The petitioners, two men in Texas, were charged and convicted for having a sexual intercourse at their private residence, the conduct that the State of Texas explicitly prohibits. The petitioners were adults at the time of the alleged offense.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.
In Texas, police officers entered a private residence in response to a reported weapons disturbance. When they entered the room, they observed two men engaging in a sexual act. The two men were arrested and convicted of the deviate sexual intercourse. The Texas law provide that a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.
Does the Texas statute that makes it a crime for same sex couple to engage in certain intimate sexual conduct violate the Constitution?
Yes, the Texas statute that makes it a crime for same sex couple to engage in certain intimate sexual conduct violates the Constitution because the case involves two adult men who 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.
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.
While the majority’s ruling that Texas’ statute banning same-sex sodomy is unconstitutional is right, that ruling should have been based on the Fourteenth Amendment’s Equal Protection Clause, not Due Process Clause. The proper question is whether under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify a statute that bans homosexual sodomy. However, moral disapproval is not 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. While this Court in Bowers held otherwise, the doctrine of state decisis is not an inexorable command even if the doctrine of stare decisis is essential to the respect accorded to the judgments of the Court.