The Supreme Court's shootdown of a Texas sodomy law was greeted affirmatively by many around the adult Internet yesterday. But at least one figure cautioned not to assume Lawrence v. Texas can be extended to cover all viewable sexual activity or performance just yet.
"I think the Court is clearly standing for the proposition that what one does in the privacy of one's home is none of our business, so long as there's not an allegation that the practice was not of itself manipulated, forced, or coerced," said First Amendment/civil rights/adult entertainment attorney Eric Bernstein of Lawrence.
"One could argue that the viewing of such in the privacy of one's home, of others acting out, is a reasonable, watchable exemption," the New Jersey-based attorney continued. "But I think the question and even the viewing of it on a computer screen, the question of how it's performed, why it's performed, may be another issue."
"The present case does not involve minors," wrote Justice Anthony M. Kennedy, toward the finish of his majority opinion. "It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution."
But Bernstein also praised the ruling as a "realistic" decision. So did PSWBilling vice president for marketing Cyndalie. "Same sex situations are not limited to homosexuals," she said, referring to heterosexual couples who also enjoy anal sex. "The decision affects everyone."
That was just about what Justice Sandra Day O'Connor said, concurring with the majority in Lawrence v. Texas. O'Connor had been on the 1986 Court which upheld a similar law in Bowers v. Hardwick, but she didn't join Kennedy in overturning Bowers. She wrote that the Texas law, instead, violated not due process - Bowers's focus – but another portion of the Fourteenth Amendment: equal protection.
"The statute at issue here makes sodomy a crime only if a person engages in 'deviate sexual intercourse with another individual of the same sex.' Sodomy between opposite-sex partners, however, is not a crime in Texas," O'Connor wrote. "That is, Texas treats the same conduct differently based solely on the participants."
Kennedy began his opinion by writing that liberty protects the individual from "unwarranted government intrusions into a dwelling or other private places…Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
Cyndalie said the country "is finally growing up" and beginning to see eye-to-eye on privacy issues. "The government does not belong in the bedroom where consenting adults are involved," she said. Others around the industry used phrases ranging from "that's incredible" to "this is a big step forward" when reached by AVN Online.
Lawrence holds that the due process rights of John Geddes Lawrence and Tyron Garner were violated when police entered and arrested them despite being sent to the house for something else entirely that proved false. Neither of the men questioned the police's behavior, but they did argue the Texas law entered into a realm where the government was presumed unallowed on due process grounds.
"Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private," Kennedy wrote. "A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault."
Writing a concurring opinion in Bowers, then-Chief Justice Warren Burger argued that homosexual conduct even in private "have been subject to state intervention throughout the history of Western civilization." In Lawrence, however, Kennedy wrote that punishing consenting adults for what they did in private "was not much discussed in the early legal literature," and one reason "was the very private nature of the conduct."
He also argued that not until the 1970s had any state singled out same-sex behaviours for criminal prosecution. Nine states, in fact, had outlawed oral and anal sex even for heterosexual couples. "Despite the absence of prosecutions," Kennedy continued, "there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices."
Lawrence also overturned a Texas State Court of Appeals ruling holding that the sodomy law did not violate due process, under the guidance of Bowers.
Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas opposed the majority, but only Scalia wrote a full dissent. He said he had no objection to homosexuals "or any other group promoting their agenda through normal democratic means…But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require [emphasis in the original] a State to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so."
"If I were a member of the Texas Legislature, I would vote to repeal (the Texas sodomy law)," wrote Thomas in a two-paragraph assent to Scalia's dissent. "Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources…(But) I recognize that as a member of this Court I am not empowered to help (Lawrence and Garson) and others similarly situated."
