Last week was a momentous week for liberty — the Supreme Court announced its 6-3 decision on the matter of state sodomy statutes in Lawrence v. Texas, overturning the previous precedent set by Bowers v. Hardwick in 1986. However, what should have been a slam-dunk for freedom instead resurfaced deep divisions and acrimony on the Court over matters of Constitutional interpretation which to the outside observer should be plainly obvious to reconcile.

Consider the complaint brought forth by the litigants — the Texas sodomy statute only applied to homosexual sodomy (as opposed to other states such as Georgia, where such statutes applied to all acts of sodomy, regardless of the gender of the participants). Clearly this was an unequal application of the law, a direct violation of the Fourteenth Amendment which ensures equal protection of the laws to all individuals.

More so, a quick review of precedent demonstrates the gross miscarriage of justice carried out in Bowers v. Hardwick — consider Griswold v. Connecticut (1965), whereupon the Supreme Court found that a Connecticut statute banning the sale of contraceptives to married persons violated a Constitutional guarantee to privacy ensured by an unenumerated right to privacy contained in the Ninth Amendment. To make the connection between the establishment of privacy in Griswold to Bowers v. Hardwick or Lawrence v. Texas does not require any logical acrobatics — very simply, the Constitution not only forbids the government from abridging certain liberties, but more so it sets strict bounds on where the authority of government to interfere in private lives ends. As Justice Kennedy stated in the majority opinion, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” Yet the decision’s critics fail to account for this very simple clause stating that Constitutional freedoms are not exhaustive, instead choosing to ignore it entirely.

Scalia in his dissent comments with almost intended irony, “Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a ‘fundamental right’ under the Due Process Clause[…] The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a ‘fundamental right’ or a ‘fundamental liberty interest,’ nor does it subject the Texas statute to strict scrutiny.”

Scalia is once again correct on the fact but incorrect on its relevance — the Court does not implicate sodomy as a fundamental right because to do so would be absurd. Rather, the case revolves around issues of sexual privacy, an issue long-established to be of a fundamental nature since Griswold, calling into question the very competence of a legal jurisprudent incapable of making this distinction. As Kennedy wrote, “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said that marriage is simply about the right to have sexual intercourse. […]Their [the laws’] penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, in the most private of places, the home.”

Others have made a somewhat more defensible objection, arguing that such a case had no business being decided before the Supreme Court, instead arguing for deference to the legislatures of states which maintained these laws. Yet in cases where the laws of states collide with Constitutional protections like those guaranteed in the Fourteenth Amendment, the deference principle no longer holds.

Additionally, to make the claim that the Tenth Amendment gives states free reign to disenfranchise individual citizens as they please ignores the very purpose of the amendment which precedes it, granting guarantee that enumerated rights should not be taken to be exhaustive. Such logic flies in the face then of the framers’ intent, turning what would be laboratories of democracy into minor baronies where Constitutionally-protected freedom no longer applies.

Finally, the duty of the Court to overturn laws decided to be unconstitutional is a power of the Court established since Marbury v. Madison, hardly a recent judicial doctrine. The Lawrence decision falls neatly into this category — to argue otherwise is to throw away two hundred years of legal precedent.