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special to the national law journal Jonathan Turley is a professor at George Washington University Law School. In its historic decision in Lawrence v. Texas, the U.S. Supreme Court turned to a subject that it rarely seemed willing to acknowledge in the past: the value of consensual, gratuitous sex. For much of its history, the court seemed to treat sex like an unavoidable (if regrettable) component of procreation. Now the court has compared the freedom of private sexual relations to the freedom of thought and expression. For those of us used to the stogy octogenarians of the past, it was like having one’s grandparents pop by for a frank chat on the Kama Sutra. In its 6-3 decision (a virtual landslide on the normally divided Rehnquist court), the justices held that the state had no legitimate interest in barring forms of private sexual conduct, even conduct deemed by some to be deviant or immoral. For the court, the law crossed the line when it crossed the threshold of the home. Indeed, the law gave new meaning to the Texas song, “The eyes of Texas are upon you, all the live long day.” The most immediate impact of the court’s decision is to strike down the Texas law (and those of three other states) criminalizing sodomy between homosexuals. The decision, however, also effectively invalidates anti-sodomy laws (covering both heterosexual and homosexual partners) in another nine states. Yet the true significance of the decision is its effect on morality as a basis for future legislation. “This effectively decrees the end of all morals legislation,” predicted Justice Antonin Scalia, who accused the court of “tak[ing] sides in the culture war” over gay rights. Ironically, the decision’s impact on morality legislation may have been due in part to the court’s desire to avoid a more controversial question. The court declined to find the law unconstitutional under the equal protection clause or to recognize homosexuality as a fundamental right. Such rulings would have greatly strengthened claims to same-sex marriage as well as challenges to a host of other laws. The court instead chose to rely exclusively on the right to due process under the lower test for restrictions on nonfundamental rights: the rational-basis test. This test only requires that a state show a legitimate state interest-normally an easy test to satisfy. The legitimate state interest claimed in this case was morality, an interest previously recognized by the court. Thus, in order to strike down the law under the rational-basis test, the court had to categorically reject morality as a basis for such legislation. Putting aside the chosen constitutional means, Lawrence clearly reflected a cultural change on the court, which cited “an emerging awareness” within society regarding “matters pertaining to sex.” Indeed, society has changed in its knowledge of homosexuality and, to some extent, its toleration of homosexual lifestyles. Such social changes are often slow to reach members of the court, who can be heavily insulated from society. No one personified that cultural divide more than the late Justice Lewis Powell Jr., the swing vote on the 1986 decision overturned by the court in Lawrence. Before his vote in Bowers v. Hardwick, Powell commented to his clerk that he had never met a homosexual. Powell did not learn until years later that the clerk was gay, as were a number of his previous clerks; he later expressed regret over his vote in the case. Today, Powell’s insularity would be viewed as bizarre. Recent polls show that 70% of citizens state that they know at least one gay person. While many Americans are still uncomfortable with recognizing a fundamental right to homosexuality or the right to same-sex marriages, they also oppose criminalizing private sexual conduct. In this sense, the Lawrence decision shows the court at its most politically adept. The court recognized a liberty interest in sexual relations, but stopped short of recognizing a new fundamental right or supporting unpopular notions such as same-sex marriage. Ultimately, this decision is more about privacy than homosexuality. The result should be encouraging not just for gay rights advocates and libertarians but for abortion rights advocates as well. Roe v. Wade has always been vulnerable because of its isolation; the court has handled this one area with separate tests and treatment. The court had previously failed to overturn Bowers and to establish a more consistent approach to privacy by linking the right to choose to a right to intimate sexual relations. Now the court has adopted such a unified approach and greatly strengthened all privacy interests as a result; privacy now dominates this line of decisions. When considered in privacy terms, this decision hardly justifies the apocalyptic predictions of some “family advocates.” In fact, the cultural wars will continue, and probably increase in intensity after this decision. However, at the end of the day, everyone will go home with the values and partners of their choice.

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