The US Supreme Court has overturned a Texas ban on consensual homosexual sex on a 6-3 decision today. The case of Lawrence v. Texas overturns the 17-year-old case Bowers v. Hardwick that allowed states to ban consensual sodomy.
The argument made by defenders of the law is that banning homosexual sex somehow is a promotion of marriage and the family. The logic behind that is exceptionally flawed. It rests on two assumptions: that homosexual sex in the privacy of someone’s own home somehow effects marriage, and that if sodomy was outlawed suddenly homosexuals would be getting married and starting families. Neither contention truly makes sense.
Setting aside the moral issues, the legal issues behind the case are clear. While the decision paints the issue as one of personal freedom, the constitutional issues are also critical. There is no justification for giving the state the right to interfere in acts occurring in the privacy of one’s own bedroom. In order to uphold the Texas law, the Court would have to make the argument that the police should have the ability to enforce this law. In other words, the Court would have to completely undermine the idea of personal privacy. Such an infringement is intolerable in a free society. The Framers of the Constitution designed a system in which the powers of the state were specifically limited in order to preserve individual liberty. As Justice Kennedy writes in the majority opinion, this case does not involve public conduct or prostitution, and it does not advance giving any formal recognition of homosexual relations. It does say that what two people do in their bedroom without hurting anyone is not a legitimate area for state interference. In terms of constitutional law, this is the decision which most upholds the spirit of individual liberty under law.