“What a massive disruption of the current social order… This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws [laws against fornication, bigamy, masturbation, adultery, prostitution, adult incest, bestiality, and obscenity] can survive rational-basis review.” — Justice Antonin Scalia, dissenting from the majority ruling in Lawrence v. Texas, June 26, 2003
It could have been “just” a gay rights decision. It could have been nothing more than a decision ordering that homosexuals be treated equally with heterosexuals when it comes to state regulation of sexual practices. It could have been a ruling that the state of Texas could only outlaw sodomy between homosexuals if it applied those restrictions to heterosexuals as well.
That in itself would have been historic, a major victory for gay and lesbian rights after 17 years of legal campaigning, a cause for special celebration in gay pride events across the country.
But that’s not what the Supreme Court chose to say on June 26 when it issued its anxiously awaited decision in Lawrence v. Texas. Instead, the Court chose to go much further than affirming the right of gays and lesbians to have sex on an equal basis with heterosexuals. Instead, the Court decided to challenge the very idea that government has any right whatsoever to tell consenting adults of all sexual orientations and all sexual inclinations how they may or may not have sex in the privacy of their homes.
“Were we to hold the [Texas prohibition of sodomy] invalid under the Equal Protection Clause,” Justice Anthony Kennedy writes in his remarkable majority opinion, “some might question whether a prohibition would be valid if drawn differently, say, to prohibit [sodomy] both between same-sex and different-sex participants.”
No, says Kennedy for the Court. The state has no business attempting “to define the meaning of the [sexual] relationship or set its boundaries.” None at all, for consenting adults, unless there is “injury to a person or abuse of an institution the law protects.” Why? Because, Kennedy says with more sexual appreciation than anyone could possibly expect from the inner sanctums of established government, it is essential that adults be able to “choose to enter upon this relationship [sex] in the confines of their homes and their own private lives and still retain their dignity as free persons.” The venerable Sexual Freedom League could not have said it better.
Kennedy goes on to issue a veritable treatise on the importance of sex in human relations, and the history of sexual attitudes and legal constraints in this country. He cites the brilliant and radical work of John D’Emilio and Estelle Freedman (Intimate Matters: A History of Sexuality in America). He notes that 19th-century sodomy prosecutions typically involved sex between adults and children, “predatory acts against those who could not or did not consent,” rather than oral or anal sex between adults. He emphasizes that, prior to the 1970s, homosexuals were never singled out for criminal prosecution, that the very “concept of the homosexual as a distinct category of person did not emerge until the late 19th century.” He notes the dramatic changes in sexual attitudes that have occurred since the 1960s and cites these in defense of his ruling. “Our laws and traditions in the past half century are of most relevance here,” says Kennedy — the “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
Laws that “purport to do no more than prohibit a sexual act” actually “have more far-reaching consequences,” Kennedy observes, “touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.” Sex is so fundamental a part of human relationships, says Kennedy, that, in the name of basic liberty, the state must leave individuals free to pursue it however they please. To do otherwise subjects individuals to a stigma that is “not trivial,” he says, including the requirement that they register as sex offenders in at least four states.
Sex, Kennedy philosophizes in the passage most widely cited in media reports, is much more significant than the performance of a specific act. “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.” The issue of sexual freedom, he says, is nothing less than one’s “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Then Kennedy really gets down to brass tacks. “The issue is whether the majority may use the power of the State to enforce [its ‘religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family’] on the whole society through operation of criminal law.” It may not, Kennedy declares unequivocally. “Our obligation is to define the liberty of all, not to mandate our own moral code.”
John Geddes Lawrence and Tyron Garner, the publicity-shunning appellants in Lawrence v. Texas, have the right to engage in sex however they please, without the intrusion of the state, says Kennedy, not only because homosexuals should be equal in standing to heterosexuals, but more fundamentally because “individual decisions by [both married and unmarried] persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the Due Process Clause of the Fourteenth Amendment.”
“Keep Your Laws Off My Body” reads the decades-old slogan that gay rights activists and sexual crusaders of all stripes have emblazoned on hundreds of thousands of protest signs, t-shirts, and bumper stickers. Anthony Kennedy could appropriately have been wearing just such a t-shirt under his judicial robes when he delivered his majority opinion, speaking for five of the nine Supreme Court Justices. (Sandra Day O’Connor, the sixth vote in the Court’s 6-3 decision, restricted her concurrence to the issue of equal rights for homosexuals.)
Just as Brown v. Board of Education profoundly changed the legal standing of African-Americans in 1954, just as Roe v. Wade radically altered the circumstances of women in 1973, so does Lawrence v. Texas completely redefine the ongoing struggle for sexual freedom, autonomy, and self-determination in this country. The ruling is unambiguous, unrelenting, unqualified, and crystal clear. No group in society — no matter how fervent, no matter how large — has the right to impose its views about how people should and should not have sex on everyone else.
Scalia is right. All laws prohibiting fornication, masturbation, adultery, playing with sex toys, attending private swingers parties and s/m clubs, prostitution, bigamy, adult incest, bestiality, and obscenity must now be called into question and arguably overturned. Everyone who has long believed something along those lines need no longer feel the slightest bit hesitant to say so. It’s not just a bunch of fringe perverts who believe in the importance of sexual freedom and self-determination, it’s the majority of a very conservative United States Supreme Court. “Two adults who, with full and mutual consent from each other [engage in sex] 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.”
Social conservatives from Antonin Scalia to Jerry Falwell are stunned and angered by the Court’s decision, as well they ought to be. Just when they thought they had the Supreme Court in their hip pocket, look what happens. “This is probably as bad a day as the court has had on social issues since Roe v. Wade,” Falwell told The New York Times. “A grand-slam homer for the other side,” bemoaned Jay Sekulow of Pat Robertson’s American Center for Law and Justice. Senator Rick Santorum (R-PA), who created a major conundrum for George Bush with his remarks about the case prior to the June 26 decision, was quick to say I-told-you-so. Tom Minnery of Focus on the Family, accused the Court of “pillaging its way through the moral norms of our country.”
But while social conservatives go apoplectic and scurry around drafting constitutional amendments to prevent Lawrence v. Texas from turning the tables in the ongoing debate about gay marriage, libertarian conservatives like William Safire are unapologetically delighted with the ruling. “The Supreme Court has just slammed America’s bedroom door,” Safire wrote in his nationally syndicated column. “Libertarian conservatives like me who place a high value on personal freedom consider Lawrence v. Texas a victory in the war to defend everyone’s privacy.”
Indeed, Lawrence v. Texas places the social conservatives of the Religious Right in direct opposition to the libertarians who are often their political allies. Conservative politicians from George Bush down to your local Congressperson and State Representative are going to have to do some fancy footwork to hold their newly-divergent constituencies together. Meanwhile, everyone in America gets to be reminded that sexual diversity is as patriotically American as flying the stars and stripes. Ben Franklin is, without doubt, grinning from his grave.
July 25, 2003
Copyright © 2003 David Steinberg
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