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PaperclipPerfector  11mo ago (text post)   27019 thread views

Culture War Roundup for the week of April 22, 2024

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Texas' law was somewhat unusual in that it had originally had prohibited heterosexual sodomy, but had been revamped, possibly by accident, such that only same-sex sodomy was actually punishable. Anal sex, among other things, was defined as "deviate sexual intercourse" regardless of who did it with whom, but it was only an offense if done with "another individual of the same sex".

((It also restricted homosexual oral sex, and possibly using a dildo or a sounding rod on someone else, though I've not seen any evidence of it actually being used in this way.))

And O'Connor's concurrence pushed on this hard: she held that it mattered that the state was expressed moral disapproval not of an act, but of an act being done by a group:

This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

(emphasis added)

But only O'Connor signed onto that concurrence, which even at the time came across as a nitpick. The majority opinion, which received five votes but not O'Connors, didn't rest on it being a status-based offense, in no small part because the courts were still trying avoid committing to treating homosexuality as a special status, with even status-based SCOTUS matters like Romer hiding behind rational basis. Lawrence argued certain types of 'intimate contact' outside the scope of the general police power, so it invalidated not just bans on (consensual private non-commercial adult) sodomy, but also a wide variety of other private behaviors.

The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.

In theory. Like a lot of that era of SCOTUS jurisprudence, there's a decent chance that these lofty principles get smothered under balancing tests. It's not clear how this applies to situations like extreme BDSM; so far, the only relevant cases have generally alleged consent violations, sometimes pretty credibly. But where courts have had cause to evaluate restrictions under the assumption they would be applied in a consenting framework, they often do so by reframing Lawrence post-hoc, generally by promoting the O'Connor concurrence:

Under the Lawrence methodology, history and tradition continue to inform the analysis. See id. at 2598 (“History and tradition guide and discipline [the implied fundamental liberty interests] inquiry but do not set 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 reached here under the Glucksberg line of reasoning 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.

((Probably not helped by the guy in that case probably being a douchebag.))

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