Here's the transcript of the hearing:Lawrence vs. Texas
The challenging side puts up two arguments:
2) Equal protection
When you read through the arguments proposed and the questions/comments made by the justices, you might pick up what I did--the question of law is never done on a strictly Constitutional basis. Other factors, such as the effects on society, are considered.
Also considered is history and values.
Now some folks might call this a liberal way of judging the constitutionality of law. I, however, find it to be more reasonable than strict interpretation.
As has been pointed out, the Constitution does not have a privacy amendment directly addressing the issue of when police can come into your home. Yet we all know that a warrant is necessary before this can be done or the permission of the residents.
Texas apparently doesn't issue warrants on sodomy, and for good reason. How are you going to time this just right? Get a schedule of sex from your target? Run surveillance? The enforcement of the law then comes into question.
So if the law can't be enforced except under situations where the police happen to show up for some other reason (illegal firearms in this case), then the second argument comes into play.
But the second argument has an even better basis: You can't regulate the behavior of a group just because it is a different group from the majority. It doesn't matter if this group offends you or not. Doesn't matter if particular activities of the group go against the moral values of the majority. Something concrete has to be shown to support the law.
I liked the question to the defense about homosexuals teaching kindergarten. Would that be unconstitutional too? The answer the defense gave was, yep, if that's the only reason. But what about indoctrination into the homosexual way?
Wow! That sure opens a can of worms. Can this be demonstrated or is it conjecture? Does a five-year-old make sexual orientation choices? Please provide some evidence if you think this is true.
So, the Texas sodomy law was shown to be directed at only homosexuals. I think that was the primary reason it was struck down.
Now, where in the Constitution does it say that we have a right to equal protection under the law? It's in the 14th Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I'd also go as far to say that this is the privacy amendment. If you deprive me of privacy, you have deprived me of liberty.
But what exactly is privacy? I'll define it as what we do in non-public places: homes, rest rooms, changing rooms, bedrooms. Are there laws that go against this? Some--cameras in changing rooms to thwart shoplifting, for example. Some rest rooms are awfully dang public, too--although both examples are more about business behavior than law.
Nevertheless, the most obviously private place is the bedroom. Since sexual behavior laws regarding what goes on in the bedroom can't be equally enforced, and since this particular law was shown to single out homosexuals without having clear reasons for this, the law was struck down.
I'm in agreement with this decision.