It began as a love triangle. In 1998, Tyron Garner and John Lawrence were arrested for having sex in Lawrence’s apartment. The police came to the apartment, which they entered without a warrant, because they had received an anonymous call claiming there was a man inside “going crazy in the apartment and he was armed with a gun.” The caller turned out to be Robert Eubanks, with whom Garner was casually involved and who later admitted he was jealous of Lawrence. (Eubanks was ultimately found guilty of making a false charge.) Garner and Lawrence were convicted of sodomy, which was still illegal in Texas, and given small fines. Garner and Lawrence were both quiet, private people, with no desire to become heroes. But they appealed the case, and it eventually made it to the Supreme Court. In 2003 the high court found Texas’s sodomy law to be unconstitutional.
The vote split 6-3, with the moderately-conservative justice Anthony Kennedy writing the majority opinion. In it he set aside several precedents that upheld state anti-sodomy laws, justifying his decision with reference to “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” One of these over-ruled precedents was an earlier Supreme Court judgement, Bowers v Hardwick (1986), which upheld the right of states not just to criminalise gay sex but, more broadly, to regulate adult sexual activity for moral reasons. In his Lawrence decision Kennedy cites a dissenting opinion from Bowers, one written by his colleague John Paul Stevens, in which Stevens says: “individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of ‘liberty’ protected by due process.” Kennedy concludes: “That analysis should have controlled Bowers, and it controls here.”
As monumental and comprehensive as it is, there is one notable omission from Kennedy’s Lawrence opinion: it makes no explicit mention of a right to have sex. One might easily think that the language of the decision makes this unnecessary, since it is analytically true that any “liberty protected by due process” is also a constitutional right. The Declaration of Independence declares that “life, liberty and the pursuit of happiness” are the “unalienable rights” of all people, while the Fifth Ammendment states that “no person shall . . . be deprived of life, liberty, or property, without due process of law.” The due process clause, cited by Kennedy in Lawrence, protects the very things the Declaration lists as basic rights, and if something counts as a liberty protected under the Fifth Ammendment, it should also count as a liberty under the Declaration, and therefore a right. The terms “liberty” and “right” were used more or less interchangeably during the eighteenth century, as a strict constructionist like Antonin Scalia could no doubt confirm, and they have continued to be in legal contexts since. The term “right” is sometimes considered the broader one, since it includes claim rights as well as liberty rights. But if not all rights are liberties, it is very hard to deny that all constitutionally-protected liberties are also rights. And indeed Scalia, who wrote a dissenting opinion, had no doubt that Kennedy’s decision created a right to have sex. He cited an earlier, lower-court decision, Owens v. State (Maryland, 1992), which had, based on Bowers, explicitly declared that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage.” Scalia’s point is that if Bowers denied this right, then Kennedy, in over-ruling Bowers, affirmed it.
Yet it would be too charitable, I think, to conclude that Kennedy and the justices who concurred with his opinion did not bother to use the term “right” because they thought it was superfluous. Many interpreters have held on the contrary that the omission was deliberate, and that it was done in order to prevent Lawrence from invalidating a wide swath of laws covering sexual behaviour, such as anti-prostitution laws. In State of Arizona v. Freitag (2006), Christopher Freitag, who had been convicted of soliciting a prostitute, appealed his conviction by arguing that Lawrence established a “fundamental constitutional right to engage in adult consensual sexual conduct.” But the Arizona court rejected this, bluntly declaring that “Freitag reads Lawrence too broadly . . . The Supreme Court stopped short of declaring that this liberty interest was a fundamental right.” Let us go back to Scalia’s dissent, however, because in it the justice puts paid to any such attempts to restrict Lawrence’s implications:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by to day’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives IN matters pertaining to sex” (emphasis added [i.e. by Scalia])).
Scalia thinks, in other words, that Freitag reads Lawrence perfectly correctly. Liberty and right cannot be separated. For Scalia, the Lawrence decision, by calling sex a liberty protected by due process, recognises a constitutional right to have sex, plain and simple. And so most laws governing sexual conduct are doomed. If sex is a right, all such laws must survive something called “strict scrutiny”, which few will.
In fact, once we read into the decision a recognition of the right to have sex, the implications of Lawrence may be broader than even Scalia envisioned. It may have rendered invalid significant portions of the law dealing with sexual assault. For instance, it may hereafter be more difficult to insist that statutory rape should be, as it is now in most U.S. jurisdictions, a strict liability crime. Under current law, a defendant cannot be acquitted by claiming that he made a reasonable mistake about his partner’s age. But strict liability crimes are restricted to highly regulated activities, which sex cannot be if it is a fundamental right. Even laws concerning adult sexual assault starts to look like outliers if they attempt to restrict a defendant’s ability to claim he made an honest mistake about whether consent had been given. It is a complicated matter to explain how this works. I will do so in a future post.
The presidential campaign has brought to prominence a candidate, Rick Santorum, who openly wants to take us back to the world of Bowers. A few years ago, before his run for president, Santorum was asked by John Stewart: “Can the government really mandate virtue?” He replied: “I think it HAS to.” But we live in Lawrence’s world now. As Kennedy noted, the Lawrence decision brings U.S. law into line with other Western democracies, and with public opinion. There is no going back. I think this is a great achievement. However, I also think that we now must struggle with the full implications of the recognition, belated as it is, that the freedom to have sex with whomever we choose is one of our fundamental rights. It is going to be a long and difficult process.
Image: Nikolay Gay, Achilles Lamenting the Death of Patroclus (1855)