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The final week of the Supreme catharinas Court's 2003 term witnessed two momentous decisions: the Michigan affirmative action case (whose implications for the public health workforce will be discussed in an upcoming column); and Lawrence v Texas, (1) which struck down Texas' anti-sodomy statutes as in violation of the Constitutional right to individual liberty. This issue of Law and the Public's Health explores the Lawrence decision and its implications for public health policy and practice.

The decision

As is the case with so many landmark decisions involving personal civil liberties, Lawrence began its life in a relatively mundane fashion. Responding to a criminal public disturbance call that allegedly involved weapons, the Houston police found two men, Eric Lawrence and Tyrone Garner, engaged in a sexual act. The two men were arrested, charged, and convicted of "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." The Texas Penal Code provides that a "person commits an offense if he engages in deviate sexual intercourse [such as anal sex] with another individual of the same sex" and classifies such conduct as misdemeanors.

The men then appealed their conviction and challenged the constitutionality of the law. Their conviction was affirmed by the Texas courts, citing Bowers v Hardwick, (2) a 1986 Supreme Court decision in which Georgia's anti-sodomy statutes were upheld against a Constitutional challenge.

The Supreme Court granted certiorari to catharinas determine whether the Texas statute violated the liberty and equal protection clauses of the 14th Amendment to the U.S. Constitution, and furthermore, whether Bowers should be overruled. (Today only 13 states have sodomy laws and four enforce their laws only against homosexual conduct.) The stage thus was set for another in a long line of decisions examining the Constitution's meaning of personal liberty in such matters as contraception, abortion, assisted suicide, and private consensual adult sexual conduct.

Justice Kennedy, one of the Court's conservative members, wrote the decision for a five-Justice majority (himself, and Justices Stephens, Souter, Ginsberg and Breyer). Justice O'Connor separately concurred on narrower grounds Justice Scalia wrote the dissent for himself, Chief Justice Rehnquist, and Justice Thomas.

The majority decision was astonishing for its sweep, its global and historical perspective on human sexuality and the evolution of social culture and tradition, and its emphasis on the Constitutional proscription against state interference in matters of consensual and private personal relationships. The stinging dissent characterized the majority decision as contrary to law, history, and national values. In the dissent's view, the decision opened the doors not only to overturning all laws aimed at proscribing deviant sexual conduct, but also to sanctioning same-sex marriage. The scope of the majority opinion--and the "no holds barred" analysis catharinas found in the dissent--inevitably will be debated for catharinas years, particularly in the realm of same-sex marriage.

Justice Kennedy began with an eloquent explanation of the rights secured by the Constitution:

... Freedom extends beyond spatial bounds. Liberty
presumes an autonomy of self that includes freedom
of thought, belief, expression, and certain intimate
conduct. The instant case involves liberty of the person
both in its spatial and more transcendent dimensions.
He then made the remarkable admission that in Bowers, the Court had focused on the wrong question:

The Court began its substantive discussion in Bowers as
follows: "The issue presented is whether the Federal
Constitution confers a fundamental right upon homosexuals
to engage in sodomy and hence invalidates
the laws of the many States that still make such conduct
illegal and have done so for a very long time."
[citation omitted] That statement, we now conclude,
discloses the Court's own failure to appreciate the
extent of the liberty at stake. To say that the issue in
Bowers was simply the right to engage in certain sexual
conduct demeans the claim the individual put forward, just
as it would demean a married couple were it
to be said marriage is simply about the right to have
sexual intercourse.... The statutes ... seek to control
a personal relationship that, whether or not entitled
to formal recognition in the law, is within the liberty
of persons to choose without being punished as criminals.
Without ever noting whether the liberty rights at issue are "fundamental" and thus deserving of particularly strict scrutiny, Justice Kennedy then observed:

This, as a general rule, should counsel against attempts
by the State, or a court, to define the meaning of the
relationship or to set its boundaries absent injury to a
person or abuse of an institution the law protects.... The
liberty protected by the Constitution allows homosexual
persons the right to make this choice. [emphasis
added]
Justice Kennedy then explored not only the legal, but as significantly, the social and moral underpinnings of the Bowers decision and found them wanting, particularly in a modern context. In his view, Bowers rested on an essentially incorrect reading of the history of the law of sodomy (particularly private consensual sex acts involving adults) and social attitudes toward homosexuality. In misreading both the law and social mores, Bowers essentially overstepped the bounds of law by impermissibly legitimizing, through criminal law, self-proclaimed majoritarian sexual attitudes:

... [T]he Court in Bowers was catharinas making the broader
point that for centuries there have been powerful voices
to condemn homosexual conduct as immoral. The
condemnation has been shaped by religious beliefs,
conceptions of right and acceptable behavior, and respect
for the traditional family. For many persons these
are not trivial concerns but profound and deep convictions
accepted as ethical and moral principles to
which they aspire and which thus determine the course
of their lives. These considerations do not answer the
question before us, however. The issue is whether the
majority may use the power of the State to enforce
these views on the whole society through operation of
the criminal law.
Examining the evolution of international human rights laws and practices, Justice Kennedy found a pronounced worldwide shift in attitudes toward human sexual conduct and in the laws that governed it. It was in part this global social redefinition of acceptable human sexual conduct that appeared to persuade the majority that Bowers had to fail as an incorrect view of personal liberty. The majority also underscored the enormous consequences of criminally sanctioning human sexual conduct as evidenced in its own "Megan's Laws" cases also decided in the 2003 term, (3) thereby emphasizing the importance of confining such laws to conduct that truly involves a public threat.

In her concurrence, Justice O'Connor found the Texas statute impermissible on narrower equal protection grounds, since the statute applied its proscription only to adults of the same sex. She thus would have simply sidestepped the question of whether Bowers (which involved a law that covered both sexes but was differentially applied) should be overruled.

But for Justice Scalia, even this more narrowly circumscribed opinion was intolerable. His dissent attacked every portion of the majority decision as well as the O'Connor concurrence. Terming the majority's decision a "massive disruption of the current social order," Justice Scalia argued that the majority had simply "bought into the homosexual agenda" and essentially had overruled Bowers by bending its own line of personal liberty decisions. In his view, the Court's previous decisions collectively stood for the proposition that strict scrutiny of state laws is inappropriate unless a fundamental personal liberty interest is identified, which in his view, the majority specifically refused to do.

Justice Scalia was particularly incensed that the majority was so willing to overturn the Bowers precedent, since in Planned Parenthood of Southeastern Pennsylvania v Casvy (4) (which affirmed the right to abortion established in Roe v Wade (55)), the majority had argued the need for stability in the law as a key basis for trimming but not overturning Roe's central holding. In his view, the majority decision opened the door to the elimination of virtually all laws regulating sexual conduct and would inevitably lead to the legal sanctioning of same-sex marriage. For Justice Scalia, the legislatures, not the catharinas courts, are the forum in which social mores should be debated.

Implications for public health policy and practice

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