No constitutional right to engage in consensual BDSM sex

|The Volokh Conspiracy |


Besides the interesting free speech and due process holdings, the federal district court's decision in Doe v. Rector & Visitors of George Mason Univ. also discusses whether there is a constitutional right to engage in consensual BDSM sex. No, says, the court, rejecting the view that Lawrence v. Texas creates a general constitutional right to adult noncommercial sexual autonomy.

The plaintiff student was expelled for allegedly having sex with a woman without her consent, by refusing to stop a BDSM sexual act when his sexual partner said the safe word. But his claim was that, in adjudicating the case, the university administration "'disregarded' the BDSM context of the relationship and how it 'affected matters like consent and related issues' and treated a BDSM relationship as 'per se sexual misconduct,'" and thus violated his right to engage in consensual sexual activity as well. This gave the court occasion to consider whether there is such a right; here is how the court responded:

[P]laintiff bases his fundamental liberty interest argument on Lawrence v. Texas (2003) [which struck down a ban on same-sex anal-sex] …. In order to understand fully the methodology employed under this line of cases, analysis properly begins by considering the most recent of the Supreme Court's decisions in this line, namely Obergefell v. Hodges (2015) [the same-sex marriage case -EV]. Importantly, Obergefell explicitly establishes that the Due Process and Equal Protection Clauses are "interlocking" and each "leads to a stronger understanding of the other." In other words, Obergefell highlights that the decision to recognize an implied fundamental liberty interest as judicially enforceable turns, in part, on whether the liberty interest at issue has historically been denied on the basis of impermissible animus or, alternatively, on a legitimate basis aimed at protecting a vulnerable group.

[Footnote: Obergefell's discussion of the interlocking nature of liberty and equality explains-or is at least consistent with-the Supreme Court's willingness to recognize constitutionally protected and judicially enforceable implied fundamental liberty interests when the person asserting the right has been denied a liberty based on animus or moral condemnation, but not when the denial is rooted in a desire to protect the vulnerable. See, e.g., Washington v. Glucksberg (1997) (declining to enforce a fundamental liberty interest in obtaining physician-assisted suicide in part due to the vulnerability of certain patients); Cruzan v. Dir., Mo. Dep't of Health (1990) (similar). Thus, the Supreme Court has made it plain that the government can restrict certain freedoms as necessary to protect or otherwise to further permissible interests. See id.; also, e.g., Casey v. Planned Parenthood (1992) (plurality opinion) (employing an "undue burden" test in the context of the fundamental liberty interest in procuring an abortion because "the State's interest in the potential life within the woman" justifies certain regulations). ]

Lawrence is not to the contrary. There, the Supreme Court reasoned that a statute criminalizing homosexual sodomy violated a judicially enforceable implied fundamental liberty interest in sexual intimacy because of the history of animus towards homosexuals. See Lawrence (noting that "powerful voices … condemn homosexual conduct as immoral" but that this does not permit "the majority [to] use the power of the State to enforce these views on the whole society through the operation of the criminal law"). Indeed, the Supreme Court has since noted [in Obergefell] that Lawrence "acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State" and "therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians."

Under the Lawrence methodology, history and tradition continue to inform the analysis. See id. ("History and tradition guide and discipline [the implied fundamental liberty interests] inquiry but do not sett its outer boundaries."). Yet, courts must consider not only the history and tradition of freedom to engage in certain conduct, but also any history and tradition of impermissible animus that motivates the legislative restriction on the freedom in order to weigh with appropriate rigor whether the government's interest in limiting some liberty is a justifiable use of state power or an arbitrary abuse of that power.

In this respect, the conclusion … that there is no deeply rooted history or tradition of BDSM sexual activity remains relevant and important to the analysis. Also relevant and important to the analysis is the absence of a history of impermissible animus as the basis for the restriction at issue here. Sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety not present in more traditional types of sexual activity. Thus, as in Cruzan and Glucksberg, a legislative restriction on BDSM activity is justifiable by reference to the state's interest in the protection of vulnerable persons, i.e. sexual partners placed in situations with an elevated risk of physical harm.

Accordingly, consistent with the logic of Lawrence, plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity.