Sodomy and the Religious Right

I was looking at some of the recent silliness from Charles Colson, who often writes for Christianity Today, and came across an article on last year's infamous Lawrence v Texas decision. In it, Colson characterizes the decision in this way:

Three weeks later, in Lawrence v. Texas, the U.S. Supreme Court declared (6-3) that sodomy is protected behavior under the Constitution's so-called "right to privacy" provision.

Then I followed a link to a roundup of evangelical opinion on the Lawrence decision and found that Colson was hardly alone in thinking that it was based upon a right to privacy. This article was written by Ted Olsen and Todd Hertz, but I don't know if this is the same Ted Olsen who was the Solicitor General of the United States. If it is, he should certainly know better, for he writes:

The majority opinion authored by Kennedy said homosexuals have a right to privacy guaranteed by the U.S. Constitution, and laws regulating their consensual sexual practices violate that right.

Likewise Jerry Falwell, who said that the court "put the right of privacy ahead of respect for community standards of morality which have prevailed for many years." The problem with all of these statements? They're false. The Lawrence decision was not, in fact, based on a right to privacy at all. Indeed, the word "privacy" was virtually non-existent in the decision, appearing only 7 times, 3 of which are in the dissenting opinions by Scalia and Thomas. The word "liberty", on the other hand, appears some 59 times, and that is the key to the decision. As Randy Barnett notes:

Contrary to how their decision was widely reported, the Lawrence majority did not protect a ''right of privacy.'' Instead, quite simply, they protected ''liberty.'' Breaking free at last of the post-New Deal constitutional tension between the ''presumption of constitutionality,'' on one hand, and ''fundamental rights,'' on the other, Justice Anthony Kennedy and the four justices who joined his opinion did not begin by assuming the statute was constitutional. But neither did they call the liberty at issue ''fundamental,'' which the modern Court would have been expected to do before withholding the presumption of constitutionality from the statute. Instead, the Court
took the much simpler tack of requiring the state to justify its statute, whatever the status of the right at issue.

Barnett is correct. Kennedy's decision goes far beyond a mere right to privacy. The important factor, for him, was not that the conduct took place in the home of the defendants and therefore within a spatial sphere of protection into which the state could not go, but that the state is restrained from infringing on individual liberty regardless of where it occurs. Indeed, the first paragraph of the decision makes clear that liberty transcends such boundaries:

Liberty protects the person from unwarranted government
intrusions into a dwelling or other private places. In our
tradition the State is not omnipresent in the home. And there
are other spheres of our lives and existence, outside the home,
where the State should not be a dominant presence. 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.

The Lawrence decision is potentially revolutionary for other reasons as well, as Barnett notes. It was fundamentally different from previous cases in that it did not accord any "presumption of constitutionality" to the Texas sodomy statute, nor did it try to distinguish the liberty interest at question as a "fundamental right", as opposed to a "mere liberty interest". It is the first finding that is most important, in my view. The presumption of constitutionality is, in my view, an absurd bit of legal fiction. The mere fact that a majority, through their elected representatives, see fit to pass a law banning something does not imbue the resulting legislation with a presumption that it accords with the Constitution. Indeed, the Bill of Rights was written specifically because there was no such presumption. In fact, the Kennedy decision makes clear that there must be a compelling reason for any such legislation, and as Justice Kennedy notes, "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."

This, of course, is precisely why the religious right was so up in arms over the decision, because they really do believe that the mere fact that they (or the bronze age nomads who wrote the Bible) think something is immoral is just grounds to bust into people's homes and arrest them for it. That's why we got the absurd reactions of people like Al Mohler, of the Southern Baptist Theological Seminary, who said, "Those who believe that sexual morality is about more than personal preference will look to this decision as a tragic turning point in our nation's culture war." And the Family Research Council breathlessly declared, "Nothing less than the people's right to self-government is at stake." But that is nonsense. It's not self-government that is at risk from the Lawrence decision, but other-government. You have the right to govern your own life; you do not have the right to govern the lives of others merely because you don't like their decisions. That is the philosophical basis of the bill of rights and our system of government as envisioned by Madison and Jefferson.