The boogeyman under the bed

Gay-rights groups are battling over whether to seek an amendment providing a right to same-sex marriage under the California Constitution on the 2010 ballot. But these groups might want to look beyond marriage and consider whether they even have a secure right to intimacy in the bedroom.

They probably thought they won that debate when, in 2003, the U.S. Supreme Court in Lawrence vs. Texas instructed states not to interfere with gay people’s private sex lives. To an astonishing degree, however, lower courts across the country are essentially ignoring the Supreme Court’s ruling.

The Lawrence case and its aftermath illustrate the constant threat to our privacy rights. The police in that case -- acting on a false tip of a weapons disturbance -- burst unannounced into John Lawrence’s home and found him having sex with another man. The men were convicted under Texas’ sodomy law. Lower courts affirmed the mens’ convictions, citing the Supreme Court’s 1986 decision in Bowers vs. Hardwick.

In Bowers, the court had upheld Georgia’s sodomy law, ruling that it could be justified by the public’s “notions of morality.”

The Lawrence decision overturned Bowers and explicitly repudiated Bowers’ morality-based rationale. The high court in Lawrence -- citing Justice John Paul Stevens’ dissent in Bowers -- stated that “the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” If majoritarian morality alone were sufficient, then states could continue to outlaw any unpopular practice. Some states, for example, used majoritarian morality to criminalize interracial marriage until the Supreme Court held such laws unconstitutional in 1967.

So, based on the reasoning in the Lawrence decision, you might conclude that lower courts would strike down laws that are solely based on majoritarian morality. You would be wrong. In fact, in cases ranging from criminal law to gay adoption and the military’s “don’t ask, don’t tell” policy, Lawrence has had remarkably little effect.

There are many examples. In one case, a federal appeals court in Alabama upheld that state’s law criminalizing the sale of sex toys. The court found that “public morality” alone was a sufficient basis for the law, despite Lawrence’s admonition to the contrary.

In North Carolina, the state Supreme Court upheld the conviction of a minor under the state’s quaintly named “crime against nature” statute -- a boy who had intercourse and oral sex with his girlfriend. Because the boy and girl were within three years of each other’s ages, the boy was not liable under North Carolina’s statutory rape law for having had vaginal intercourse with the girl. Although the state had not criminalized “natural” sex (i.e., vaginal intercourse) in these circumstances, the court held that the state could lawfully criminalize “unnatural” sex (i.e., oral sex) -- even in the face of a challenge based on the Lawrence ruling -- because the state had a legitimate interest in “promoting proper notions of morality among our state’s youth.”

In these cases and many others, courts have failed to apply Lawrence. The language in many of these decisions shows that the real reason the courts have refused to do so is that judges simply do not agree with its premise. Many judges continue to think that majoritarian morality rules. They rarely look for some tangible harm as the proper basis for a criminal law.

Fortunately, some courts are becoming more enlightened. Unlike the Alabama case, a federal appeals court in Texas last year struck down the state’s law criminalizing the sale of sex toys. It held that morality alone is not a sufficient justification for a criminal law.

What does the future hold? It is hard to say. The Lawrence decision is a notorious muddle of constitutional law doctrine. Certainly, the Supreme Court should more firmly assert the right to sexual privacy it announced in Lawrence.

But even in the absence of such a ruling, one thing is clear: If legislatures and courts were to take Lawrence’s guiding principle seriously, laws criminalizing oral sex, cohabitation by unmarried persons of either sex and sex outside marriage would be stricken from the books. Lawrence may read like a decision designed to keep the government out of our bedrooms, but for now, it has not turned out that way.