Picking Up Where Lawrence Left Off

If this news account is accurate, the facts seem remarkably similar to those in the 2003 Lawrence v. Texas case. Police respond to a complaint, enter a private residence, find an adult couple engaged in an act of consensual sex, then arrest them because the sex act they were performing is prohibited by state law.

In Lawrence, the U.S. Supreme Court struck down all state anti-sodomy statutes. The Court's opinion, written by Justice Kennedy, held that such laws were unconstitutional under the due process clause of the 14th Amendment. (In a concurring opinion, Justice O'Connor reached the same conclusion by applying the 14th Amendment's equal protection clause.)

In light of Lawrence, it will be very interesting if this happens to wind up in the federal courts.

As Justice Scalia said in his Lawrence dissent:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers [reference to Bowers v. Hardwick, 1986] held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.