What Independent Judges Do? (Continued)

Lawrence v. Texas ( U.S. Supreme Court, 2003)

 In a 6-3 decision, the Supreme Court ruled that “sodomy” laws criminalizing same-sex sexual conduct are unconstitutional. The Court based its ruling on the due process interest in liberty under the 14th Amendment. This decision overruled the Court’s 1986 ruling in Bowers v. Hardwick, which at the time permitted laws criminalizing same-sex conduct. Justice Anthony Kennedy wrote the majority opinion for five members of the Court, with Justice Sandra Day O’Connor writing a separate opinion concurring in the result.

The Court traced understanding of the due process liberty interest to its 1965 decision in Griswold v. Connecticut. Griswold invalidated laws prohibiting the sale or use of contraception. In that case, the Court described the liberty interest as a right to privacy and emphasized the protected sphere of the bedroom. After Griswold, other decisions, including Roe v. Wade, elaborated the meaning of the right of privacy.

In Lawrence, the Court concluded that there is an “emerging awareness” that liberty protects private adult sexual conduct. The Court emphasized that “liberty [under the Constitution] gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” It concluded that gay, lesbian, bisexual and transgender people have the freedom to make their own choices about intimate sexual matters, just as straight people do. Laws infringing on such freedom are unconstitutional.

The Court cautioned that the law, in general, should not seek to define the meaning of personal relationships, or set boundaries as to such relationships, absent injury to a person or abuse of an institution the law protects. This is extremely hopeful language, as it broadly defines personal relationships to be beyond the reach of the law. In simple terms, what two consenting adults do in their own bedrooms, and in their personal relationships, is their own business, as long as they are not harming anyone. One concern might be the Court’s reference to “abuse of an institution” — opponents of gay, lesbian, bisexual and transgender rights might latch onto this in arguing against equal marriage rights. (O’Connor’s concurring opinion provides additional ammunition; her opinion suggested there could be constitutionally legitimate reasons to bar marriage for same-sex couples; the Court did not address the question of equal marriage rights in its decision).

The Court confronted the argument that “tradition” is a justification for discrimination against gay, lesbian, bisexual and transgender Americans. It questioned whether there really is a legal tradition of discrimination based on sexual orientation, noting that Americans laws targeting same-sex couples were only developed quite recently. It also noted that other countries have rejected discrimination based on sexual orientation (this part of the Court’s decision has provoked outrage from some who claim the Court should not refer to foreign law in its decisions; the Court did not find that it was bound to follow any foreign legal authority). The Court rejected “moral” argument in support of discrimination, stating emphatically that government may not mandate a moral code for society. Importantly, the Court indicated support for the idea of a living Constitution, adaptable to changing times, explaining, “[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

In his dissent, discussed below, Justice Antonin Scalia complained that the Court invented a sort of heightened rational basis review in analyzing the due process liberty interest at stake. In fact, the Court did not explicitly state what level of constitutional scrutiny it applied to the discriminatory Texas statute; that is likely because it was concerned about endorsing a standard that could control the question of equal marriage rights. A decision expressly requiring strict scrutiny to apply to legislative action affecting personal autonomy would be strong precedent for a future case involving marriage. It is not clear that a majority of the Court would have endorsed such a standard, or would be ready to endorse equal marriage rights.

At least one court has concluded that Lawrence did in fact recognize the right to personal autonomy as a fundamental right deserving heightened “close” scrutiny (either intermediate or strict scrutiny). There is certainly support for this reading in the Court’s decision, which employed “sweeping” language and references to a “fundamental” right in describing the liberty interest at stake. See Plaintiff’s Brief in Opposition to Defendants’ Motion to Dismiss at 21-22; Cook v. Rumsfeld, No. 04-12546 (D.Mass.) (dated March 28, 2005).

Although it could have more narrowly struck down the Texas law on equal protection grounds, as it criminalized same-sex, but not opposite-sex, sodomy, the Court found it was important to make clear that private sexual conduct is fully protected by the Constitution. The Court noted that it was important to remove all stigma attached to sexual conduct because stigmatizing same-sex conduct can provide a basis for discrimination in other areas of life.

It should be noted that Scalia wrote a lengthy, contemptuous dissent from the decision in Lawrence. Scalia implied that the Court’s decision is an “activist” one, arguing that the Court improperly invaded the legislature’s domain. The centerpiece of his dissent is the assumption that the only fundamental constitutional rights worthy of protection are those that are “deeply rooted in this Nation’s history and tradition.” Since, he concludes, “homosexual sodomy” is not “deeply rooted” in tradition, laws that criminalize same-sex relations do not warrant strict scrutiny review under the due process clause. Scalia concluded that the Court did not apply strict scrutiny analysis, but complained that it fashioned a sort of heightened rational basis review that he worries will have disastrous consequences.

One might well object that Scalia’s assumptions dictate his conclusion. By framing the right in question as “the right to homosexual sodomy” rather than the right to consenting adult sexual relations (or the broader right to privacy discussed by the Court), Scalia finds it easier to marginalize the issue at stake. By analogy, it would presumably be impermissible for a state to outlaw some subsets of heterosexual intercourse. Without being overly lurid, certain specific types of heterosexual behavior may not be deeply rooted in the nation’s history or tradition, yet laws prohibiting such behavior would be struck down for the same reason cited in Lawrence; because they infringe on the liberty to make personal choices about intimate sexual matters.

Scalia’s dissent is filled with invective and insult. He asserts gay, lesbian, bisexual and transgender people deserve no more protection against discrimination than nudists do. He warns (in language reminiscent of that used by politicians opposed to GLBT rights) that the Court’s decision opens the floodgates to legalized fornication, bigamy, adultery, incest, bestiality and obscenity (ignoring the Court’s caveat that it would not treat harmful sexual conduct in the same way as conduct between consenting adults). He charges that the Court has “taken sides in the culture war” and “largely signed on to the so-called homosexual agenda.”

Although Scalia is careful to claim that he has “nothing against homosexuals or any other group” (hey, some of his best friends are probably gay), his writing strongly suggests otherwise. He condones as legitimate the concerns of Americans who do not want their children interacting with “homosexuals,” and reports that these unidentified concerned Americans simply view discrimination against gay, lesbian, bisexual and transgender Americans as a way to “protect themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Scalia would never write a dissent dismissing race or sex discrimination in the way he dismisses discrimination based on sexual orientation. He recognizes that discrimination based on race was properly rejected by the Court as, among other things, an attempt to “maintain White Supremacy.” Opponents of gay, lesbian, bisexual and transgender rights might not use quite the same language, but they have an essentially analogous goal: maintaining “straight supremacy,” for example, by restricting marriage rights that relegate GLBT Americans to second-class status.

As others have pointed out, Scalia’s focus on history and tradition as the basis for constitutional analysis is also difficult to square with, for example, the Court’s recognition of women’s rights. Responding to Scalia’s dissent, Jon Davidson, senior counsel at Lambda Legal, commented that “[the nation’s founding] was a time when … women were their husband’s property. … Things have changed, thank goodness.”

An Important Milestone

Justice Antonin Scalia’s dissent (which carries no legal weight) aside, Lawrence v. Texas is a paradigmatic example of the U.S. Supreme Court performing its duty to protect minority rights. As the Court observed, just because a governing majority may view conduct as immoral, it may not enact discriminatory laws that violate the Constitution. When this happens, the Court will enforce the Constitution to strike down such laws, as it did here. This is precisely what we mean when we speak of an independent judiciary. It is especially heartening to note that Justice Anthony Kennedy wrote the Court’s opinion, as he may be an important swing vote on future cases before the Court.