Policing Privacy, Migrants, and the Limits of Freedom

Abstract

In June 2003 the U.S. Supreme Court delivered a landmark ruling that decriminalized consensual sodomy. Lawrence and Garner v. Texas protected the liberty to engage in “certain intimate conduct” as a dimension of a person’s privacy and autonomy. Justice Kennedy, writing for the 6–3 majority, expounds on the constitutional meaning of liberty. He begins with the tenets of classical liberalism, that the state recognizes and makes visible the “dwelling,” the “home,” and “other private places” to protect “persons” from the state’s own intrusive policing. And then Kennedy argues that this liberty and 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 both in its spatial and more transcendent dimensions.” 1 The Lawrence decision repudiated the 1986 Bowers v. Hardwick ruling and explicitly extended the rights of privacy and sexual freedom to adult consenting homosexuals. Justice Kennedy’s decision drew on over thirty years of Supreme Court decisions that limited government intervention in the reproductive choices of women (in terms of both contraception and abortion). 2 In Lawrence and Garner v. Texas, the terrain of privacy and sexual freedom shifted from heterosexual reproduction to adult sexual intimacy more broadly: Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. 3 Significantly, Kennedy’s decision broadened the constitutional protections of privacy beyond the married heterosexual couple and their bedroom, which had dominated the reproductive freedom cases of the 1960s to early 1990s, to encompass the homosexual couple in their home, and perhaps beyond. The parameters for exercising liberty and privacy from govern