Unpacking the Confiict 143Gay Rights
Gay rights have typically been thought of more as a civil right (that is, freedom from
discrimination) than a civil liberty, so these issues will be discussed in the next chapter.
However, several important cases involving sexual relations are rooted in privacy
rights. In 1986, the Court had ruled in Bowers v. Hardwick that there was no privacy
protection or fundamental right for consenting adults to engage in homosexual
sodomy.^158 But in 2003, in Lawrence v. Texas, the Court established very broad privacy
rights for sexual behavior. The case involved two Houston men, John Geddes Lawrence
and Tyron Garner, who were prosecuted for same-sex sodomy after police entered
Lawrence’s apartment—upon receiving a false tip about an armed man—and found the
two having sex. Under Texas law, sodomy was illegal for gays but not for heterosexuals.
In a landmark 6–3 ruling, the Supreme Court said that the liberty guaranteed by the
Fourteenth Amendment’s due process clause allows homosexuals to have sexual
relations: “Freedom presumes an autonomy of self that includes freedom of thought,
belief, expression, and certain intimate conduct.”^159 The decision explicitly overturned
Bowers v. Hardwick and five members of the majority signed onto the broad “due
process” reasoning of the decision, while Justice O’Connor wrote a concurring opinion
in which she agreed that the Texas law was unconstitutional but on narrower grounds.
With the broader due process logic, a total of 13 state laws that banned sodomy were
struck down.Tyron Garner and John Geddes
Lawrence after the Supreme Court
decision in Lawrence v. Texas in
2003 established broad privacy
rights for sexual behavior (including
homosexual behavior).“Why
Should
I Care?”
Privacy might not seem important. You may think you’ll never be accused of a crime
or have your privacy invaded or questioned by the government. Indeed, many
people think, “I have nothing to hide, so it is fine if the NSA monitors e-mail and
Internet traffic to keep tabs on suspected terrorists.” What if your e-mail revealed
that you had a serious medical or mental health condition? What if the NSA paid
special attention to you because of tweets you posted criticizing a government
policy? Knowing your rights and how those rights apply to everyone—both criminals
and innocent people—will help you make informed decisions about which policies
to support.Unpacking the Conflict
Considering all that we’ve discussed in this chapter, let’s apply what we know about
how civil liberties work to the example of free speech on college campuses introduced
at the beginning of this chapter. Can controversial speech on college campuses be
limited? How can we explain this conflict?
The question of free speech on campus raises difficult questions of balancing
interests and drawing lines. Speakers’ interests in making their voices and opinions
heard must be balanced against the universities’ interest in public safety and students’
interest in protecting other students from hate speech. The First Amendment is
applicable in these instances because the speakers in question are lecturing at public—
that is, state government—institutions.Full_05_APT_64431_ch04_102-147.indd 143 16/11/18 1:33 PM