118 CHAPTER 4|CIVIL LIBERTIES
through this procedure.^100 Only three states have such a law, and it has been highly
controversial; Attorney General John Ashcroft attempted to revoke the medical
licenses of doctors who prescribed the drugs. According to Ashcroft’s interpreta-
tion of the federal Controlled Substances Act, use of prescription drugs in doctor-
assisted suicide is not a “legitimate medical purpose” of the drugs and therefore
is not allowed under the law. However, the Supreme Court upheld the Oregon law
in 2006.^101Gay Rights
Gay rights have typically been seen more as a civil right (that is, freedom from
discrimination) than a civil liberty. However, a recent Court ruling established
very broad privacy rights for sexual behavior. The case involved two Houston
men who were prosecuted for same-sex sodomy after police entered one of the
men’s apartments—upon receiving a false tip about an armed man in an apart-
ment complex—and found the two having sex. Under Texas law, sodomy was ille-
gal for homosexuals but not for heterosexuals. In a landmark ruling the 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.”^102
The reasoning in this case is rooted in the substantive due process doc-
trine that underlies the constitutional protections for birth control, abortion, and
decisions about how to raise one’s children. Five members of the majority signed
on to 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 unconsti-
tutional but on narrower grounds. With the broader due process logic, 13 state laws
that banned sodomy were struck down.substantive due process
doctrine One interpretation
of the due process clause of the
Fourteenth Amendment; in this view
the Supreme Court has the power
to overturn laws that infringe on
individual liberties.
OPPONENTS OF THE MILITARY’S “DON’T
ask, don’t tell” policy argued
that it infringed on the rights and
liberties of gay and lesbian service
members, in part because they
could be dismissed based on their
private sexual behavior. The policy
was repealed in 2011.