BY ADEYEMI OSHUNRINADE

Liberty protects us from unwanted government interference into our homes; it is proper to say whatever we do in the confine of our homes is not a business of the state or a matter to be subject to state interference. Likewise, there are some other aspects of our lives outside the home where the state may not exercise its presence or subject to review. Liberty is a declaration of self liberation, an exercise of self autonomy which includes the freedom of thought, expression, belief and right to private sexual conducts exercised in the privacy of the home.

We cherish our freedom and appreciate its separation from state’s scrutiny but sometimes, there are instances where the state may try to exercise its power blindly and beyond that granted by the constitution, such that it infringes on the personal and fundamental rights of the individual, a violation of the Due Process and the right to Equal Protection granted by the Fourteenth Amendment.

The question is can the state make it a crime for two persons of the same sex to engage in certain intimate conduct, done in the privacy of their home? The answer to the question was given in Lawrence v. Texas, where Texas police officers were dispatched to a private home in response to a reported weapon disturbance. On arrival to the home, they entered an apartment where they found John Geddes Lawrence and another man Tyron Garner, engaging in a sexual act; both were arrested, held in custody, charged and convicted before a Justice of the Peace.

Their crime based on the complaints was that both were involved in a “deviant sexual intercourse … with another individual of the same sex.” To see how the Texas statute in question defined “deviant sexual intercourse,” see Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L.Ed.2d. 508 (2003); I have decided to exclude it here due to the sexual contents as stated in the statute.

Lawrence and his partner challenged the statute in Harris County Criminal Court, as a violation of Equal Protection Clause of the Fourteenth Amendment and other like provision of the Texas Constitution. Their arguments were rejected and after a plea, both were fined $200 and assessed court costs of $141.25. They appealed their case to the Texas Court of Appeals for the Fourteenth District and again challenged the statute on Equal Protection and Due Process Clause of the Fourteenth Amendment.

After the hearing, the court rejected the constitutional argument and affirmed the convictions based on the decision in Bowers v. Hardwick, 478 U.S. 186 (1986); on appeal to the Supreme Court, the court was asked to answer whether: the conviction under Texas “Homosexual Conduct” law that criminalizes sexual conduct between same-sex couples but not criminalize same behavior by “different-sex” couples, violate the Fourteenth Amendment guarantees of Equal Protection of laws;? Whether the conviction for adult consensual sexual intimacy in the home, violate their rights to liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment; and finally, whether Bowers v. Hardwick, should be overturned?

Bowers v. Hardwick is a case where one was charged with violating Georgia’s statute criminalizing sodomy by committing the act with another male in the bedroom of defendant’s home. (See Bowers v. Hardwick for more).

In Lawrence, the court stated that both petitioners were adults, that their conduct was consensual and in the privacy of their home and therefore, should be resolved by determining whether both were free as adults to engage in the private conduct as part of their liberty right under the Due Process Clause of the Fourteenth Amendment. Based on the inquiry, the court decided it was necessary to reconsider the ruling in Bowers.

In its opinion, the court referenced to the decision in Griswold v. Connecticut, where it was established that “the right to make certain decisions regarding sexual conduct extends beyond the marital relationship.” Likewise, in Eisenstadt v. Baird, the court invalidated the law against distribution of contraceptives to unmarried couples; both decisions were based on Equal Protection Clause of the Fourteenth Amendment, but with regard to unmarried persons, the court concluded the law “impaired the exercise of their personal rights.” Both decisions would later form the background for the decision in Roe v. Wade, involving a challenge to state statutes prohibiting abortion.

The court reiterated that the law involved in Bowers and the Lawrence case, are statutes that do no more than prohibit a particular sexual act; however, their penalties and purposes have far-reaching consequences, as it touches upon private human conduct, sexual behavior done in the most private of all places the confine of a home. Therefore, the statutes do seek to control personal relationship that is within the liberty of persons to choose without fear of prosecution. The court acknowledged adults may choose to engage in such relationship in the privacy of their homes and still retain their dignity as free individuals. “The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

In overruling Bowers, the court stated that Lawrence is not a case involving minors but adults; “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 is not a conduct carried out in the public or involving prostitution, it is rather between adults who have entered into consensual sexual practices common to a homosexual lifestyle, and therefore, are entitled to respect for their private lives.

In its conclusion, the court stressed the fact that 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.” The right to liberty under the Due Process Clause gives petitioners the full right to engage in their conduct without intervention by the state and as a result, the Texas statute “furthers no legitimate state interest,” that justifies its interference with personal and private life of persons.

The point is while the state may regulate certain aspects of our lives, we do retain our right to liberty and privacy; it is fundamental, a right to be left alone; and as a result, it is beyond state’s power to exercise dominance or attempt to interfere with our personal lives most especially those involving the most private conducts done in our homes.

Dr. Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests’ and ‘Constitutional Law-First Amendment; follow on Twitter @san0670.

Categories: Constitutional Law

Tags: Bowers v. Hardwick, Eisenstadt v. Baird, Equal Protection Clause, Fundamental Rights, Griswood v. Connecticut, Homosexual conduct and Equal Protection, Homosexuality and Liberty, John Geddes Lawrence, Lawrence v. Texas, Liberty Rights, Privacy Rights, Right to Liberty and the Due Process, Supreme Court on Right to Privacy, Tyron Garner