In Re P.
LET THE 14-YEAR OLD GO,
THE PROSTITUTION LAWS ARE UNCONSTITUTIONAL
|The text below is an edited version of
In re P, 400 N.Y.S.2d 455 (1977). It does not represent the law of the land in New York, but is reproduced here for its exploration of the connection between prostitution,
equal protection, privacy
rights and consensual sodomy,
and the community's health and morality.
Justice Ethics, this article appears with readings from feminist legal
scholar MacKinnon and the International Committee for Prostitutes'
Rights World Charter & World Whores' Congress Statements. (This edited version retains original footnote numbers.)
See also main prostitution page.
More info on LAWRENCE V. TEXAS (2003 Texas
sodomy law struck down by court)
MARGARET TAYLOR, JUDGE: Respondent P. is a 14 year old female. The petition alleges that "Respondent did offer to perform a deviate sexual act for U.S. currency," an act which, if committed by an adult, would constitute the crime of prostitution.
The Bill of Particulars of the Corporation Counsel describes the incident as follows:
"On March 6,1977, at about 8:30 P.M., respondent accosted complaining witness on the street and offered to engage in sexual acts with him for a fee of $10; he agreed and respondent took him to the Evans Hotel. Complaining witness paid $4 for the use of a room and went there with respondent."
It should be noted that the complaining witness was not charged with the violation of patronizing a prostitute. Nor was he charged with any other crime applicable to these facts.
A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. A deviate sexual act is defined by the Penal Law as:
"Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the
Deviate sexual intercourse, also a Class B misdemeanor, is a crime under the Penal Law:
Consensual Sodomy: A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person.
The threshold question in all juvenile delinquency proceedings is not whether a respondent committed a particular act but whether such an act would be a crime if committed by an adult. If not, then the court can go no further and must dismiss the petition. Accordingly,
if acts committed by an adult would not constitute a crime because the criminal statute or statutes making such alleged acts a crime were unconstitutional, such acts could not be the basis for a charge of juvenile delinquency. A youth under the age of 16 may be found to be a juvenile delinquent only if an adult who engaged in the same conduct as the youth could be found to have committed a crime. If a statute is unconstitutional as applied to adults, a statute is unconstitutional as applied to juveniles.
Inasmuch as the petition alleges that the respondent offered to perform an act of consensual sodomy for a fee, the charges brought against respondent necessarily invoke the prostitution statute and the consensual sodomy law. Respondent is specifically charged with offering to perform a "deviate" sexual act for a fee. If she had been charged with offering to perform a "normal" sexual act (i.e. fornication) for a fee, it would have been necessary for the court to deal with the question of whether a crime can be committed by offering to perform a sexual act, which in and of itself is not illegal, for money. Here, however, respondent is charged with offering to perform an act which in and of itself is prescribed by a criminal statute, the consensual sodomy law. It is necessary, therefore, for the court to examine those sections of the Penal Law and make a determination as to their constitutionality.
Respondent, by her attorney, has moved to dismiss the prostitution charge on constitutional and other grounds. For the reasons stated below, the court holds that sections 230.00, 130.38 and 130.00(2) of the Penal Law are unconstitutional under the New York State Constitution in that these statutes constitute a denial of equal protection and invade respondent's constitutionally protected right of privacy.
subheading is not part of the original case, but added here to help internet readers.
The equal protection clause is offended when the state discriminates between classes of citizens similarly situated on arbitrary and unreasonable grounds not related to the objective of the legislation. The selective enforcement of a law against a particular class of individuals on the basis of sex is no less offensive to the equal protection clause than classification by sex on the face of the statute.
Until 1964, a prostitute was defined as a "female person." The legislature amended the penal law to make the prostitution statute sex neutral in its wording and it enacted a statute proscribing the act of patronizing a prostitute. Although the prostitution laws were made facially sex neutral, their historical sex bias has endured.
A person may be found guilty of prostitution for simply "agreeing" to perform a sexual act, even if the patron is the solicitor. In contrast, patronizing a prostitute is merely a violation carrying a penalty of up to fifteen days imprisonment or up to $250 fine. The conduct engaged in by the prostitute and the patron is nearly identical and the wording of the respective statutes is quite similar.
The instant case presents clear evidence of intentional selective enforcement of the prostitution statutes against females. The over whelming majority of arrests made under section 230.00 of the Penal Law are of female prostitutes. During the first six months of 1977, 3219 arrests were made in New York County under this statute. Of those arrested, 2,944 were females and only 275 were males. Of the 2,944 female prostitutes arrested, only 60 of their male patrons were charged with a violation. This data supports the conclusion that those assigned the task of enforcing the law harbor the attitude that women who supply sex are immoral whereas the men who demand their services are considered blameless.
The methods of enforcement used by the police contribute to the selective enforcement of the prostitution laws against females. Arrests for prostitution are rarely made on the complaint of a private citizen. A police officer must be directly solicited to make an arrest. Male undercover police officers are assigned to pose as patrons to entrap streetwalkers. However, female plainclothes officers are not presently assigned to pose as prostitutes to entrap male patrons. Thus, the method of enforcement of the prostitution laws is sex biased, aimed only punishing the female prostitute.
The prostitution statutes [thus] violate the equal protection clause. There is no, nor has the Corporation Counsel suggested any, reasonable justification for penalizing the conduct of female prostitutes more severely than the conduct of their male patrons.
[Note 10] The prostitution laws have undeniably been selectively enforced against females because of their sex. Discrimination by the state between different classes of citizens,
“must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”
This court can find no real difference between the conduct of the prostitute and the Patron. The patron pays and the prostitute receives compensation for her services. Yet, under the wording of the statute and frequently in practice, the patron may be the solicitor.
As a court of this state observed over 50 years ago:
“The men create the market; and the women who supply the demand pay the penalty. It is time that this unfair
discrimination and injustice should cease… The practical application of the law as heretofore enforced is an unjust discrimination against women in the matter of an offense, which in its very nature, if completed, requires the participation of men.”
To the extent prostitution may cause a public nuisance by reason of offensive conduct on the streets or congested traffic, the nuisance is caused by the prostitute and patron alike.
subheading is not part of the original case, but added here to help internet readers.
The respondent is charged with offering to perform a “deviate” sexual act for a fee.
It is necessary, therefore, for to examine sections 130.38 and 130.00(2) of the Penal Law and make a determination as to their constitutionality.
The Penal Law only makes unlawful acts of "deviate" sexual intercourse performed by unmarried persons, whether of the opposite or same sex Thus, the consensual sodomy statute
creates a distinction between the private consensual sexual conduct of married and unmarried persons.
As will appear more fully below, the private consensual sexual relations of married and unmarried persons involve a fundamental right of privacy protected by the New York State Constitution. The right of privacy does not attach to the marital relationship but to the individuals involved.
Since a fundamental interest involving life or liberty is involved in this challenge to the constitutionality of the consensual sodomy statute, this court will carefully examine the state interests claimed to be protected by the crimination of consensual sodomy between unmarried adults. The court will not accept mere claims that "deviate" sexual intercourse is harmful and, therefore, is properly proscribed by a state statute. On the contrary, it must be demonstrated that consensual sodomy in fact harms the public health, safety or welfare.
It cannot be said that acts of deviate sexual intercourse are, in and of themselves, intrinsically harmful or unnatural, causing in the participants any deviation from fundamental human nature
[note 15]. Since 1968, when the consensual sodomy law was amended, married persons in this state have been permitted to engage in "deviate" sexual intercourse without criminal sanction. In these past nine years, no empirical evidence that consensual sodomy is intrinsically harmful has been produced. Such conduct may be freely engaged in by married persons without sanction and is a widely accepted form of sexual expression. In this state, affectional or sexual preference have not been found to be a controlling factor in matters of licensing, citizenship, or admission to the bar.
NOTE 9: In experimental programs in New York City and the District of Columbia, female undercover police officers were as signed to pose as prostitutes to entrap patrons. White, married, middle class and middle aged men were arrested. The public uproar of "respectable" citizens that ensued in response to these arrests caused the end of these experiments. See NY Times. Nov. 16, 1977, at p. D17, col. 5.
This commonplace selective enforcement tactic designed to punish the female streetwalker and leave unscathed her white, middle aged, middle class married male client (Politics of Prostitution supra at 52-3; Cooney & Quint. Prostitution in New York City; Answers to Some Questions, para. 3 (June,
1977) is a very costly law enforcement practice. It violates the streetwalker's right to equal protection of the law. Moreover, community support for law enforcement is eroded when the streetwalker is repeatedly arrested while patrons, pimps, hotel owners and landlords go free. The court acknowledges the community concern over the street activity connected with prostitution. But inasmuch as it is the patron who is most sensitive to arrest and who is most likely to be deterred from engaging in allegedly disruptive public conduct, non-discriminatory enforcement of the prostitution laws against all participants—patrons, landlords, pimps, hotel owners and prostitutes alike—could resolve the constitutional infirmity and have a significant impact upon the street problems associated with prostitution.
NOTE 10: Unofficial sources report that the vast number of prostitutes arrested under Penal Law section 230.00 (and related statutes) are nonwhite streetwalkers. Their customers are predominately white males. Thus, it appears that Penal Law section 230.00 works an invidious racial discrimination.
To borrow a succinctly worded observation from the court of
"The conclusion seems
inescapable that lurking behind the discrimination is the imputation
that females who engage in misconduct, sexual or otherwise, ought more
to be censured, and their conduct subject to greater control and
regulation, than males Somewhat similar moral presumptions have been
squarely rejected as a basis or excuse for sexually discriminatory
Numerous commentators share the Court
of Appeals' perspective that underlying the extremely harsh treatment
meted out to females engaging in sexual 'mis'-conduct or commercial sex
are archaic notions that a woman's place is in the narrowly
circumscribed, non-public world. When females wander out of this
protective sphere into the public they 'get what they deserve'. Or to
state the same idea more pointedly, that females are chattel, the
property of one male, and therefore, have no right to be promiscuous, to
self determine to whom and when they shall bestow their 'sexual favors'.
See e.g. Wilkinson & White, Constitutional Protection for
Personal Lifestyles 62 Cornell 563 (1976-7); Rosenbleet &
Pariente, The Prostitution of the Criminal Law, 11 American Crim L
Rev 373 (1973).
NOTE 15: In
1973, the Board of trustees of the American Psychiatric Association (A.P.A)
decided to remove homosexuality from the list of mental diseases. This
action met with the approval of the APA membership in 1974. Studies
indicate that most unmarried persons engage in the sexual conduct
characterized as deviate sexual intercourse. Of unmarried heterosexual
persons between 18 and 24 years old, 72% of those studied performed
fellatio and 69% performed cunnilingus. One-sixth of all persons under
25 who have ever had coitus have engaged in anal intercourse. Studies
also reveal that 20 to 25% of all males over the age of 15 have engaged
in oral or anal sex with another male and 10-20% of all females over 19
have engaged in oral sex with another female.
Since it cannot be demonstrated that there is anything intrinsically harmful in acts of consensual sodomy between unmarried adults, can Penal Law section 130.38 be legitimated as a mode of protecting the stability of marriage and the family? There is no empirical evidence that so-called "deviate" sex, an activity that has been engaged in for centuries has been a factor of any significance affecting the stability of marriage and the family. On the contrary, in the 17 states where consensual sodomy has been decriminalized, and the 100 nations that permit consensual sodomy, cooperative social institutions like the family remain stable.
The court has searched for, but cannot find, a proper governmental objective served by the
legislature in distinguishing between the marital status of persons engaging in so-called "deviate" sexual intercourse. Completely lacking is any evidence that the conduct proscribed is
more harmful to unmarried participants or that such conduct between unmarried persons is
more harmful to the public.
If the consensual sodomy law was designed to prevent sexual relations between unmarried people, then "normal"
sexual relations between the unmarried would also be sanctioned by the
Criminal Law. Fornication, however, is not a crime in this state. If the purpose of the law is to promote conventional sex it also fails in its objective since married persons are permitted to engage in unconventional or "deviate" sexual conduct. Thus, if morality vis a vis sexual norms or the promotion of marriage are the objectives of the legislation, there is no rational let alone substantial relationship between the law itself and these legislative ends. There is no logical or factual basis on which the marital status of the participants should be decisive as to whether a mode of sexual conduct is legal or criminal. Since the classification created by section 130.38 of the Penal Law and section 130.00(2) as incorporated therein has no rational basis, the criminalization of "deviate" sexual intercourse between persons who are not married to each other is an
unconstitutional denial of equal protection of the laws.
As the framers of the Federal and New York State Constitutions realized, a tension exists between the rights and powers of the government as opposed to those rights reserved to the people. As the Supreme Court observed nearly a century ago:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference from others, unless by clear and unquestionable authority of law.
It is the Bill of Rights that stands between the will of the majority and the individual. It declares that except in the direct pursuit of protecting the public health, safety or morals, the State may not interfere with the individual's right of self expression. As numerous commentators have noted, the right of privacy found in the Bill of Rights has, as its underpinnings, the concept that affording the maximum amount of opportunity for individual choice maximizes the ability of each person for self development.
Running counter to the majoritarian tide of laws is the Bill of Rights' protection of diversity and guarantee of opportunity for the disadvantaged, who are unable to gain redress through the political process, to gain expression of and protection for their views in the courts.
The Supreme Court only recently recognized in the Bill of Rights a right of privacy. But the parameters of this right are quickly being revealed. The right of privacy encompasses not just sexual conduct in the marital relationship but is broad in scope, including in its protection each individual's decision as to whether, when and in what manner he or she will engage in private intimate relations. The mantle of constitutional protection surrounding personal intimacy is not, therefore, limited to married persons. It attaches to the individual not the relationship, and protects the individual's right to engage in non-procreative recreational sex.
subheading is not part of the original case, but added here to help internet readers.
This court states at the outset the premise that private, intimate, consensual sexual conduct not harmful to others, even if it violates the personal moral code of many, does not violate public morality and is protected by the right of privacy. In determining whether the state has a legitimate interest in proscribing private consensual sexual conduct, "deviate" or "normal", the following questions must be dealt with:
What harm does such conduct pose to the public health, safety or morals?
Is there harm in fact? Can harm actually or empirically be shown?
Is the harm caused in fact by the proscribed conduct?
Is the legislation reasonably related to the state's legitimate objective or is the relationship between the protectible public interest and the proscribed conduct too attenuated?
This court will not accept at face value bald claims of harm to the public health, safety and morals, but will closely examine the reasonableness of the state objectives proffered by the Corporation Counsel.
In discussing above the equal protection challenge to the consensual sodomy statutes, this court discussed the harms to the public health, safety or welfare allegedly caused by "deviate" sexual intercourse. Assertions that "deviate" sexual intercourse is intrinsically harmful to the participants or that it has a deleterious effect on the moral fibre of the community by undermining the stability of marriage and the family were each shown to be unsubstantiated. Although other courts argue that the Bible prohibits "deviate" sexual conduct and therefore, such conduct is immoral, it is this court's view that absent empirical evidence demonstrating that private, consensual "deviate" sexual acts cause harm in fact to the public health, safety or welfare the state may not legitimately proscribe such conduct. Since there is no proof that public harm is caused by consensual sodomy, the government may not intrude in private, personal decisions regarding sexual preference.
Since there is no legitimate basis for governmental interference in private, consensual sodomy, the balance of this opinion will deal with the remaining question of whether the state may legitimately proscribe commercial, recreational sex.
It is claimed that prostitution is indeed harmful in that it spreads disease, leads to ancillary criminal conduct, encourages criminal organization and generally may be characterized as anti-social behavior both offensive and injurious to the community.
It is urged that prostitution spreads venereal disease. Without question, venereal disease is a serious threat to public health and it has apparently now reached epidemic proportions. However, all empirical data supports the conclusion of Dr. Charles Winnick of the City University, President of the American Social Health Association, that "[T]he amount of venereal disease attributable to prostitution is remaining fairly constant at a little under 5%, which is a negligible proportion compared to the amount of venereal disease we now have." The state may have a legitimate interest in seeking to eradicate even this small incidence of disease, but the attenuated relationship between prostitution and venereal disease emphasizes that it would be unreasonable to prohibit all prostitution for the sake of eradicating 5% of the "VD" health hazard.
It is also claimed that prostitution leads to other crimes. Indeed, in this case respondent is also charged with acts which could constitute robbery and assault in the second degree if committed by an adult. Nonetheless, the Corporation Counsel has not come forward with any empirical evidence substantiating that prostitution is the cause-in-fact of ancillary crime. Indeed, it has been concluded by numerous social scientists that crimes ancillary to prostitution are a by-product of the environment to which society consigns prostitution.
“The effects of the enforcement procedures on the prostitute clearly are negative. Jail is not a deterrent. It often encourages criminal conduct. Incarceration contributes little to rehabilitation while teaching the prostitute about genuine criminal activity. She learns that other more serious crimes may pay better; she begins to view herself as a criminal. Attaching the label "criminal" to prostitution and imposing heavy sentences blur the distinction between offering service and committing a theft.”
Because prostitution and patronizing a prostitute are criminally sanctioned, prostitutes and their patrons alike fear reporting ancillary crimes for fear of prosecution. Moreover, 70% of the women in prison for felonies were first arrested for prostitution. Thus, there is a clear inference that it is the criminalization of prostitution and not prostitution itself that leads to ancillary crime.
This court knows of no study that has substantiated the allegation that sex for money in fact causes ancillary crime. Nor has the Corporation Counsel shed any light on this subject. Due process requires that a law be reasonably related and applied to some actual or manifest evil: it must have as its objective the eradication of harm in fact caused by the proscribed conduct. The constitution limits the extent to which the state can proscribe prostitution with the purpose of eradicating an entirely distinct, severable kind of conduct. The state must proceed against ancillary crimes directly by enforcing the specific sanctions against such conduct and may not rely on the blunderbuss approach of incarcerating all prostitutes.
Another type of harm attributed to prostitution is that it injures the community. Underlying this claim are the allegations that commercial sex undermines the stability of the family and is simply immoral. The law may seek to legislate morality, but it must do so without offending the constitutional protections of the due process clause and the right of privacy.
The Penal Law should act to deprive an individual of liberty only when a real and demonstrable harm to the public can result from the proscribed conduct. The state cannot rely upon the bare assertion of immorality to justify a criminal prohibition. Attempts by the state to regulate lifestyle choices on the bare assertion that the regulation serves morality is impermissible. Conduct that does not interfere with the rights and interests of others may not be regulated by the state.
Preventing harm to what is believed by many to be the central institution for social cooperation, the family, may well be a legitimate objective of the state. Most male patrons of prostitutes are married. And it is the patron who creates the demand for the services of prostitutes. Thus, if the marital contract is breached by promiscuity or the family undermined by extra-marital sexual relations, the burden of responsibility lies with the patron, not the prostitute. Yet, the penal law punishes the prostitute most severely. If the state's objective is to promote the stability of the family and commercial sex has a direct impact upon the family, then the law should focus on the
conduct of the patron. However, it has never been demonstrated that commercial sex has
had any effect on the stability of marriage or the family. Indeed, although prostitution has been practiced for centuries, disruption of the family has never been causally related to prostitution.
Several states and numerous foreign nations have decriminalized prostitution without any indication of a concomitant decline in the vitality of the marital or family institution. The decriminalization of fornication in this state has not led to any reported damage to the
family. This court can find no reason why commercial fornication should have a less innocuous effect on these social institutions. Thus, there is no empirical connection between prostitution, whether involving ordinary or deviate sexual intercourse, and the stability of the family. Therefore, the state cannot reasonably assert protection of marriage and the family as legitimate objectives for its regulation of prostitution.
Sex for a fee is recreational, not procreational sex. Typically, it is the female participant who receives the fee. The arguments that prostitution harms the public health, safety or welfare do not withstand constitutional scrutiny. It may be that it is the fact that a woman is accepting a fee for recreational, sexual services that triggers the governmental intrusion upon this private consensual sexual conduct. If it is paternalism that prompts the legislature to protect women by proscribing prostitution,
[NOTE 26] that motive is ill served by the prostitution laws since women are not protected, but rather are penally punished. Society may find something offensive about having women perform sex for money. However offensive it may be, recreational commercial sex threatens no harm to the public health, safety or welfare and, therefore, may not be proscribed.
Finally, prostitution is said to offend public sensibilities. Individual members of the public may indeed be offended by the public conduct associated with prostitution: they may be solicited on the street by prostitutes, embarrassed by the advances of streetwalkers, or find their path on the sidewalks or thoroughfares blocked. Such conduct may, indeed, be a harm legitimately of interest to the state should it constitute public disorder. This court will not decide the question of who has a right to be on the public streets.
NOTE 26: Paternalism certainly could not be the motive here. Respondent is a 14 year old female. If the motive
were to protect her, she would not be threatened with the loss of her liberty. Paternalism might dictate an Article Ten of the Family Court Act proceeding on her behalf. It clearly would dictate
a charge against the patron, such as endangering the welfare of a minor, attempted statutory rape or criminal solicitation. None of these protective measures were taken in this case.
However, the court will point out that this public conduct is not caused in fact by the act of engaging in sexual relations for a fee. This harm, if any, is caused by the solicitation aspect of prostitution. The public aspect of prostitution, solicitation, must be distinguished from its private aspect, the performance of consensual sexual relations for a fee in private. Street solicitation is a method of advertising the business of commercial sex. It is separable from the underlying activity.
In Nevada and Great Britain, for example, prostitution has been legalized, but street solicitation is proscribed by public order, breach of the peace-type statutes. Advertising is unoffensively and effectively accomplished through the use of discrete newspaper advertisements.
The prohibition of the offensive public conduct associated with the solicitation of prostitution may be a legitimate state objective. Since it has been demonstrated that only this public element of prostitution may make that conduct harmful, and that public conduct may be dealt with separately from the sexual conduct itself, it would be unreasonable for the state to completely proscribe private, sexual conduct in order to reach distinct public solicitation.
Members of the public may have a protectable privacy interest: not to be repeatedly accosted on the streets by a prostitute any more than a religious zealot, peddler, alcoholic or panhandler, and not to have a group of street musicians, noisy teenagers, solicitors for charities, or streetwalkers converging at his or her doorstep These public interests can be protected, but by less intrusive means than those now employed by the state. Private, consensual sexual conduct between adults, whether or not performed for a fee, is protected by the right of privacy. If the state has a legitimate interest in curbing public disorder, it can and must accomplish this objective without depriving the individual of his or her right to engage in private, consensual, sexual relations. The constitutionally protected right of privacy makes it incumbent upon the state to implement its policy by more reasonable, less intrusive means.
For the reasons stated, the sexual conduct charge against respondent is dismissed.
FACTS: Responding to a reported weapons disturbance in a private
residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner,
engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in
violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In
affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process
Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S. 186, controlling on that point.
(In Bowers, the Supreme Court upheld a sodomy law used against
consensual homosexual conduct and playing down the importance of the
privacy right. Thus, in Lawrence, the Court's reasoning on the privacy
right that extends to homosexuality is similar to the discussion in In
re P of how the privacy right extends to heterosexual sodomy in the
context of prostitution.)
Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual
conduct violates the Due Process Clause.
(a) Resolution of this case depends on whether petitioners
were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For
this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive
statement--"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to
engage in sodomy ... ," 478 U.S., at 190--discloses the Court's failure to appreciate the extent of the liberty at stake. To
say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put
forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual
intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act,
their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct,
sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or
not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as
criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon
relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
(b) Having misapprehended the liberty claim presented to
it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U.S., at 192. It should be noted,
however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.
Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual
activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been
enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those
who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between
adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of
homosexual sodomy upon which Bowers placed such reliance is as consistent
with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their
homosexual character. Far from possessing "ancient roots," ibid., American laws targeting same-sex couples did not develop
until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal
prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the
concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are
overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful
voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to
mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850. The Nation's laws and
traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial
protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of
Sacramento v. Lewis, 523 U.S. 833, 857. Pp. 6-12.
(c) Bowers' deficiencies became even more apparent in the
years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to
13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still
proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to
consenting adults acting in private. Casey, supra, at 851--which confirmed that the Due Process Clause protects
personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and
education--and Romer v. Evans, 517 U.S. 620, 624--which struck down class-based legislation directed at homosexuals--cast
Bowers' holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial.
Although the offense is but a minor misdemeanor, it remains a criminal
offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and
on job application forms, and registration as sex offenders under state law. Where a case's foundations have sustained
serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has
been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions.
And, to the extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been
rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the
protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this
country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is
not an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828. Bowers' holding has not induced detrimental reliance of
the sort that could counsel against overturning it once there are compelling reasons to do so. Casey,
supra, at 855-856. Bowers causes uncertainty, for the precedents before and after
it contradict its central holding.
(d) Bowers' rationale does not withstand careful
analysis. In his dissenting opinion in Bowers Justice Stevens
concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies
of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due
process. That analysis should have controlled Bowers, and it controls
here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not
involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or
prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a
homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in
private conduct without government intervention. Casey, supra, at 847.
The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's
personal and private life.
41 S. W. 3d 349, reversed and remanded.
Kennedy, J., delivered the opinion of the
Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor,
J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and
Thomas, J., joined. Thomas, J., filed a dissenting opinion.
See also Is Pornography The Same As Prostitution? A New York Judge Says "No," But the Answer Is Less Clear
Purposes: Marriage and the Genus of Illicit Sex
Yale Law Journal (2006) [full text available free]
prostitution page of CJ Ethics