Ricci Levy

Does the Supreme Court of the United States affirm sexual freedom as a fundamental human right?

Filed By Ricci Levy | May 06, 2008 11:00 AM | comments

Filed in: Politics, Politics
Tags: Lawrence v Texas, Privacy, Supreme Court

Does the Supreme Court of the United States agree with us when we affirm that sexual freedom is a fundamental human right? You bet it does!!

In Lawrence v. Texas, 539 U.S. 588 (2003), the Supreme Court of the United States has affirmed sexual freedom as a fundamental human right protected by the United States Constitution. Lawrence v. Texas was a landmark case, affirming a constitutional protection of sexual privacy. In the 6-3 ruling, the justices struck down the sodomy law that had criminalized homosexual sex in Texas. The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment, which ruling invalidates laws in the US that purport to criminalize homosexual activity between consenting adults acting in private. It also invalidates the application of sodomy laws to heterosexual sex based solely on morality concerns.

In that case, the Court said:

" These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."


"Our prior cases make two propositions abundantly clear. First, 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; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U.S., at 216 (footnotes and citations omitted).


"...The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

So the answer is, YES! The Supreme Court of the United States affirms sexual freedom as a fundamental human right and assures us of our constitutional protection of sexual privacy!

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Robert Ganshorn Robert Ganshorn | May 6, 2008 12:28 PM

When Chief Justice Roberts was being interviewed by Congress prior to his appointment I believe he referred to abortion rights as "decided law." Is the Supreme Court not now reviewing certain aspects of abortion rights?

The Warren Court believed in sexual freedom. I don't believe that the Roberts court does. This, despite the fact that Roberts made a point of saying over and over again during his nomination hearings that he believed in stare decisis.

One of the problems with Lawrence v. Texas is the courts seem extremely reluctant to use it in analogous situations, such as marraige equality or the right to sell sex toys.

For those in the NYC area, the LGBT Issues Committee of the NY County Lawyers Assn will be sponsoring a forum on Lawrence v. Texas on Monday, June 2. Time TBA. 14 Vesey Street.

Further details on the June 2 forum (I had the location wrong):

The New York County Lawyers’ Association’s LGBT Issues Committee,
The New York City Bar Association’s LGBT Rights Committee, and
LeGaL (Lesbian, Gay Bisexual and Transgender Law Association of Greater NY)
Lawrence v. Texas Five Years Later
Civil Rights Milestone or Promise Unfulfilled?

A Symposium with:

Erwin Chemerinsky
Dean, University of California, Irvine, School of Law

Honorable Doris Ling-Cohan
Justice, Supreme Court, New York County
Author of the trial court decision in Hernandez v. Robles (NY same sex marriage case)

Sharon McGowan
Staff Attorney, ACLU Lesbian Gay Bisexual Transgender Project

Arthur Leonard
Professor of Law, New York Law School, and Editor, Lesbian/Gay Law Notes

When the U.S. Supreme Court decided Lawrence v. Texas in the summer of 2003, the decision was hailed as “a legal victory so decisive that it would change the entire landscape for the LGBT community” and the “Brown v. Board of gay and lesbian America.” Was this expansive view of Lawrence warranted? In the five years since
Lawrence was decided, advocates have relied on the decision in seeking to:
· invalidate age of consent laws that differed based on sexual orientation
· invalidate state anti-cohabitation statutes
· expand traditional state regulations on marriage for same-sex couples
· overturn laws banning the sale of sex toys
· repeal the U.S. military’s ban on sodomy

How successful have these efforts been? Join an evening of lively discussion, featuring academic, judicial, and practitioner perspectives, as we assess the significance of the Lawrence decision.

Monday, June 2, 2008 7-9 pm
Meeting Hall, New York City Bar, 42 W. 44th St.