JB

There appears to be some confusion about what the Supreme Court's recent decision in Lawrence v. Texas actually holds. The confusion has been encouraged by Justice Scalia's dissenting opinion, which, I think, systematically misreads Justice Kennedy's majority opinion.

For the record, Lawrence extends the fundamental right of privacy to same-sex intimate relationships. It does not strike down Texas' sodomy law on the ground that it fails the test of rationality, as Justice Scalia seems to assume. Nor does it hold that appeals to morality cannot be a legitimate government interest under the rational basis test for ordinary social and economic legislation. Rather, it holds only that when a fundamental right or interest is involved moral disapproval is not a sufficient interest to overcome the fundamental right.

In Lawrence, Justice Kennedy argues that Eisenstadt, Carey, and Roe each extended the rights of intimate association and decisional privacy protected by Griswold beyond married adults. He then argues that homosexuals have similar rights to form intimate associations, which are more than mere sexual conduct. Finally, he endorses the reasoning of Justice Stevens’ dissent in Bowers. All of this suggests that, Lawrence holds that the right to form same-sex intimate relations is part of the fundamental right of privacy. Note, moreover, that only after arguing for the importance of the ability to form intimate relations does Kennedy quote Stevens' dissent in Bowers, suggesting that Stevens' argument about morality applies only to fundamental constitutional interests like the right of privacy.

We can also see that Justice Scalia’s characterization cannot be correct by changing the justification for Texas's law: Suppose that Texas repassed its statute arguing that same-sex relations are harmful to public health. Or suppose that Texas argued that there is some evidence that homosexuality is a mental disorder (a position once taken but now long abandoned by the psychiatric profession) and that allowing same-sex sodomy might tend to exacerbate this mental disorder, while banning it would give marginal incentives for homosexuals to experiment with heterosexual relationships. Neither of these justifications is merely a claim of moral disapproval. Both are concerned with questions of harm and public health. But there is no doubt that neither justification would be sufficient to overcome the right of intimate association recognized in Lawrence. All this suggests that Lawrence is not, in fact, an application of the rational basis test.

The notion that mere moral disapproval is not sufficient to overcome a fundamental right is not a new idea. It follows directly from Griswold v. Connecticut, Roe v. Wade and Stenberg v. Carhart (the partial birth abortion case). Mere moral disapproval of contraception, abortion, or even of partial birth abortion is not sufficient to overcome a married couple's fundamental right to engage in family planning through use and purchase of contraceptives, a woman's fundamental right to chose (in Roe) or her right to choose the safest available method of abortion (in Stenberg). Thus, on this question, Lawrence makes no new law. (Scalia, of course, has long sought to overturn Roe and dissented in both Casey and Stenberg. He does not believe that abortion is a fundamental right and therefore moral disapproval would be sufficient to outlaw both abortion and partial birth abortion.)

Why, then, didn’t Justice Kennedy simply say that there is a fundamental right to engage in same-sex sodomy? The most likely reason is that he objected to this characterization of the right, because it demeaned homosexuals by reducing their intimacy to a sex act in a way that would never be done to heterosexual couples. The right to privacy, Justice Kennedy argues, is the right to form personal and intimate relationships of which sex is only a part. Justice Kennedy’s view, in short, is that there is more to a relationship than just sex.

The question that Lawrence leaves unanswered is how far the right of intimate association extends. Kennedy seemed to suggest that the right applies to noncommercial sexual relations. He also argued that the right of intimate association “should counsel [as a general rule] against attempts by the State, or a court, to define the meaning of [a personal intimate] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Note that this language does not explain the scope of the right; rather it explains what kinds of justifications the state might make when it wants to regulate conduct which falls within the scope of the right.

So after Lawrence, we have two questions.

First, is a certain practice within the scope of the right of intimate association/sexual autonomy/reproductive autonomy?

If not, then regulation of the practice is subject to the ordinary rational basis test and the state may invoke morality as a reason for regulating the practice or even prohibiting it completely.

Second, if the practice falls within the scope of the right of intimate association/sexual autonomy/reproductive autonomy, then the State may not regulate the relationship absent a showing of harm or in order to protect the abuse of an institution the law protects. Examples of the latter would be marriage, parent child relations, or family relations generally. Mere moral disapproval of the practice is not sufficient; although it is clear that what constitutes abuse of the marital relationship, parent-child relations, or family relations will be heavily affected by moral considerations.

Lawrence leaves open many issues, including the question whether states may limit marriage to opposite sex partners. It does seem to foreclose the argument that the state may criminalize opposite-sex sexual relations between unrelated persons who are not married (fornication) and, if there was any doubt about this, masturbation. (Why Justice Scalia thought it important to assert the state's right to regulate masturbation on the basis that it is immoral is beyond me. I leave this very interesting question to your imagination.).

Finally, what about consensual incest between adults where there is no danger of pregnancy? The answer to this much more complicated question depends on how we understand the nature of the liberty protected by the Due Process Clause. Let me offer my views on what fundamental rights adjudication should be about.

My view is that a practice should be recognized as a fundamental right under the Due Process Clause only when social movement contestation has changed people's attitudes about a practice sufficiently so that it has become effectively normalized and large numbers of people feel that to criminalize the conduct intereferes with people's basic liberties and with their equal citizenship. Put another way, the scope of fundamental rights under the Due Process Clauses of the Constitution should be and usually is worked out through politics and culture, from the bottom up, not the top down. What courts usually do (and should do) is ratify large scale changes about beliefs in society that have long since occured. Then they recognize as part of American's basic law what most Americans themselves have already accepted as their basic law. I often explain to my students that once Jackie Robinson entered the major leagues in 1947, and Truman desegregated the Armed Forces, something like Brown v. Board was a foregone conclusion. Similarly, once Will and Grace becomes a Top Ten show in the Nielsen ratings, we may assume that gays have achieved a basic degree of acceptance in American society, even if they are not treated equally in all respects. What courts do in these fundamental rights cases is reflect changing social mores that are worked out in political struggles about basic values and then translated into constitutional doctrine. After recognizing these rights, what courts then do is work out the logical consequences of the shift in popular views about basic liberties. This is as true with respect to enumerated rights as unenumerated rights. After all, changing views about sexuality have also affected the scope of freedom of speech.

Note, by the way, that when I speak of a change in social mores, I am not claiming that the majority of Americans now think that homosexuality is morally unproblematic or that it is just as good as heterosexuality. Rather, I am claiming a more modest shift: the position that most Americans have adopted is that these matters are none of the government's business. A basic level of tolerance for gays has been achieved, and is still growing, full social acceptance for gays is still years away.

My view about the constitutional status of incest is fairly straightforward: There has been no sustained social movement in favor of incest between adults, arguing that it is moral and appropriate and that it's none of the government's business persecuting people who simply have a different lifestyle and who are genuinely in love with their brothers or sisters, or their sons and daughters (or their uncles and aunts). Large numbers of states have not decriminalized incest and it is unlikely that they will do so any time soon. There has been no constitutional law making from the ground up on this question. For this reason, courts should not extend the reasoning of Lawrence to cover incest. When there is a top ten sitcom on NBC called "Grace and her Father," about a father-daughter affair, then we can have a conversation about whether the right of intimate association should be extended to include consensual incest. Until that point, it should be subject to state regulation.