The Consequences of Lawrence v. Texas (Justice Scalia Is Right says Homosexual Lawyer)

The Consequences of Lawrence v. Texas Justice Scalia Is Right that Same Sex Marriage Bans Are At Risk, But Wrong That A Host of Other Laws Are Vulnerable By JOANNA GROSSMAN lawjlg@hofstra.edu ---- Tuesday, Jul. 08, 2003

Recently, and famously, in Lawrence v. Texas, the Supreme Court invalidated Texas' anti-homosexual-sodomy law. It did so by invoking the constitutional right to privacy. But it also indicated that constitutional equal protection doctrines would have provided another reason to invalidate the statute, which targeted only same-sex sodomy.

The decision extended long-overdue recognition of the rights of gays and lesbians. In doing so, it also overturned a notoriously hateful precedent, Bowers v. Hardwick.

Justice Antonin Scalia wrote an angry dissent to Lawrence. Among other points, Scalia warned that the Court's decision means that state criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity cannot survive.

Is he right? The answer is surprisingly unclear from the Lawrence opinion. Accordingly, the status of these other laws will remain fodder for lower court challenges.

Prior to Lawrence, the Supreme Court had developed a well-known and sometimes controversial line of cases recognizing a right of privacy surrounding decisionmaking about marriage, family, and procreation.

As it evolved, this constitutional right of privacy became tethered to the Due Process Clause of the Fourteenth Amendment - and specifically, to the liberty interest it protects. The thrust of the right is that individuals have the right to make certain decisions, and engage in certain forms of conduct, without interference from the state.

Claims that the constitutional right of privacy has been infringed are traditionally analyzed in two steps. First, the Court asks whether the decision or conduct is a fundamental right.

In deciding this issue, the Court applies some rather nebulous standards. Is the right "implicit in the concept of ordered liberty"? Is it "deeply rooted in this Nation's history and tradition"? It is helpful if an asserted right is similar to rights that have already been declared fundamental in the past.

Pursuant to Court precedents, fundamental rights include the rights to marry, to use contraceptives, to make decisions about the rearing and education of children, to live with individuals of one's choice, and the right to terminate a pregnancy. (The right, famously established by Roe v. Wade, was reaffirmed, albeit under a slightly different analytic framework, in 1992 in Planned Parenthood v. Casey.)

If the right at issue is indeed fundamental, then the Court applies strict scrutiny to the law. Most laws fail this analysis. For the law to survive, the state must prove both that it had a compelling interest at stake, and that the law at issue was narrowly tailored to achieve that interest.

On the other hand, if the right at issue is not fundamental, the Court simply applies rational basis review. If the state had a legitimate interest in regulating the conduct, and the law at issue was a rational means of achieving that interest, then the law stands.

In 1986, against this backdrop, the Court decided Bowers v. Hardwick. In that case, a man was arrested, in his bedroom, for engaging in sexual conduct with another male. He was convicted under a Georgia statute that prohibited sodomy, regardless of the gender of the persons engaging in it.

When he challenged his conviction, the Court first confronted the issue of whether the right he asserted was fundamental. The majority formulated the question this way: "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy. . . ." But of course, it might have also been phrased in other ways - as a fundamental right to consensual sexual conduct between adults in a private context.

The Court refused to recognize sodomy as a fundamental right, based on its review of history. Indeed, it deemed the claim that there was such a right "at best, facetious."

Finding no fundamental right, the Court applied only the rational basis standard of review. In doing so, the Court found the law valid as an expression of the state's "sentiments about the morality of homosexuality." In other words, the state's belief that homosexual conduct was immoral was a sufficiently "rational" basis to support the law.

That brings us to the recent Lawrence opinion - in which Bowers was explicitly overruled.

In this case, two men were arrested after the police - dispatched on a report of a weapons disturbance - encountered them in their apartment engaged in a sexual act. They were convicted under a Texas law criminalizing "deviate sexual intercourse with another individual of the same sex."

By a 6-3 majority, the Court, in a majority opinion authored by Justice Anthony Kennedy, invalidated the law - and all anti-sodomy laws, even those that apply to both same-sex and opposite-sex couples. That much is clear. Much else is not.

Oddly, the Court never expressly labeled the conduct at issue a "fundamental" right. It did, however, say that the Texas law sought to "control a personal relationship that . . . is within the liberty of persons to choose without being punished."

And it also said that adults have the right to "choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." Homosexuals, the Court wrote, also share in this "liberty protected by the Constitution."

All of these statements sound like those used to describe a fundamental right. Thus, one would expect that strict scrutiny would follow. Did it?

All the Court said with respect to the standard of review was that the "Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (Emphasis added.)

That sounds like rational basis review, not strict scrutiny. So what's going on?

It apparently was plain to the Court that the statute would not even survive the lax rational basis standard - let alone strict scrutiny. So the same Court that had avoided the easier equal protection argument to invoke the right of privacy instead, also eschewed the easier application of the more lethal strict scrutiny test, to reach for the rational basis test instead.

(Romer v. Evans, a Supreme Court case striking down an anti-gay civil rights statute stands for the proposition that legislation cannot survive even rational basis review if "it is born of animosity toward the class of persons affected." This would virtually have guaranteed invalidation of the Texas law on equal protection grounds).

In invalidating the Texas law even under the rational basis law, the Court sent this message: "This law is so deeply flawed and reprehensible, we can strike it down with one hand tied behind our backs."

Of course, one could also take an almost diametrically opposite view of the opinion - seeing it as intentionally narrow, not intentionally far-reaching. On this view, the six majority Justices - perhaps because they disagreed among themselves on these points - intentionally withheld two important rulings.

First, they declined explicitly to hold that private sexual conduct, including sodomy, is a fundamental right. Second, they declined explicitly to hold that strict scrutiny applies when this right is infringed. Therefore, on this view, these holdings are not law.

But no one who has read the majority opinion as a whole can plausibly endorse this latter interpretation of the Court's opinion. It is too strong an embrace of rights, and a proclamation of freedom for gays and lesbians, for that interpretation to be sustainable. All five majority justices signed onto the opinion's unequivocal language (Justice O'Connor concurred in the judgment, but would have invalidated the law under the equal protection principles).

The key to developing the privacy line of cases in the past has been analogy--how much does a newly asserted right look like those the Court has already recognized? That will undoubtedly hold true with Lawrence as courts are asked to reconsider the validity of other laws regulating similar conduct.

When laws that regulate analogous conduct are examined, morality justifications alone plainly will not be enough to save them. In Lawrence, the Court explicitly adopted the following language from Justice Stevens's Bowers dissent: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

But which kinds of conduct, exactly, will be deemed similar to the conduct at issue in Lawrence? At one point, Lawrence refers 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." Later, however, the opinion also makes plain that not all statutes regulating sex will be vulnerable to constitutional attack.

Indeed, the Court tries to hem in its holding by listing the factors not implicated by the Texas anti-sodomy law: minors, coercion, public conduct, prostitution, and public or governmental recognition of the relationship. It also points out what is involved here: two adults, mutual consent, and sexual acts common to their lifestyle.

This analysis spells doom for the few remaining anti-fornication laws on the books. Like homosexual sodomy, fornication is a private, consensual, sexual act, and the laws forbidding it have no conceivable justification other than morality. But what about the other laws Justice Scalia lists in his dissent as now being vulnerable?

Justice Scalia predicts that, besides anti-fornication laws, laws regulating or prohibiting same-sex marriage, prostitution, adultery, bigamy, incest, and bestiality will also come under fire, and be invalidated, after Lawrence. Will they really?

Laws against prostitution and bestiality are the easiest cases. After Lawrence, anti-prostitution laws can still be justified based on concerns about coercion, exploitation of women, and the public health. And bestiality laws plainly can be upheld on a "cruelty to animals" justification, or, in the age of SARS, maybe a public health one. A legislature entirely unconcerned about the morality of either practice could still seek to prohibit both.

I addressed adult incest laws in a prior column. To some extent, incest prohibitions can be justified based on a state's desire to avoid genetically disadvantaged offspring. To some extent, they can be justified based on the desire to avoid corruption of parent-child relationships; without such laws, such relationships could be tainted by the possibility that an older relative may be grooming a minor relative for intimate partnership later in life.

But some applications of incest laws may reach too far - beyond either of these concerns - and be struck down. A law that prohibited cousins from marrying might be one example. So might a law prohibiting an adopted sibling from marrying a close-in-age "natural" sibling who shared no genes. Or one that prohibited the marriage of blood relatives who did not know each other as minors.

Adultery and bigamy laws are somewhat harder. They can probably be justified by a state's desire to preserve a monogamous tradition, protect spouses from harm visited by the other spouse (a longstanding feature of state criminal, marriage, and divorce law), maintain an orderly system for assigning the benefits and burdens associated with marriage, and so on.

On the other hand, though, it seems hard to deny that morality concerns are the main motivating force behind such laws: Adultery and bigamy are prohibited not so much for their consequences, but because society sees them as morally wrong.

But unlike private sexual conduct, like sodomy, neither adultery nor bigamy has ever been protected by our society--to the contrary both have always been illegal, and a basis for marital dissolution. And unlike the history of sodomy laws detailed in Lawrence, there is a long history of these laws being enforced.

So to the extent that the due process inquiry is based in tradition, the rights to commit adultery or bigamy look very unlike the right at issue in Lawrence (and thus would not generate heightened scrutiny at all).

The Court in Lawrence seemed to limit its holding so as not to decide this question, noting that it was not considering the issue of public or governmental recognition of a relationship. But, importantly, its reasoning may well extend to invalidate such laws anyway.

In Lawrence, the Court dispensed with tradition as the sole determinant of a privacy right, emphasizing the role of autonomy and personhood in assessing what rights are too important to be toyed with. Same-sex marriage has not traditionally been seen as a right, but neither has same-sex sodomy - or sodomy in general - and Lawrence found a right to these latter practices.

Certainly, individuals desiring to marry a person of the same sex have at least as strong an interest in having that freedom, as individuals choosing to engage in sexual conduct with a person of the same sex have in the freedom they are exercising. If not, the Court will, at the same time, have given its protection to all forms of non-marital sexual relationships--including wild one-night stands--while deterring the kind of permanent, legally sanctioned relationships on which society has been built.

Indeed, one would think that, putting tradition aside, the right to marry the person of your choice should be one of the most fundamental of all. If it isn't, the Court will be hard put to say why.

Once a right to same-sex marriage is recognized, any law banning it - or regulating it differently from the way opposite-sex marriage is regulated - will predictably be struck down. Such laws have no valid justification; they are based either on pure animus against homosexual persons, or on so-called "morality" considerations that Lawrence and Romer have made clear cannot alone support a liberty- or equality-infringing law.

In sum, Lawrence is itself a monumental development in Constitutional law, but the future may be even more interesting. After Lawrence, challenges to laws banning same-sex marriage are the logical next step.

--------------------------------------------------------------------------------

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Family Law and Sex Discrimination, among other subjects. Grossman's other articles on these and similar subjects may be found in the archive of her pieces on this site.

this is what leftist dominated family lawyes are saying. Senator Santorum was absolutly right.

Look at the last paragraph:

" Certainly, individuals desiring to marry a person of the same sex have at least as strong an interest in having that freedom, as individuals choosing to engage in sexual conduct with a person of the same sex have in the freedom they are exercising. If not, the Court will, at the same time, have given its protection to all forms of non-marital sexual relationships--including wild one-night stands--while deterring the kind of permanent, legally sanctioned relationships on which society has been built.

Indeed, one would think that, putting tradition aside, the right to marry the person of your choice should be one of the most fundamental of all. If it isn't, the Court will be hard put to say why.

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This is all well and good, however, how long does it take to move an amendment through the states and legislatures, and how quickly will the SCOTUS adjudicate the same sex marriage case that will inevitably wend its way long before any amendment is passed.

I think you will see same sex marriage legalized in the US before 2005.

And it will be a disasterous blow to society.

I would like to initiate some discussion on this with respect to public schools. WITH the anti-sodomy laws, schools CAN forbid gay/lesbian/homo clubs from meeting on school grounds as they would be promoting illegal acts.

WITHOUT these laws, gay/lesbian/homo groups are free to promote and ENCOURAGE this DANGEROUS behavior among impressionable and often confused adolescents. The average live span of a male homosexual is something like 50 years, and statistics show that lesbians are many times more susceptable to being alcoholics.

"It's for the children!"

not a viable argument because you could ban all sex due to STD's. You just require all reproduction at the village fertility center.

Her arguments about incest, polygamy, and beastialiy are all equally dubious. She uses a natural order argument for prohibiting polygamy. That is a weak at best argument. We can easily ban homosexual marriage based on the same natural order of society argument.

BTW Does not all morality lead to a natural order of society? Morality against leftist goals is bad. Morality for leftist ideals is good? more refugee law professor drivel.

If the right to privacy applies to all sorts of activities how about sexual relations that produce out-of-marriage births? If all this other stuff is not the states business what about the current paternity laws?

How about something that, on average, harms society a whole lot less than deviant sexual relationships (AIDS, etc.) or out-of-marriage births (tremendous welfare and psychiatric costs, etc.) - like, for instance, firearms ownership? Does this right, which is explicitly protected in Amendment II, also get a boost from the privacy line of USSC cases? Logic would seem to dictate it, but I somehow don't see the Lefties in or out of the USSC agreeing with that.

The irony of this SCOTUS decision seems to be lost on the SCOTUS itself.

The SCOTUS, in 1973 Miller v. California, essentially defined obscenity/pronography as:

1) A thing must be prurient in nature 2) A thing must be completely devoid of scientific, political, educational, or social value

3) A thing must violate the local community standards
_________________________
So....a PICTURE of homosexual sex can violate local community standards, but the ACTUAL homosexual act itself is not subject to local community standards ?

How nuts is this ?

So....a PICTURE of homosexual sex can violate local community standards, but the ACTUAL homosexual act itself is not subject to local community standards?

Why not? The same could be said about pornography performed by normal married people.

Once a right to same-sex marriage is recognized, any law banning it - or regulating it differently from the way opposite-sex marriage is regulated - will predictably be struck down.

If laws against same-sex marriages are struck down as unconstitutional, then what reason does a state have for even recognizing the concept of marriage at all?

I would venture to guess that "gay marriage" will cease to mean anything because states will eventually "get out of the business" of recognizing marriage as anything other than a business contract between two consenting adults anyway.

Not quite true. This was an equal protection case.
Homosexual sex is no longer subject to local community standards.( local/state laws) Heterosexual sex still is. That is part of Justice Scalia's point....soon it no longer will be.

um...why would married heterosexual sex violate community standards ?

that requires marriage to cease being an institution of society. Then the social left can begin to construct institutions of the left. The left has always said, the only way to take over the world is to deconstruct the family and remove mothers and fathers from the children. ...and hitler said, "who cares about your opinion, I have your children."

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