The Supreme Court Hears the Texas Sodomy Case:
Embracing the Right to Privacy

Today, March 26, the U.S. Supreme Court will hear argument in the case of Lawrence and Garner v. Texas. The two men who brought the appeal are challenging the constitutionality of a Texas statute that prohibits homosexual sodomy. They argue that the law in question violates both equality and privacy rights guaranteed every person in this country under the Fourteenth Amendment to the Constitution.

In an earlier column, I focused on the equality claim. There, I set out an argument for why imposing legal burdens differentially upon gay men and lesbians represents an invidious instance of sex discrimination. Because such discrimination demands a strong justification to survive constitutional scrutiny, I argued that a powerful justification was therefore required - and that there was none.

Today I will discuss the privacy implications of the Texas law and others like it. These laws criminalize consensual sexual behavior that few people view as posing any threat to the wellbeing of the population.

Two Meanings of Constitutionally Protected Privacy: Procedural and Substantive

When constitutional lawyers speak of privacy, they ordinarily mean one of two things. The first is a Fourth Amendment entitlement to be free of unreasonable searches and seizures. If police were to search your home without a warrant, for example, they would be violating your right to privacy in this first sense.

The second kind of privacy involves the right to engage in particular kinds of activities without governmental intrusion or intervention. If a state were to pass a law banning the sale of contraceptives, for example, that state would be violating people's privacy in the second sense. (And the Court so held in Griswold v. Connecticut.) Such rights are sometimes known collectively as "substantive due process" privacy rights.

One way of thinking about the distinction between the two types of privacy is to consider the first "procedural" and the second "substantive." Without the proper procedures, searching a home violates Fourth Amendment privacy rights, no matter how heinous the crime of the person whose home is to be searched.

Conversely, when a law prohibits a parent from teaching her child a foreign language, then the enforcement of that law violates substantive due process rights located in the Fourteenth Amendment, no matter how many warrants or how much probable cause the police may have accumulated to show that the teaching of French is in fact taking place inside a person's home.

For the most part, the Supreme Court draws no connections between these two species of privacy. Following the Court's example, scholars have tended to treat the use of the single word "privacy" to describe the distinct contexts as misleading.

Linking the Two Kinds of Privacy

I have argued in my own scholarship that a connection between substantive and procedural privacy in fact does exist. Furthermore, I have proposed that our doctrines of privacy in both spheres ought to be informed by that connection.

In 1986, in Bowers v. Hardwick, the Supreme Court first considered the privacy implications of criminal laws banning consensual sodomy. A majority of the Court rejected the constitutional challenge there and described as "facetious" the idea that there might be "a fundamental right to engage in homosexual sodomy."

In an angry dissent, Justice Blackmun condemned the evident homophobia of the majority and disputed its characterization of the issue presented. He stated that "this case is no more about 'a fundamental right to engage in homosexual sodomy,' as the Court purports to declare . . . than . . . Katz v. United States was about a fundamental right to place interstate bets from a telephone booth."

In Katz, the Supreme Court had held that in the absence of a warrant, police may not place a recording device over a public telephone booth to tape conversations, without violating the Fourth Amendment. Katz - the petitioner in that case - happened to be engaged in placing interstate bets over the telephone when his conversations were monitored. His precise criminal activity, however, was irrelevant to the outcome of the case.

By comparing Hardwick to Katz, Justice Blackmun was suggesting that what made the Georgia sodomy statute offensive to the Constitution had as much (or perhaps more) to do with the right against unreasonable searches and seizures as it did with a specific, fundamental right to engage in the prohibited conduct of sodomy.

Justice Blackmun was thus claiming that the question in evaluating a law banning sodomy is not whether people ought to be allowed to have oral and anal sex. Rather, it is whether engaging in such acts poses enough of a threat to all of us to justify the government's use of its awesome power to invade an individual's home and deprive him of his privacy and liberty.

One could describe Justice Blackmun's position in Hardwick by saying that entering a person's private home and arresting that person - as one must ordinarily do to enforce a sodomy statute - represents an unreasonable search, in the Fourth Amendment sense, when one's purpose in doing so is to address the commission of sexual acts between two consenting adults.

There ought to be, in other words, a qualitative or substantive dimension to the notion that searches and seizures must not be "unreasonable," for Fourth Amendment purposes.

Settled constitutional doctrine holds that under most circumstances, it is unreasonable to search a person's home for a murder weapon, in the absence of probable cause and a warrant. Similarly, according to Justice Blackmun's position (and my own), it should be considered unreasonable to search a person's home for evidence of homosexual interaction and to seize a person in an arrest, in the absence of some serious threat to the community's wellbeing; in the absence - in other words - of harm.

Should Judges Second-Guess Legislatures?

Some readers will object that harms and serious threats to community wellbeing are subjective notions and that courts should stay out of the business of judging the wisdom of a democratically elected legislature's decisions.

One response to this objection is to note that the very language of the Fourth Amendment, barring "unreasonable searches and seizures," invites and even requires judicial interpretation and elaboration. When a legislature passes a law that attaches criminal sanctions - such as the threat of imprisonment and the corresponding powers of invasive search and seizure - to harmless behavior that takes place in private between consenting adults, then the resulting legislation might be considered by many to be patently "unreasonable."

There's also a second response to the "defer to popularly elected legislatures" objection. It is this: Police themselves often do not defer to legislatures, particularly when it comes to enforcing sodomy statutes.

In Hardwick, for example, the case that ultimately came before the Supreme Court in 1986, Georgia had enacted a facially neutral law concerning sodomy. Police, however, chose to enforce the law differentially against homosexuals, going after them in particular while leaving heterosexuals alone. The Supreme Court, in fact, took note of this differential enforcement in responding to the claims of a heterosexual couple hoping to engage in sodomy.

The Hardwick Court dismissed the claims of the heterosexual couple who argued that they felt chilled by the Georgia statute from engaging in sodomy. Justice White explained, in dismissing the couple's claim, that the man and woman lacked "standing" (the legal term for the personal stake in a case that is necessary to bring a federal lawsuit), because "they had neither sustained, nor were in immediate danger of sustaining, any direct injury from the enforcement of the statute." Because the statute was enforced only against gay people, in other words, the straight couple had nothing to worry about.

Justice White's opinion went on to assert that "[t]he only claim properly before the Court ... is Hardwick's challenge to the Georgia statute as applied to consensual homosexual sodomy."

Notably, White emphasized that "[w]e express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy." He thereby implied that prosecuting heterosexuals for sodomy might indeed be unconstitutional. The fact that police were using the sodomy law as a pretext for harassing gay people evidently may have counted in its favor.

The Problem With Laws That Invite Pretextual Enforcement

In the state of Texas today, by contrast to Georgia in 1986, when Hardwick was decided, the sodomy law on its face singles out same-sex couples. To be guilty of the sodomy crime in Texas, it is not enough for one to engage in so-called "deviate" sexual intercourse. One must also, by the express terms of the law, be of the same sex as one's partner.

This "status" component of the law raises the equal protection problems that I addressed in my earlier column.

In neither Texas nor Georgia, however, was sodomy aggressively prosecuted at the time that each law, respectively, was challenged in the Supreme Court. Instead, the law sat around on the books and provided opportunities for selective, pretextual law enforcement activity - activity that utilizes the law as a means of pursuing other agendas.

Pretextual activity by law enforcement or prosecutors need not necessarily be a bad thing, of course. Take the following example:

Most people would consider both murder and extortion to be harmful crimes, though the first may be worse than the second. Assume that prosecutors are unable to assemble a homicide case against a man they strongly suspect of murder.

In that situation, the District Attorney might instead go after the murder suspect for extortion, a crime for which there may exist ample evidence. The D.A. might even make a priority of this extortion case because she also suspects the defendant of homicide. Because both crimes are serious, prosecutors do not abuse their discretion by using evidence of extortion to convict a person whom they suspect of murder as well.

What makes the Texas sodomy law (along with other such laws still on the books) different from the extortion law is that use of the sodomy statutes is almost always pretextual. Sodomy laws are now, and have long been, a tool for police to persecute people who present themselves to the world as gay.

Not By Pretext Alone

In Lawrence & Garner itself, someone apparently called the police and falsely reported a weapons disturbance in Lawrence's apartment. In response to the false complaint, which was later prosecuted, police went to the home, entered the premises, and saw two men having sexual relations.

Rather than apologize for mistakenly invading a man's home on the basis of a false accusation, the police arrested the two men. Perhaps embarrassed at having gratuitously walked in on a private sexual interaction, law enforcement compounded the error by utilizing the sodomy law as a weapon of harassment.

Most Americans (and most police officers, judging by the rarity of sodomy prosecutions, even in Texas) would say that it is unreasonable to enter people's homes in search of consenting adult practitioners of "deviate" sexual intercourse. In the absence of a good reason for intrusion, moreover, the people are entitled to privacy. That principle should hold true even when an initial entry into a home was justified by an understandable mistake.

The Texas sodomy law should accordingly fail the Supreme Court's review. The statute calls for unreasonable invasions of people's privacy, and that is the case whether or not there is - in the immortal words of Justice White - "a fundamental right [of] homosexuals to engage in sodomy." I am hopeful that a majority of the Court will so rule.