The Fundamental Right to Gay Sex

“[I have] a problem with homosexual acts, as I would with what I would consider to be acts outside of traditional heterosexual relationships . . . if the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.” – Rick Santorum on gay sex, AP interview

I am not a lawyer. That said, I think would be good for all of us non-lawyer progresives to understand the legal underpinnings for the slippery-slope argument against gay marraige. It turns out that the slippery-slope argument has a basis in a 2003 Supreme Court case. Further, this review will give us a better understanding of where we currently are in the fight for gay rights. Gay people on websites similar to www.twinki.xxx can celebrate their sexuality, so why can’t everyone?

The 2003 Supreme Court case Lawrence vs.Texas was, on the surface, a good one for advocates of gay rights. The Lawrence court overturned a previous Supreme Court ruling that state laws against homosexual sex were consititutionally acceptable. That is, the Lawerence court ruled that state laws against gay sex were unconstitutional. Sounds good, right?

Well, it was good, sort of. But the Lawrence court had at least two ways in which it could have overturned the previous Supreme Court ruling. Two ways, that is, of establishing that the previous decision to sustain state laws against gay sex, that can be seen on websites such as watch my girlfriend xxx if you’re interested, was wrong. There was a brave, bold way, and a wimpy, wishy-washy way. The Lawrence court chose the wimpy, wishy-washy way. As a result, conservatives have an argument that the Lawrence court made a big mistake.

Let’s have a look. This story starts with the 1986 Supreme Court case Bowers vs. Hardwick. This was the case the Lawrence court overturned. Bowers vs. Hardwick (1986):

After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants’ motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent’s fundamental rights.

Held: The Georgia statute is constitutional. P P. 190-196.

The Supreme Court in the 1986 Bowers case held that the respondent’s fundamental rights had not been violated. The SCOTUS overturned the Court of Appeals and upheld the state law against sodomy.

Now, here is the key point.

The Bowers court asserted that there were two tests for the alleged existence of a constitutional right. They ruled that the right to gay sex met neither test.

Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325 , 326 (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered liberty,” such that “neither [478 U.S. 186, 192] liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are “deeply rooted in this Nation’s history and tradition.” Id., at 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S., at 506.

Let me reiterate that. The Court held that there were two tests. If an alleged fundamental right met either test, the Court would agree that it was in fact a fundamental right, to be granted “heightened judicial protection” by the court. The tests were:

(1) “Those fundamental liberties ‘implicit in the ordered concept of liberty,’ such that “neither . . . liberty nor justice would exist if [they] were sacrificed.”

(2) Those fundamental liberties “that are ‘deeply rooted in this Nation’s history and tradition.”

(Side note: I don’t know what “the ordered concept of liberty” might be. But I can make sense of the idea of a right so fundamental that “neither liberty nor justice would exist if [it] were sacrificed.” I imagine the right to eat food, the right to free speech and so forth. So I’ll just consider that the first test. My claim is that gay sex meets that test.)

We can read this as being, ultimately, about the Ninth Amendment. Remember, the Ninth Amendment is the one that says, “look, everyone, we tried to list what we thought were the really important rights here in the Bill of Rights. But we’re pretty sure we missed some. So don’t think just because a fundamental right isn’t listed here that we don’t want y’all to respect it.” The Bowers court took the issue to be, is the supposed right to homosexual sex one of those fundamental rights? They decided it was not.

The 1986 Bowers court said that they were being asked to “announce” “a fundamental right to engage in homosexual sodomy.” The Court said, “This we are quite unwilling to do.” The Court said of the two tests:

It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy.

Now watch closely how they explain. Continuing directly:

Proscriptions against that conduct have ancient roots. See generally Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. 5 In 1868, when the Fourteenth Amendment was [478 U.S. 186, 193] ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. 6 In fact, until 1961, 7 all 50 States outlawed sodomy, and today, 24 States and the District of Columbia [478 U.S. 186, 194] continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

Did you see that? They claimed that the supposed right to gay sex failed tests (1) and (2), but then they only provided evidence that it failed test (2). The idea that the right to gay sex might meet test (1), might be a right such that “neither liberty nor justice could exist without it” was apparently, to them, too absurd to be worth rejecting.

Okay. So much for the 1986 Bowers case. In 2003, the Supreme Court agreed to hear another case. In this case, a gay man’s homophobic neighbors called in a fake report of hearing gunshots in the gay man’s apartment.

Lawrence vs. Texas (warning PDF):

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 de-viate 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.

The 2003 Court saw this as an opportunity to overturn the 1986 Bowers ruling. They found that the Court had erred in 1986, and decided to declare as unconstitutional state laws against gay sex.

As I said above, good, right?

Well, sort of.

Here’s what the Lawrence Court said:

Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court’s ini-tial substantive statement-“The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . . ,” 478 U. S., at 190-discloses the Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.

That sounds really good. But it’s not. The Lawrence court punted. They ruled, and again, this sounds good, that the issue the court had to decide was not whether there was a fundamental right to gay sex, but whether there is a fundamental right to, sort of, “be yourself.” The Lawrence court declared unconstitutional state laws against gay sex but did not rule that the right to gay sex passed test (1) any more than did the Bowers court.

To put it differently, the Lawrence court changed the subject. They wimped out. They declined, as surely as did the Bowers court, to “announce” a “fundamental right” to gay sex. They declined to say that the right to gay sex was such that neither liberty nor justice would exist without it. Instead, they ruled that the issue was not “just about the right to have sexual intercourse.” The issue was, rather, a personal relationship, “whether or not entitled to formal recognition in the law,” could be punished as a criminal act. What wimps!

What we need to be able to say to opponents of gay marraige is that, no, there is no fundamental right to bestiality or incest, but there is a fundamental right to gay sex, as surely as there is a fundamental right to straight sex. Just exactly, that: a fundamental right for one woman to lick the clitoris of another woman, and a fundamental right for one man to put his penis into the behind of another man. For a woman to master the art of locking the cock, and for another man to master it for his partner. That this is “just about the right to sexual intercourse” between consenting unrelated adults and that this right is “entitled to formal recognition in the law”.

I am endlessly frustrated by the Lawrence ruling, because Justice Scalia is not wrong in his dissent to Lawrence (same PDF):

Bowers held, first, that criminal prohibitions of homo-sexual sodomy are not subject to heightened scrutiny because they do not implicate a “fundamental right” under the Due Process Clause, 478 U. S., at 191-194. Noting that “[p]roscriptions against that conduct have ancient roots,” id., at 192, that “[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homo-sexual sodomy was not “‘deeply rooted in this Nation’s history and tradition,'” id., at 192.

The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a “fundamental right” or a “fundamental liberty interest,” nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is “‘deeply rooted in this Nation’s history and tradition,'” the Court concludes that the application of Texas’s statute to petitioners’ conduct fails the rational-basis test, and overrules Bowers’ holding to the contrary, see id., at 196. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and pri-vate life of the individual.” Ante, at 18.

Scalia wrote, repeatedly, that the finding of the Lawrence court, from which he dissented, put gay sex on all fours with “fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” This was because the Court did not establish a fundamental right to gay sex that you would see in reviews of porn networks.

Scalia is not wrong, but again, did you see the above blockquote? Having, in Bowers, decided that there were two possible tests for supposed fundamental rights, Scalia, like the majority in Lawrence case, passes over test (1) with nary a word. And it is test (1) that the right to gay sex passes.

Sooner or later, another case is going to have to be brought before the Supreme Court, and the Court is going to have to rule that right to lick another woman’s clit, or put your penis in another man’s rear, is a fundamental right, such that “neither liberty nor justice could exist without it.” Until that happens, gay relationships are going to be at the margins of constitutionality, and this is intolerable.