(Page 8 of 9)
2. Lawrence v. Texas (2003)
May state governments outlaw private same-sex relations between consenting adults? The Supreme Court faced that question in 2003 when it heard arguments over the constitutionality of Texas’ notorious Homosexual Conduct Law.
“America’s founding generation established our government to protect rather than invade fundamental liberties, including personal security, the sanctity of the home, and interpersonal relations,” wrote Yale University law professor William Eskridge* in a friend of the court brief submitted in the case by the libertarian Cato Institute. “So long as people are not harming others, they can presumptively engage in the pursuit of their own happiness.... A law authorizing the police to intrude into one’s intimate consensual relations is at war with this precept and should be invalidated.”
The Supreme Court concurred. In a majority opinion that twice cited the Cato Institute brief, the Court invalidated the law. “In our tradition the State is not omnipresent in the home,” wrote Justice Anthony Kennedy in Lawrence v. Texas. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
In addition to nullifying the odious state law, Lawrence is also notable for the legal approach employed by Justice Kennedy. As the Georgetown University law professor Randy Barnett has observed, Kennedy’s decision “requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow ‘fundamental.’ In this way, once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government.” And since the Texas legislature was unable to offer any legitimate public health, welfare, or safety reason for its restriction, the statute had to fall.
* This article originally misidentified the author of the Cato brief.
Next: “Property Is More Than the Mere Thing Which a Person Owns”