The petitioners, two adult males, were arrested and convicted when the police saw them engaging in a private, consensual sexual act.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.
The Texas statute that makes it a crime for two persons of the same sex to engage in certain intimate sexual conduct valid. Houston police, entered petitioner’s apartment and saw him and another adult man engaging in a private, consensual sexual act. The police arrested them and a court convicted them of deviate sexual intercourse in violation of the Texas statute. The petitioners were adults at the time of the alleged offense.
Is the Texas statute that makes it a crime for two persons of the same sex to engage in certain intimate sexual conduct valid?
No, the two adults’ right to liberty under the Due Process Clause of the Fourteenth Amendment gives them full right to engage in their conduct – sexual conduct – without intervention of the government. The Constitution promises that there is a realm of personal liberty which the government may not enter. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Therefore, the statute is unconstitutional.
There is no right to liberty under the Due Process Clause of the Fourteenth Amendment, though the majority repeatedly makes that claim. The Fourteenth Amendment expressly allows States to deprive their citizens of liberty so long as due process of law is provided. Only fundamental rights that receive heightened scrutiny protection are rights that are deeply rooted in this in this Nation’s history and tradition. However, homosexual sodomy is not a right deeply rooted in our Nation’s history and tradition.
Rather than relying on the substantive component of the Due Process Clause, the Court should rely on the Equal Protection Clause. That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would fail under rational basis review. Texas could not assert any legitimate state interests and thus the the statute violates under the Equal Protection Clause.
The right to liberty under the Due Process Clause of the Fourteenth Amendment gives adult men full right to engage in their conduct without intervention of the government. The Constitution protects the personal liberty of individuals against the government intrusion. The State of Texas has failed to show any legitimate state interest that can justify its intrusion into the personal and private life of individuals. Moreover, the present case does not involve minors. 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. The case involves 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. The 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. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.