A look at Lawrence v. Texas and Doe v. George Mason U
By Richard O. Cunningham, Esq.
NCSF Legal Counsel
In Doe v. George Mason University, the District Court judge’s discussion of BDSM and of Lawrence v. Texas—which is an opinion, not a ruling—is yet another example of how a number of courts have twisted and turned to avoid applying Lawrence to sexual practices of which they morally disapprove. These decisions have involved BDSM, polyamory and even sodomy—which was, of course, the specific practice that was prosecuted in the Lawrence case.
The fact is that Lawrence was explicitly based on a fundamental ruling that applies broadly—but with some ambiguities—to non-injurious, non-commercial sexual conduct. The constitutional right of privacy, the Lawrence court stated, prevents criminalization of intimate sexual practices unless there is a sufficient societal interest that needs protection by a criminal statute. The court went on to hold—and this is the crucial point that the District Court judge ignores in Doe v. George Mason—that moral disapproval is not a sufficient societal interest.
But Lawrence, like most Supreme Court decisions, is a lengthy opinion that contains language which, although it in no way detracts from the basic ruling, can be twisted by the moralists to find ways to continue to prosecute the same sexual acts. Thus courts have misused the Lawrence court’s references to “public sex,” or to the exchange of money, or to physical harm—all to justify the criminalization of “private, consensual conduct,” a criminalization which Lawrence explicitly condemns.
It is important not to oversimplify the issues and frame the debate in a context favorable to the sexual bigots. For our purposes, the question is whether the right to privacy contemplated in Lawrence protects people who engage in BDSM absent non-consent or serious physical injury. We contend that it does. This approach enables us to focus the courts and public opinion on the fact that prosecutions growing out of BDSM conduct—whether for assault or trafficking or other crimes—are based on precisely what the Lawrence court found impermissible—namely, moral disapproval.
The judge in Doe v. George Mason sets up a “straw man” when he states the issue as whether there is a “constitutional right to BDSM.” Lawrence does not specifically mention BDSM, but instead establishes a broad principle that the right of privacy protects “private, consensual conduct” which includes BDSM as certainly as it includes same sex conduct.
It is also important to note that the Lawrence ruling says that conduct may be criminalized if necessary to protect a sufficient societal interest. That is why NCSF argues, and has had success arguing, that only BDSM cases involving serious physical injury warrant criminal prosecution if the activity is consensual. Such an argument is both legally sound and appeals to the public’s sense of fairness and respect for privacy and personal dignity. NCSF is working effectively on this basis with legislators, lawyer groups, prosecutors and others, and is filing amicus briefs in key appeals related to cases involving alternative sexuality practices.
Of course we should continue emphasizing the general principle of Lawrence that a right of privacy protects sexual conduct unless there is a sufficient societal interest to warrant criminalization. But the balance between that right of privacy and the alleged “societal interests” claimed by our opponents to warrant prosecution will differ from one sex practice to another. Thus, for example, this argument will be different for BDSM than for polyamory.
NCSF is making real progress by presenting these issues in the proper way. An over-broad argument that “we can perform any sex acts we want” or that “BDSM is constitutionally protected in any circumstances,” won’t win over the courts or the legislators. And an over-broad strategy plays into the hands of our opponents, who want to portray us as perverts who want no rules in any situation that would prevent people from doing anything they want to do.
This District Court’s decision is nothing new, and there is no need—and a real downside—for focusing our battle on that opinion, incorrect and illogical as it is.