By Julie Ruiz-Sierra & Richard Glen Boire

Heralded as a landmark victory for gay rights, last week’s Supreme Court decision in Lawrence v. Texas struck down Texas’ “Homosexual Conduct” law, which criminalized consensual sex between homosexual adults. Thursday’s decision, which voided current anti-sodomy laws in 13 states, also overturned Bowers v. Hardwick, 478 U.S.186, a controversial 1986 decision holding that homosexuals have no Constitution right to engage in gay sex.

The Lawrence opinion focused on legal concepts of liberty and privacy in a way that will also have lasting impact outside the struggle for gay rights. Writing for the majority, Justice Kennedy explained:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person in both its spatial and more transcendent dimensions.

The Supreme Court’s express recognition of a fundamental “liberty of the person in both its spatial and more transcendent dimensions,” that among other things protects consensual, private sexual conduct between adults, leaves room for a future recognition of cognitive liberty.  “At the heart of liberty,” wrote Justice Kennedy, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (Quoting, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 851 (1992).)

Combining the right to privacy with the liberty interest, the Court noted:

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.

Elsewhere in the Lawrence opinion, the Supreme Court commented that individual liberty was not to be trumped by government desires to use criminal law to enforce a moral code, noting, “The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.”

In time, many of the arguments advanced by the Lawrence court may be recognized as equally true about private consensual drug use by adults.  Like the liberty of the person, cognitive liberty also has multiple dimensions. In a physical (or “spatial”) sense cognitive liberty can be seen as autonomous control over one’s own neurochemistry; in an abstract (or “transcendent”) sense it is about the freedom to experience and assign personal value to the full spectrum consciousness.  As with intimate sexual expression, the experience of cognition is one of the private realms of personhood where the state should have no presence. And blanket criminal drug prohibition may yet come to be understood as the enforcement of a moral code through criminal law. 

The Court also noted that time can change how we view liberty, and that new dimensions of the right (e.g., ‘cognitive liberty’) may well bloom as time unfolds. Explaining how liberty is not static, but is instead constantly evolving, Justice Kennedy wrote:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The full opinion in Lawrence can be read online at:
http://laws.findlaw.com/us/000/02-102.html

Julie Ruiz-Sierra and Richard Glen Boire are legal counsel for the Center for Cognitive Liberty & Ethics (http://www.cognitiveliberty.org).