This is the third of seven introductory articles on the relevance for constitutional law of the “born free and equal” clauses, which appeared in the Declaration of Independence and in six out of 12 state constitutions when the federal Bill of Rights was ratified in 1791, and in 24 out of 37 state constitutions when the 14th Amendment was ratified in 1868. The “born free and equal” clause of the Massachusetts Constitution of 1780, for example, provided that:
Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
In my first two articles, I showed that the “born free and equal” idea is deeply rooted in American history and tradition as that phrase is used in such correctly decided cases as Washington v. Glucksberg (the right to assisted suicide is not deeply rooted in American history and tradition), McDonald v. City of Chicago (the Second Amendment’s right to own a handgun for self-protection extends to the states because it is deeply rooted in American history and tradition), and Dobbs v. Jackson Women’s Health Organization (the right to an abortion is not deeply rooted in American history and tradition).
In this third introductory article, I want to examine the application of the “born free and equal” clauses to another famous “right to privacy” case: 2003’s Lawrence v. Texas, which struck down so-called “sodomy” laws banning oral and anal sex as unconstitutional. In my last article, I explained why: 1) there is no such thing as a constitutional “right to privacy” of the kind found incorrectly in Roe v. Wade, yet 2) why the outcome in Griswold v. Connecticut, the pivotal 1965 case striking down laws banning the use of contraceptives, is nonetheless correct under the privileges or immunities clause, which applied the “born and free and equal” clauses as modified by Corfield v. Coryell (discussed below) to the states. I’ll apply this analysis to Lawrence v. Texas to explain why I think that case was rightly decided but not for the reasons given by Justice Anthony Kennedy in his opinion for the court.
***
To back up a bit, the seminal case of Corfield v. Coryell, decided in 1823, was dispositive as to the original meaning of the privileges or immunities clause of the 14th Amendment according to the framers of that amendment. In Corfield, Justice Bushrod Washington explained:
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole [people].
Note that the language in italics makes clear that the 14th Amendment protects only rights deeply rooted in history and tradition. The language in bold face is a paraphrase of the Massachusetts Constitution of 1780’s “born free and equal” clause and is a privilege or immunity of citizens of the United States. At the same time, the underlined passage critically limits the “born-free-and-equal” idea by making all rights “subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole [people].” This language marks the origin of what we today call the rational basis test (and what the Lochner-era Supreme Court wrongly called a reasonableness test).
***
In Lawrence v. Texas, the Supreme Court struck down as unconstitutional a Texas sodomy law that applied only to gay and lesbian couples. The court said in dicta that sodomy laws applying to heterosexual couples also violated the Constitution. It did so based on the so-called “right to privacy” found in Griswold v. Connecticut. Since I argued in my last article that there is no such right, I turn now to whether the decision in Lawrence v. Texas was correct under the “born free and equal” clauses and the privileges or immunities clause of the 14th Amendment as discussed above and in my two prior articles.
The first question is whether a right to commit so-called “sodomy,” either by heterosexual or gay and lesbian couples, is deeply rooted in our nation’s history and tradition; that is, whether this is part of the “born-free-and-equal” idea that everyone has the right “to enjoy life and liberty” and to “pursue and obtain happiness and safety.” While the right to commit sodomy has long been criminalized, freedom among committed adult couples to enjoy sexual relationships in every way is arguably covered by the deeply rooted rights to “enjoy liberty” and to “pursue and obtain happiness and safety.”
This question then becomes what is the correct level of generality at which to analyze this issue. Sodomy laws, while of ancient vintage, have almost never been enforced in modern times, except against gay and lesbian people. Although all 50 states and the District of Columbia had such laws in 1960, by 2003, when Lawrence v. Texas was decided, 37 out of the 50 states had repealed their sodomy laws, and these laws were almost never enforced by the 13 states which retained them in 2003. Indeed, the only way to get prosecuted for sodomy in 2003 in the 13 states that retained such laws was to call the police to come to your house during the commission of such an act (which is exactly what happened in Lawrence).
Under these circumstances, one must remember Judge Robert H. Bork’s prophetic words in “The Tempting of America: The Political Seduction of the Law,” in which Bork, one of the founding fathers of modern originalism, stated that: “The world changes in which unchanging values [I would say ‘legal texts’] find their application.” This is a profound observation for an originalist. It means that originalists must not only look at the original public meaning of a text when it is adopted: they must also apply that text to a modern world which presents new technologies and changed circumstances such that the constitutional text must be translated to apply to them. Translation occurs, for example, when we apply the First Amendment’s protection of freedom of speech and of the press to expressive conduct like flag burning, or to hand-written material in a private diary, or in a private letter to a friend, or in broadcast movies, radio, television, and the internet where freedom of expression is constitutionally protected even in the absence of speech – a vocal utterance – or in the absence of a “printing” press.
In “The Tempting of America,” Bork had no trouble finding that the 14th Amendment’s overarching commitment to racial equality, relied upon in Brown v. Board of Education, trumped the original expected application of many of the 14th Amendment’s framers who mistakenly said in congressional debates, in 1868, that racial equality was somehow consistent with segregated public schools and anti-miscegenation laws. This was clearly not true by 1954, as to public schools, and by 1967, as to anti-miscegenation laws.The Supreme Court was therefore right to hold that public school segregation and anti-miscegenation laws are unconstitutional in the modern world even though many of the members of Congress who voted for the 14th Amendment said otherwise.
Exactly the same thing holds true with respect to sodomy laws in 2003. In 1868, the framers of the 14th Amendment, when they wrote Corfield v. Coryell’s version of the “born free and equal” right (subject to a rational basis test) into the privileges or immunities clause of the 14th Amendment, mistakenly thought that sodomy laws were somehow consistent with the “born-free-and-equal” idea. As late as 1986’s Bowers v. Hardwick, a 5-4 majority of the Supreme Court agreed.
But by 2003, with only 13 states having sodomy laws on the books, which they almost never enforced, and decades after the birth control pill was legalized on May 9, 1960, which helped launch a sexual revolution, the rise of the modern feminist movement, and the gay rights movement, it became as difficult to square sodomy laws with the “born-free-and-equal” command of the privileges or immunities clause as it was to square segregated public schools and laws banning inter-racial marriage with the “no race discrimination” command of the 14th Amendment.
Thus, when Brown v. Board of Education was decided in 1954, or when Loving v. Virginia was decided in 1967, or when Lawrence v. Texas was decided in 2003, it was not enough to rely on original expected applications of the framers of the 14th Amendment, which, in fact, undercut the 14th Amendment’s central textual rights. In other words, an originalist judge cannot let constitutional rights – even open-ended rights – be overridden by a clearly mistaken, original expected application of the relevant text.
This still leaves open the key question of whether sodomy laws should have been upheld in 2003 under the rational basis test. As noted earlier, that test also originates in Justice Washington’s Corfield v. Coryell opinion, which states that the rights to “enjoy liberty” and to “pursue and obtain happiness and safety” are “subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole [people].”
Were sodomy laws in 2003, or today in 2026, then “justly prescribed for the general good of the whole [people]”? The answer is “no” for the reasons given by Justice Byron White in his concurrence in Griswold v. Connecticut. There is a lack of means-ends fit to sodomy laws: they intrude on a highly personal sexual liberty right for the dubious purpose of promoting only sex that could lead to childbirth. Yet in a world where contraceptive use is almost universal (even among Catholics, whose church still formally prohibits it), isolating out the act of sodomy for punishment makes little sense. One could just as plausibly punish non-procreative sex by couples using birth control, by heterosexual couples where the woman is post-menopausal, or even masturbation, by individual men and women. All these activities are sexual acts that do not lead to the possibility of childbirth. Is there any rational basis for criminalizing sodomy but not such other conduct? The answer is “no.”
Punishing the non-procreative sexual acts of gays and lesbians is especially unfair to such persons given they have no control over who they are attracted to. As my friend Akhil Reed Amar has argued many times on this site, the citizenship clause of the 14th Amendment, along with the “born free and equal” clauses, commands birthright equality, regardless of whether one is born gay or straight. For this reason, the 13 mostly unenforced state sodomy laws on the books flunk the rational basis test.
***
While I think Lawrence v. Texas thus reached the right outcome in holding sodomy laws to be irrational and unconstitutional, I believe Justice Anthony Kennedy’s majority opinion is vacuous, for many of the reasons pointed out by Justice Antonin Scalia in his dissent. As Scalia made clear, Kennedy’s majority opinion appears to write John Stuart Mills’ harm principal from “On Liberty” (that one’s actions should only by limited so much as they do harm to others) into the 14th Amendment, which is just as wrong as writing Herbert Spencer’s “Social Statics” into that amendment as the court did in the infamous case of Lochner v. New York striking down as unconstitutional perfectly valid laws establishing maximum working hours.
To be clear: Among the many laws that I think rationally trump an individual’s right to “enjoy liberty” and “pursue and obtain happiness and safety” are laws criminalizing: 1) polyamory, 2) prostitution, 3) incest, 4) suicide, and 5) the use of dangerous drugs and narcotics regulated by the government. As Scalia once told me, and as I entirely agree, the people who are disproportionately “harmed” by all six of the activities listed above are women, children, and the elderly who are among the most vulnerable members of society.
Laws banning these six activities, and probably many others, are then subject “to such restraints as the government may justly prescribe for the general good of the whole [people].” The six criminal laws listed above easily pass the rational basis test, unlike laws against sodomy but which ban no other forms of non-procreative sex. Americans, and the Constitution, have always opted for a regime of “ordered liberty” and not for constitutionalizing John Stuart Mill’s harm test.
In my next column, I will analyze through the lens of the “born free and equal” clause the Supreme Court’s gay and lesbian marriage opinion in Obergefell v. Hodges, in which it found a constitutional right to same-sex marriage.
