682 the court voiced concern that it would be

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682 The Court voiced concern that “it would be difficult . . . to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.” 478 U.S. at 195–96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217–18) suggested that these crimes are readily distinguishable. 1959 AMENDMENT 14—RIGHTS GUARANTEED
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most critical of the Court’s framing of the issue as one of homo- sexual sodomy, as the sodomy statute at issue was not so lim- ited. 683 Yet, Lawrence v. Texas , 684 by overruling Bowers , brought the outer limits of noneconomic substantive due process into question by once again using the language of “privacy” rights. Citing the line of per- sonal autonomy cases starting with Griswold , the Court found that sodomy laws directed at homosexuals “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being pun- ished as criminals . . . . 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 pro- tected by the Constitution allows homosexual persons the right to make this choice.” 685 Although it quarreled with the Court’s finding in Bowers v. Hardwick that the proscription against homosexual behavior had “ancient roots,” Lawrence did not attempt to establish that such be- havior was in fact historically condoned. This raises the question as to what limiting principles are available in evaluating future ar- guments based on personal autonomy. Although the Court seems to recognize that a state may have an interest in regulating personal relationships where there is a threat of “injury to a person or abuse of an institution the law protects,” 686 it also seems to reject reli- ance on historical notions of morality as guides to what personal relationships are to be protected. 687 Thus, the parameters for regu- lation of sexual conduct remain unclear. 683 478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits the practices regardless of the sex or marital status of the participants. See id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier privacy cases clearly bar a state from prohibiting sodomy by married couples, and that Georgia had not justified selective application to homosexuals. Id. at 219. Justice Blackmun would instead have addressed the issue more broadly as to whether the law violated an individual’s privacy right “to be let alone.” The privacy cases are not limited to protection of the family and the right to procreation, he asserted, but instead stand for the broader principle of individual autonomy and choice in mat- ters of sexual intimacy. 478 U.S. at 204–06. This position was rejected by the major- ity, however, which held that the thrust of the fundamental right of privacy in this area is one functionally related to “family, marriage, or procreation.” 478 U.S. at
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