is less transcendent than a freebie. But how so once morality is insufficient justification for a law? Kennedy says it doesn't mean "the government must give formal recognition to any relationship that homosexual persons seek to enter."
"Don't you believe it," warns Justice Scalia. Kennedy declares, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." And retorts Scalia, "This case 'does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with decisions of this Court."
Those who found sodomy enshrined in liberty felt competent to explain why the Founders and others disagreed and left anti-sodomy laws in place:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
Indeed, the dullards should "have been more specific": "Liberty does not include the infamous crime against nature." Washington, Madison, Hamilton, Franklin, Adams, Jefferson et al., blinded by time, lacking insight and comprehension and oppressors all. Who knew?
The majority preferred the European Convention on Human Rights and an act of British Parliament to the Founders. Farewell to America's sovereignty and a hearty welcome back to King George.
The Court should have deferred to the Texas Legislature to retain or repeal its statute. There is no parity between embracing democracy and embracing hate and intolerance. The statute isn't the equivalent of anti-miscegenation and Jim Crow laws against which the text of the Constitution is rightly invoked to prohibit racial discrimination.
Homosexuals have an equal right to change laws through the legislative process. It perverts the Constitution, however, when courts strike valid legislation by conjuring up constitutional rights based on "penumbras, formed by emanations from those guarantees that help give life and substance" to "manifold possibilities."
As Justice Scalia emphasized: "It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."
Either the Constitution prevails or "We the People" lose.
A shorter version of this commentary was published July 16 in The Los Angeles Daily Journal.
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