Lawrence v Texas: a right to personal freedom?(Law)

ON JUNE 26, the United States Supreme Court handed down judgment in John Geddes Lawrence and Tyron Garner v Texas, a landmark constitutional case in which the two petitioners, both of them gay men, had challenged a Texas statutory provision criminalising consensual homosexual acts. The Supreme Court found the provision to be unconstitutional, and overruled the Court's own judgment in a previous ease, Bowers v Hardwick (1986), which had upheld a Georgia statute banning both homosexual and heterosexual sodomy.

Lawrence v Texas gives homosexuals in the USA constitutional immunity from criminal prosecution for private conduct involving consenting adults, but its implications do not end there. This is a case of potentially far-reaching significance that could dramatically limit the ability of the American federal and state legislatures to ban many other kinds of personal conduct. From an Australian perspective, it will have little or no value as a legal precedent, but it does shed light on the direction of public policy in the world's most powerful democracy. Its symbolic significance will have an impact throughout the world.

My own feelings about the case are somewhat ambivalent. I have serious doubts about the intellectual credibility of the American doctrine of substantive due process, on which the outcome of Lawrence v Texas depends. At the same time, the Supreme Court's judgment in this particular case is no more open to intellectual challenge than the Court's constitutional jurisprudence in many other cases dating back to the nineteenth century. Indeed, any other result would have been anomalous, given the evolution of the substantive due process doctrine over the past four decades.

From a policy perspective, I welcome the consolidation of principles that will effectively keep the coercive power of the state out of people's bedrooms and personal lives. At the very least, it is difficult to disagree with the view of Justice Thomas, expressed in his dissenting opinion, that "Punishing someone for expressing his sexual preference through non-commercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources."

THE CASE before the Court arose from a reported weapons disturbance that had led to officers of the Harris County Police Department in Houston, Texas, entering the apartment of John Geddes Lawrence. They found Lawrence engaging in a sexual act with another man, Tyron Garner. Both were arrested, and sub sequently convicted before a Justice of the Peace under the Texas penal code. They were then unsuccessful in a de novo retrial in the Harris County Criminal Court.

The relevant provision of the penal code provided that "A person commits an offense if he engages in deviate sexual intercourse with another person of the same sex." The expression "deviate sexual intercourse" was defined as either "contact between any part of the genitals of one person and the mouth or anus of another person" or "the penetration of the genitals or the anus of another person with an object".

Lawrence and Garner sought to have their convictions overturned by the Court of Appeals for the Texas Fourteenth District. They argued that the statutory provision under which they had been convicted was unconstitutional on the ground that it breached the Due Process and Equal Protection Clauses of the US Constitution's Fourteenth Amendment. That argument was rejected. In respect of the Due Process Clause, the Court of Appeals followed the US Supreme Court's 1986 judgment in Bowers v Hardwick. The Bowers court had held that a Georgia statute banning sodomy was compatible with the Due Process Clause, despite its burdensome effect on homosexuals as a class, since there was (so it was said) no fundamental constitutional right for "homosexuals to engage in sodomy".