Oyez Oyez Oyez

William F. Buckley
|
Posted: Jun 27, 2003 12:00 AM

LAWRENCE et al. v. TEXAS certiorari to the court of appeals of Texas, fourteenth district No.02-102. Argued March 26, 2002 — Decided June 26, 2003. Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviant sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S. 186, controlling on that point. Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3-18.

OPINION. Let's face it, we don't want that law in Texas and the other 12 states that have those laws; they're just, well, antiquated. After all, they aren't even enforced — it's just the isolated case, like these two guys, where the police weren't really interested in their having at it, they went in looking for weapons. But there is the problem of our decision in l986, which said the anti-gay law was constitutionally okay. We're going to have to eat a little crow on that one, but probably we can refocus on Due Process, and lean on privacy.

Privacy!

That's the way to go. This noble Court discovered privacy as a constitutional right when we okayed abortions in Roe, back in 1973. Is there anybody in the world (except, of course, Scalia and Thomas) who is going to argue that sex is anything other than private? We have to rule every now and then on obscenity, but sex in a theater isn't exactly private. Sex in a theater we can protect as First Amendment stuff, free expression.

Scalia will give us a hard time on the privacy argument, but what's he going to do about it? Other than to snipe away in his dissent at the Roe decision? It's true, we've got laws against gay marriage, against incest, against pederasty, bigamy and prostitution, and those can certainly be done in private and consensually.

The other side will of course be making the point that it's up to the legislature of Texas to decide whether to forbid gay sex, and we're here to say that Due Process, as required under the Fourteenth Amendment is absent when cops barge into a bedroom. Sandra (no hard feelings, Sandra. Obviously you don't want to contradict your reasoning back in the 1986 ruling) has come up with the Equal Protection Clause. I think the straight privacy argument, privacy-is-a-fundamental-right, gets us along better than her Equal Protection argument, though it too is pretty persuasive.

Let's face it, we've got to do something consistent with public opinion. All 13 states had anti-sodomy laws when the U.S. was founded. But they also had slaves. Time marches on. Nobody here is in favor of the anti-gay laws, not Scalia, not Thomas, but of course they use the argument that it's up to the state legislatures to get into harmony with evolving public opinion, and yes, it's true that 12 states have voided their own anti-gay laws since 1986. But, speaking of modern times, we are a Court that moves with modern times, and we are an activist Court (though we don't win them all!), and there is a hardheaded crowd out there who just say no, that bringing in two gays for having sex is just too much, and I think we all agree.

And yes, we know — nobody will say we're dumb! — that this ruling will lead us to problems. Gays in the military is one of them, and, of course, gay marriage, gay marriage, gay marriage — I wish more gays would move to Canada. Just kidding. But we can put that off for a bit, wait for a groundswell. When that one comes in, I think we should have Sandra write the opinion. She's proved on this one that she can square circles. Or is that unconstitutional — squaring circles? Get me Scalia on the phone.