Are Laws Against Gay People (Homosexuality) ''Legal'' In the US ?
Are laws which makes homosexual conduct a crime constitutional ?
In Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), the United States Supreme Court applied the rational basis test and concluded that the statute at issue, which made it a crime for two persons of the same sex to engage in a consensual act of sodomy in the privacy of their home, was an unconstitutional violation of due process. Lawrence, 539 U.S. at 579, 156 L. Ed.2d at 526, 23 S. Ct. at 2484. Downin urges this court to extrapolate from the Lawrence decision the "inescapable" conclusion that Lawrence stands for the proposition that homosexual conduct falls within the penumbra of the fundamental right to privacy or liberty and the further implication that the right of nonmarried individuals to engage in sexual conduct is likewise a fundamental right.
Although a valiant attempt to stretch the boundaries of Lawrence, Downin's argument is unpersuasive.
The Supreme Court in Lawrence stated that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. Lawrence, 539 U.S. at 572, 156 L. Ed. 2d at 521, 123 S. Ct. at 2480.
The Court in Lawrence did not conclude that sodomy or any other sexual activity is a fundamental right.
The Lawrence decision involved a due process claim and was resolved through an application of the rational basis test. Lawrence, 539 U.S. at 578, 156 L. Ed.2d at 525, 123 S. Ct. at 2484 (finding the Texas statute furthered no legitimate state interest which could justify its intrusion into the personal and private life of the individual).