The Charlotte police force memo described by Professor Schroeder strikes me
as a plausible reading of Lawrence. Lawrence's fundamental rights holding
is arguably limited doctrinally in subtle ways. The privacy right
protected seems to involve personal sexual activity in a context of binary
intimacy, primarily in the home. Among the issues not clearly addressed
are various rights of transgendered/transsexual folk (no sexual activity,
no intimacy); a right to casual sex (no intimacy); a right to sex with more
than two people (no binary intimacy); a right to sex for money (no
intimacy); and a right to sex in places not quite so private -- e.g., car,
music festival, woods, beach, sex club, video booth (not physically as
private as a home, no intimacy, perhaps not binary).
In fact, arrests for engaging in same-sex activity in people's houses under
the sodomy statues that Lawrence are invalidated has been rare. Many more
people (gay men especially) are arrested for sex in public, under lewd
conduct or public indecency or the like. I don't see Lawrence affecting
this situation.
Let me raise another weird thought about post-Lawrence gay rights
arguments. We might see a flip-flop on the status-conduct distinction.
That is, after Bowers and before Lawrence, GLB advocates in various
contexts argued that even though homosexual sexual activity could be
criminalized, just because an individual said s/he was gay did not permit
anyone to assume that s/he would actually engage in sex. Thus,
discrimination based on status should not be allowed just because Bowers
said conduct could be criminalized. After Lawrence, in which same sex
conduct was held constitutionally protected, at least within certain
parameters, we may see a reversal of strategy. GLB advocates may seek to
link homosexual status explicitly to a presumption of sexual conduct. The
argument would be that discriminating against GLB people is indirectly
burdening a protected constitutional right to sexual activity in private.
Happy Fourth
Marc R. Poirier
Professor of Law
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8478
Chris SCHROEDER
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Sent by: Discussion Subject: Progeny of Lawrence
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07/03/03 03:47 PM
Please respond to
Discussion list for
con law professors
The following has just come to my attention. It is the guts of a memo just
issued to the police force of Charlotte, NC, regarding the implications of
Lawrence v. Texas for the enforcement of North Carolina's crimes against
nature statute. The statute itself is delightfully brief: If any person
shall commit the crime against nature, with mankind or beast, he shall be
punished as a Class I felon.
Here is the excerpt from the memo issued by police headquarters to the
police officers in Charlotte:
[Lawrence] draws into question the constitutionality of N.C.G.S. �14-177,
Crime Against Nature. Clearly, the holding in Lawrence prohibits charging
two consenting adults who are engaging in a crime against nature within a
private residence with the above charge. However, the case did not
directly address the solicitation of a crime against nature
(SOLCAN).<?xml:namespace prefix = o ns
= "urn:schemas-microsoft-com:office:office" />
For the time being and until a court tells us otherwise, we are of the
following opinion: 1.) a SOLCAN charge wherein a subject offers to commit a
crime against nature for money in either a private or public place is a
valid charge; 2.) a SOLCAN charge wherein the subject offers to commit a
crime against nature for no money in public or at an unspecified location
is a valid charge; and 3.) a SOLCAN charge wherein the subject offers to
commit a crime against nature for no money or consideration at a private
place is no longer a valid charge.
We have spoken with the D.A.'s office who has agreed to continue to accept
these charges; however, in the event a judge dismisses these cases based on
a different interpretation, we may have to discontinue filing some or all
SOLCAN charges.
Officers should still charge individuals with felony crime against nature
if persons are observed engaging in anal or oral sex in a public place,
such as a park or a restroom.
*****
Any thoughts?
