'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom

'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom is the title of an article by Howard J. Bashman published here as a special to Law.com March 5, 2007. Those in the blogosphere know Howard as the author of the excellent blog, How Appealing. I am pleased the article mentioned his private practice, a litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. Here are some excerpts:

Perhaps owing to the nation's puritanical origins, in the United States we love to legislate about sex -- even sex between consenting adults or between consenting adults and inanimate objects.

In the aftermath of the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas invalidating a Texas ban on homosexual sodomy between willing adult participants, many wondered whether other laws regulating sexual conduct between consenting adults would be vulnerable to legal challenge.

If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.

In the more recent of the two rulings, the Supreme Court of Ohio late last month rejected a man's challenge to a state law that criminalizes sexual conduct between a stepparent and stepchild even if both are adults and unrelated by blood, and both willingly participate in the conduct. In seeking to challenge the law as unconstitutional as applied to his case, the stepfather argued that Ohio had no legitimate interest in regulating sex between consenting adults.

However, Ohio's highest court disagreed by a vote of 6 to 1. The majority's opinion observed that "Lawrence did not announce a 'fundamental' right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren." The Ohio justices found that, while the Texas statute in Lawrence was unconstitutional under the so-called "rational basis" test, a rational basis existed for Ohio to prohibit even consensual sex between a stepparent and an unrelated stepchild.

The legitimate interest that the Ohio court recognized was the state's interest in protecting the family unit and family relationships. The Supreme Court of Ohio went on to recognize that if the stepfather and stepdaughter wished to have the ability to engage in sexual relations free from government regulation, they could do so -- if the stepfather divorced the stepdaughter's biological mother.

He had this to say about the 11th U.S. Circuit Court of Appeals decision that resulted from an effort to invalidate an Alabama law prohibiting the commercial distribution of sex toys and the fallout from Lawrence:

The 11th Circuit's opinion explains: "[T]he ACLU argues [that] this case is indistinguishable from Lawrence -- just as in that case, in this case there is no legitimate state interest, including public morality, that supports the challenged Alabama statute."

But the 11th Circuit disagreed, observing that "while the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity."

Thus, the 11th Circuit ruled, "we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute."

For that reason, the court affirmed the Alabama federal district court's most recent ruling in the case and refused to invalidate that state's statute prohibiting the commercial distribution of sex toys.

In the immediate aftermath of Lawrence v. Texas, legitimate questions arose concerning the likely fate of other laws seeking to regulate the sexual conduct of consenting adults. Now, nearly five years later, it appears that the impact of the Lawrence ruling has been far more limited than many had initially hoped -- or feared.