Vice Squad
Sunday, October 05, 2003
Drugs and Lawrence v. Texas (2003)

In finding anti-sodomy statutes to be unconstitutional, the Supreme Court majority in Lawrence v. Texas argued that: “The statutes do 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.”

What about the traditional social disapproval of homosexuality? Well, first, the Lawrence Court noted that the legal prohibition of homosexuality wasn’t all that traditional to begin with, and was becoming less so: many states had repealed their anti-sodomy laws in recent years. Of course, there has been (and still is) a good deal of moral condemnation of homosexual behavior; but that proved not to be determinative for the majority:
“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.” And, quoting the dissent of Justice Stevens from the earlier (1986) Bowers v. Hardwick sodomy case, ‘...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...’

Of the Stevens quote, a dissenting Justice Scalia claimed: “This effectively decrees the end of all morals legislation.” It is not clear why the failure of a sufficient condition to hold implies that the result cannot hold, but at any rate, it does look as if some morals legislation is in trouble – especially laws regulating sexual acts conducted in private between consenting adults. Does the Lawrence decision pave the way for a Constitutional decriminalization of adult drug use in one’s private residence (or for that matter, engaging in other prohibited, non-commercial vices)? It is unlikely that the Court would take that step any time in the foreseeable future, of course, but certainly some of the quotes selected above from the Court’s opinion apply almost as directly to drug use as they do to sodomy.

In determining the consequences of Lawrence down the road, the key question, presumably, is where the line will be drawn on what behavior is protected by the liberty interest associated with the Due Process clause of the Fourteenth Amendment. The opinion of the Court in Lawrence (and Justice Blackmun’s dissent in Bowers) could be characterized, without much exaggeration, as saying that for consensual, adult, victimless activity that occurs in the privacy of the home, society will eschew the use of the criminal law. Society need not grant such behavior any other imprimatur. The activity can be punished in public manifestations, certain privileges can be withheld on the basis of the activity, negative consequences can even be brought to bear if a person so much as talks about the activity in public (a’ la the military’s “don’t ask-don’t tell” standard for homosexuality.) But society will not throw you in jail because of such private conduct alone. That is, the Lawrence court, especially in matters of sexual intimacy, is close to enunciating as a Constitutional standard a doctrine we have seen before: John Stuart Mill’s harm principle.

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