Privacy without the Closet

The Supreme Court’s decision in Lawrence v. Texas (June 27, 2003) has been heralded as a landmark, and indeed it is. In its 6-3 vote, the Court overturned a Texas law that criminalized “homosexual” sodomy, thereby striking down not only all same-sex sodomy laws (on the books in Kansas, Oklahoma, and Missouri), but also all “gender neutral” laws criminalizing sodomy between heterosexuals and homosexuals alike (in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia). Moreover, Lawrence overruled the Court’s own seventeen-year old precedent, which dismissed the same constitutional argument that the Court now embraces, and it cited a decision by the European Court of Human Rights to make its new case. The Lawrence decision struck down the Texas law on the grounds that it violates privacy and liberty interests protected by the due process clause of the Fourteenth Amendment. In other words, the Court found that fundamental privacy protections apply to homosexual as well as heterosexual intimacy. No longer can consensual adult sexual behavior conducted in private between persons of the same sex be criminalized merely because a legislative majority considers the acts or the actors repugnant. No longer can homosexuals or lesbians be stigmatized as sexual deviants by the law.

That this decision matters a great deal to those affected is no surprise. But why did it receive several days’ worth of full-spread front-page headlines, in-depth articles, and analysis? Why did it trigger innumerable radio and television talk-show debates? Why did it lead to such euphoria on the part of gays, lesbians, and civil libertarians, and such rage on the part of conservatives? I will try to answer these questions by providing a bit of background and by analyzing the doctrinal, cultural, political, and constitutional issues it raises.

Background

In its infamous 1986 decision in Bowers v. Hardwick, the Court refused to apply to “homosexual intimacy” the privacy jurisprudence it had developed in a line of rulings regarding intimate association. From Griswold v. Connecticut (1965), which first applied “substantive due process privacy analysis” to the right of married couples to use contraception; through Eisenstadt v. Baird (1972), which granted the same right to non-married couples on equal protection grounds; through Roe v. Wade (1973), which protected the right to choose an abortion as an intimate decision covered by privacy analysis; and more recently, Planned Parenthood of Southeastern Pa. v. Casey (1992), which upheld the core of Roe, the Court had affirmed the substantive dimension of the liberty and privacy at stake in personal decisions relating to marriage, procreation, contraception, family relationships, and decisions arising in the context of i...