More on Lawrence: The Right That Dare Not Speak Its Name

Since my last post, on Lawrence v. Texas, I have spent a lot of time reflecting (read: obsessing) over the issues I raised in it, and whether I read the decision right. I now believe I got it wrong. I was thrilled when Marina Adshade, who writes the wonderful Dollars and Sex blog on sex and economics on BigThink.com, asked me to do a guest post, which gave me the chance to take another shot at it. I want now to expand a bit on some of the points I made there.

I now see there are two very different ways of defending sexual freedom. Lawrence is not at all clear on which it adopted, but interpreters are starting to come to a consensus. Laurence Tribe, the leading liberal expert on sexual-freedom cases (he argued, unsuccessfully, the monumental Griswold decision before the high court) gives an approving summary of what he thinks the Lawrence decision implies:

Intimate sexual relations between consenting adults, at least when conducted in private and outside any commercial context, occupy a fundamental place in our lives, in the ways we express ourselves and – especially but not exclusively in the case of lasting relationships – in the ways we learn from one another and reshape the ideas and values with which we entered into those relationships. The claim that Lawrence must be understood to have accepted is not that a specific configuration of body parts is in itself beyond the state’s regulatory authority, or that the freedom to engage in a particular sequence of actions so as to achieve sexual stimulation or release is a fundamental human right akin to freedom of speech or of religious worship. Rather, the claim Lawrence accepted – the claim that had been pressed on the Court as long ago as Bowers – is that intimate relations may not be micromanaged or overtaken by the state.

The Lawrence decision involved a case of casual sex. (In fact, as a new book on the case, and a review of the book in the New Yorker, both point out, there was probably no sex taking place at all. But we can set that aside.) Tribe thinks that such casual encounters are protected because they are one of the ways in which we try to connect with each other in the on-going hope of forming more meaningful bonds. If this is indeed the intent of Lawrence – to protect sexual freedom because it is an essential part of our on-going project to form meaningful relationships that will give purpose to our lives – it would express a profound and stirring view of liberty, and its constitutional recognition would be no mean achievement.

But this leaves Lawrence silent on the scope of another sort of liberty interest: that of bodily integrity. This was the subject of my Big Think guest post. By remaining silent on the question of bodily integrity, Lawrence is consistent with the general weight of precedent on the right to privacy, which appeals to factors other than an individual’s fundamental right to control her own body – a right which has never in fact been recognised. Perhaps the most surprising example is Roe v Wade, which contains the following passage: “It is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.”

The U.S. is by no means unique here. Europe and Canada were certainly ahead of the U.S. in removing legal restrictions on consensual gay sex. But courts in those countries have also justified sexual liberty because of its connexion to our rights to self-expression and free association, rather than asserting outright that we should have the right (to paraphrase Professor Tribe) to configure our body parts as we see fit. In its monumental decision of 1981, Dudgeon v U.K., the European Court of Human Rights invalidated northern Ireland’s anti-sodomy statute, but also insisted that “some degree of regulation of male homosexual conduct, as indeed of other forms of sexual conduct, by means of the criminal law can be justified as ‘necessary in a democratic society’,”

So contrary to what I suggested last time, neither Lawrence nor any other decision explicitly asserts a right to have whatever sex we want, as part of a more general right to control our own bodies. Whether or not such a right is worth fighting for, is a topic I will take up in the future.

Thanks again to Professor Adshade for the opportunity to guest blog.

Image: Man Courting Young Boy (Ancient Greece, source needed)

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