In essence, libertarian philosophy says government's sole legitimate business is to stay the hell out of your business - including your work, your bed, and anything else you do privately - until or unless you obstruct or abrogate someone else's equal rights in the process. That's the principle by which two libertarian organizations - the Cato Institute, a think tank, and the Institute for Justice, a libertarian civil liberties law firm - have urged the Supreme Court to dump Texas's anti-sodomy law.
The high court accepted Lawrence and Garner v. State of Texas in December 2002 and has scheduled arguments for April 1 in a challenge to the law under which John Lawrence and Tyson Garner were arrested in 1998.
The Cato Institute filed an amicus curiae brief with the high court in January. The brief argues the Texas anti-sodomy law violates the Constitution's equal protection guarantees, particularly that of the Fourteenth Amendment. Cato is leaning upon very heavy precedent in its amicus argument - precedent tracing back to American colonial thought as well as the thinking behind the writing of the Constitution itself.
For the Institute of Justice, Lawrence isn't just about homosexuality. "If the government can regulate private sexual behavior, it's hard to imagine what the government couldn't regulate," attorney Dana Berliner told The New York Times. "That's almost so basic that it's easy to miss the forest for the trees."
Writing Cato's amicus brief, Cato's Robert Levy and Yale University law professor William Eskridge argued that Lawrence and Garner enjoyed implicit immunities in their private conduct that traced back to the Blackstone philosophies of liberties, privileges, and immunities on which America's colonists ultimately based their battle for independence ... and on which the framers of the U.S. Constitution based much of their own political thinking.
"Blackstone's central theme was that Englishmen enjoyed natural rights to deploy their bodies and inhabit their properties, without state intrusion, so long as they were not themselves intruding upon the natural rights of third parties," Levy and Eskridge argued. "These Blackstonian 'immunities' would be directly applicable to John Lawrence and Tyron Garner: The state has no business intruding into Lawrence's private property and snooping into their private pursuit of happiness."
Lawrence and Garner were arrested in Lawrence's Houston home after police found them having sex while officers responded to an armed robbery report. The report turned out to be false, and some have suggested the false report may have been made deliberately in a bid to get Lawrence arrested for engaging in gay sex.
The day after the Supreme Court agreed to take Lawrence, Texas Gov. Rick Perry defended the anti-sodomy statute as "appropriate [to] have on our books."
Cato Vice President for Legal Affairs Roger Pilon said in a March 19 statement that the think tank's amicus brief goes further than just trying to stop enforcement of the Texas law. Cato is gunning for the Rehnquist Court to shoot down the predecessor Burger Court's 1986 ruling upholding a Georgia sodomy law that applies to hetero- and homosexual activity, in hand with stopping Lawrence. The Court agreed to consider whether to overturn that ruling when it accepted Lawrence.
"That decision is flatly inconsistent with the Court's due process decision a decade later in Romer v. Evans," Pilon said of 1986's Bowers v. Hardwick.
"[W]e [are not] inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause," wrote then-Justice Byron White for the Burger Court's 5-4 Bowers majority. "The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution....
"[I]f all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed," White continued. "Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis."
In Romer, in 1996, the Supremes struck down a Colorado law blocking special privileges for homosexuals. The Court ruled the law went too far in separating them from unbiased protection under state law. "It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit, " Justice Anthony Kennedy wrote for the majority.
"By singling out only homosexual sodomy," Pilon said, "the Texas law is in clear violation of the Equal Protection Clause. But our brief goes further in asking the Court to overturn Bowers v. Hardwick."
The Institute for Justice's amicus brief argues the Texas case is about how far government can or cannot go in general, not just regarding homosexuality or its behaviors. Written by Boston University law professor Randy E. Barnett and four Institute for Justice attorneys - Berliner, Clint Bolick, Robert Freedman, and William H. Mellor - the brief saysTexas' law "exceeds the police power."
"[We] urge this Court to ask not whether the defendants had the right to engage in their specific sexual activity, but instead whether the government has the power to prohibit it," the brief continues. "We suggest that even before analyzing state action under one of the constitutional amendments, the Court first ask whether the contested government action falls within the police power.... The primary purpose of police power regulation is to protect individuals from harm. Even the government's purported interest in protecting public morality does not extend government power into the realm of private moral conduct."
Lawrence's political interest may not be for libertarians alone. A group called the Republican Unity Coalition - including former U.S. Sen. Alan Simpson (R-Wyoming) as well as other conservative and liberal Republicans - also filed a brief against the Texas law. "We want gay Americans to be treated like all other Americans, subject to neither special preferences nor special disabilities," the RUC brief argues. "This case is not about the expansion of special rights or entitlements. Rather, it is about the unabashedly conservative commitment to our society’s fundamental value of equality befor e the law as enshrined in our Constitution."
