(June 26, 2003) Something incredible happened today: the U.S. Supreme Court ruled that it is unconstitutional for the government to regulate private sexual conduct, and that the government may not act in ways that would demean persons in homosexual relationships. (Lawrence v. Texas).

In a 6-3 decision, accompanied by a broad and sweeping written opinion, the Court struck down a Texas law which criminalized consensual sexual conduct between two persons of the same sex. In doing so, the Court overturned a 1986 decision in the case of Bowers v. Hardwick, which had upheld a Georgia “sodomy” law.

It is rare for the U.S. Supreme Court to so emphatically discard a prior legal decision, especially one so recently decided. It is also rare for the Court to reach beyond the narrow confines of a specific case, but the opinion in thie case does so, going far beyond the requirements of the case presented.

What the Case Does Not Say: The ruling does not require the government to allow or respect gay marriages.

This case arose after police invaded a private home (allegedly based on a crime tip), surprising two men who were engaged in sexual activity, and then arrested both men for violation of a Texas law prohibiting “deviate sexual intercourse” (defined to include sex acts between two persons of the same sex, but not between two persons of opposite sex).

When the court first decided to hear this appeal, it identified two questions:

• first, whether the law violates the “equal protection” clause of the 14th Amendment to the U.S. Constitution when it outlawed specific conduct between two persons of the same gender, but not between two persons of opposite gender (discrimination);
• second, whether the law violates the “due process” clause of the 14th Amendment by regulating “adult consensual sexual activity in the home.”

Liberty and privacy (but mostly liberty?): The opinion notes that the Texas law regulates “the most private human conduct, sexual behavior, and in the most private of places, the home.” The Court rejects the prior decision in Bowers v. Hardwick as focusing on “homosexual acts” instead of the broader issue of consensual, intimate acts in private homes, and also rejects the Bowers Court’s claim that “proscriptions against [homosexual] conduct have ancient roots.” The latter point serves (quite poorly, I think) to undermine claims that neither the “Founding Fathers” who wrote the Constitution nor the legislators who ratified the 14th Amendment would have expected their Constitution to prevent such laws.

Discrimination / Equal Protection? Normally, a court need only find a single basis for its opinion; thus, having decided that the Texas law violated the due process clause (“liberty”), it was not necessary to also rule on the “discrimination” issue, which was not addressed directly in the majority opinion (but is cited as the sole basis for Justice O’Connor’s concurrence). It will be hard for most people to believe this if they read Justice Kennedy’s majority opinion, which is quite emphatic in repeatedly noting that the petitioners had engaged in “homosexual” acts and a gay relationship and lifestyle, and that “The petitioners 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.”

How Far (physically)? The court’s opinion repeatedly refers to “the home,” and would not appear to prohibit laws that prohibit public conduct, even if those laws discriminate against gays (prohibiting certain conduct by same-sex couples but not by opposite-sex couples). The decision should certainly extend to other private places, including hotel rooms, but not to semi-private or public places.  However, it seems unlikely that states would enact laws to exploit this “loophole,” since there are few acts that lawmakers would allow to occur in public between opposite-sex couples but not same-sex couples.

How Far (scope)? The majority opinion’s language decrying the Texas law for “demeaning” gay couples, and insisting that they be entitled to “respect,” would seem to infer that certain other laws or regulations that treat people differently based solely on their private, intimate activities or based on the fact that they are in a “homosexual relationship.” As Justice Scalia notes in his dissent, that language completely undermines any claim to legitimacy for discharge of gay men and lesbians from the military, based solely on what they do in the privacy of their homes.

This Decision is Right, but Not Secure. In fairness to the three dissenting justices, there is little to support the majority’s claim that the decision is founded firmly on established principles of jurisprudence. In some ways, the sweeping references to “liberty” are a cop-out.  This is simply one of those cases in which the Court recognizes that it must do The Right Thing, and reject attempts by a tiny minority of small-minded bigots to punish others for being different, or worse, for being happy — or gay.

And the 6-3 ruling is not very secure, given Justice O’Connor’s limited concurrence and the likelihood that the next appointment to the Supreme Court will be made by President George W. Bush.

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