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The Right of Privacy As Interpreted by The Supreme Court: Implications of Lawrence Et Al. v. Texas, 2003

July 2, 2003


The Supreme Court's decision ruling unconstitutional the Texas statute that forbids two persons of the same sex to engage in "certain intimate sexual conduct" (sodomy) has implications far beyond legalizing homosexual acts.  While it is clear that most conservatives, liberals, and all libertarians do not want the police in the bedroom where two consenting adults are involved, the Court's activism will likely affect issues well beyond the matter decided here.  While Justice Kennedy in the majority opinion stated, "The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain sexual conduct", the answer the Court delivered was much more than that to most constitutional scholars.

One of the answers that the Court delivered was their selective use of the principle of "stare decisis", let the decision stand.  They did not follow precedent in the case of Bowers v. Hardwick, 478 U.S. 186 (1986), saying that "private conduct in the exercise of liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution" required them to overrule the decision made seventeen years earlier.  In fact Justice Kennedy went to great lengths to say "Bowers was not correct when it was decided, and it is not correct today.  It ought not to remain binding precedent.  Bowers v. Hardwick should be and now is overruled."  Fifteen of the eighteen page majority decision was used to justify why Bowers was overturned.  It is clear to me that Justice Kennedy's belief on what "ought to be" definitely guided his thinking in this case.  That clearly is not consistent with the view that he stated on page 10 of the majority decision where he stated, "Our obligation is to define the liberty of all, not to mandate our own moral code."

The decision here in "Lawrence" is an example of the majority on the Court telling the majority of the citizens of Texas what is morally legal and what is not.

The Court said that the "majority of the State may not use the power of the State to enforce its views on the whole society through the operation of the criminal law."  On page 18 of the majority decision, Kennedy stated, "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."  While most would agree with that logic, that does open up the Pandora box to ask this question, "To what extent may the state rule the private conduct of consenting adults illegal?"  Prostitution between two consenting adults is the first issue that comes to mind.  Certainly there will be a test case in the near future asking the Supreme Court to follow the standard laid down by Justice Kennedy in Bowers.

What are some other private acts committed by consenting adults currently illegal in most states that are now in jeopardy from this Court decision?  Illegal drugs used in the privacy of the home where no contact is made with other individuals is an open question.  Gambling in the privacy of a home between consenting adults is another legitimate question.  The list could go on and on!!!

What about laws that currently only recognize marriage between a man and a woman?  Or can private companies refuse to grant pension rights or health benefits to the partner in a same sex relationship?  It appears for now that both of those issues are beyond the scope of the "Bowers" decision.  Justice Kennedy in the majority decision on page 18 stated, "It (the Bowers case) does not involve whether a government must give formal recognition to any relationship that homosexual persons seek to enter ... the State cannot demean their existence or control their destiny by making their private sexual conduct a crime."  So in Kennedy's mind, what made this Texas and other state statutes illegal was that it made their private conduct a crime, yet the state is not required (AT LEAST NOT YET) to recognize their homosexual relationship as being legal, at least not legal contractually in receiving the benefits from government and the private sector that a man and woman can receive in a marriage sanctified by the state.

But wait until that clever lawyer from that ACLU (I know that is an oxymoron!) brings a test case that argues that the partners in a homosexual marriage are being discriminated against because of their sexual orientation and are therefore being deprived of their rights from another part of the Fourteenth Amendment, the "Equal Protection Clause".  How could the Court refuse to follow this logic?  Would they argue that you cannot enforce laws that criminally prosecute people because of their orientation and then turn around and say that you can legally discriminate against those same people in civil issues because there is not a criminal sanction?  That's what Kennedy seems to imply when he said, "It does not involve whether a government must give any formal recognition to any relationship that homosexual persons seek to enter."

I do not believe Justice Kennedy was being honest in that statement.  He is an intelligent man and he knows that it will be a logical extension of the rights of homosexuals in today's society.  He did not want to take on that hornet's nest at this time, and it was also not a question that was being examined in this case.

Justice Kennedy was disingenuous in many parts of the decision that he wrote for the majority in this case.  A final example of this was in the second to last paragraph on page 18 of the majority decision where he stated, "Had those who drew up and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they MIGHT HAVE BEEN MORE SPECIFIC."  Uh, hello!!!  If they had known of the great expansion and vast reaching interpretation beyond anyone's imagination by liberal activists on the Court over the last 80 years, when the Court began diluting federalism and making the Tenth Amendment impotent by incorporating most of the restrictions against the federal government imposed by the bill of rights against the states, I would argue that the due process clause in both the Fifth and Fourteenth Amendment would have been written much differently or not written at all.

This brings up another alarming issue that has not been brought up by the liberal-biased media.  Here is another example of the federal government, and not even an elected part of the federal government, telling both the states and the people what they can and cannot do.  Federalism, as envisioned by the Founding Fathers, is dead and perhaps it has been for some time.

The expansion of the privacy right, from the Ninth Amendment, where the word privacy is not mentioned, means much more than the author of the Bill of Rights ever envisioned.  The Court here in Bowers chose to follow the precedent it had established in both Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 113, (1973).  Here is what I meant earlier about selective use of the principle of stare decisis, "let the decision stand".  When Kennedy wanted to follow precedent to meet his own view of what is morally right, he selectively used the Constitution to justify his views.  I would not argue that precedent should always be followed.  I would argue, though, that the precedent Kennedy used is also not legitimate then, or even now.  Especially in Roe v. Wade, to stretch the meaning of the Ninth Amendment to mean that "although a woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause", is a stretch of the Ninth Amendment and the Fourteenth Amendment beyond both the imagination and the intentions of those who wrote and ratified those amendments.

The private acts of consenting adults, regardless of whether they are sexual or not, should not be regulated by the government.  Yet it is up to the voters of the state, the state legislature, the governor, and the state court system to handle such issues.  One obviously would counter this argument by pointing to past issues of racial discrimination by Jim Crow segregation laws and say if it were not for cases like Brown v. Topeka Board of Education, (1954), where by the way, precedent was not followede.g., Plessy v. Ferguson (1896)advancement in civil rights for minorities would have been severely retarded.  I would argue that we are talking about two entirely different issues.

The ruling against segregation is clearly defined and is without dispute in the Fourteenth Amendment's guidelines of the Equal Protection Clause.  It also is a public act, not a private act between consenting adults.  While the Court may have been correct in ruling that private conduct of a sexual nature between homosexuals should not be a crime, the Supreme Court of the United States should not have had the jurisdiction in this case.  Laws affecting sexual conduct between adults have always been the prerogative of the states to enact, for the Tenth Amendment to the Constitution clearly states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  Kennedy and the majority of the Court would have been more correct to have remanded the case back to the State Supreme Court of Texas with instructions of the Fourteenth Amendment's meaning in the Due Process Clause as it applies to the States and the rights of individuals.  Whether the State Supreme Court of Texas would have then reversed its earlier decision is unclear.  But if they did not, it is not the U.S. Supreme Court that should have corrected this wrong, it is the people of Texas and those in other states where the responsibility lies to treat all of its citizens with dignity and respect.

 

Copyright Copyright 2020 by Kim B. Deffenbaugh & America's Voices, Inc.  All rights reserved.
Kim B. Deffenbaugh is an educator, poet and high school guidance counselor in Indiana who recently began writing political commentary and poetry.  His work is published at www.poetsforthewar.org and on America's Voices.  You can e-mail him at kdeffenba@americasvoices.org.

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