On Friday, the Ninth Circuit—the federal appeals court for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington—decided that, contrary to what two other circuit courts have said, sex is a constitutional right such that the state cannot fire an employee for private sexual conduct.
In this most recent case out of Roseville, California, Janelle Pérez, previously a probationary officer, sued the police department after being fired for adultery.
P[é]rez was discharged after an internal affairs investigation into her romantic relationship with a fellow police officer. She claims that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct.
The Ninth Circuit sided with Pérez. Here’s its helpful summary:
[T]he panel held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.
The Ninth Circuit’s ruling has significantly increased the odds of a Supreme Court showdown. Although the Supreme Court denied certiorari (or turned down) an appeal in an earlier adultery case in December, that was before there was disagreement among the lower courts. Now that the Ninth Circuit has created a circuit split, the Supreme Court is more likely to step in to resolve a question. The preceding cases are also similar enough to create a clean opportunity for review.
The Fifth Circuit—that’s Louisiana, Mississippi, and Texas—and the Tenth Circuit—covering Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—okayed firing police officers for adultery. The Fifth Circuit glancingly acknowledged some sexual conduct is constitutionally protected but breezed past that note to suggest public employees have waived that protection. Meanwhile the Tenth Circuit based its decision on (a misinterpretation of) an earlier, foundational gay rights case, Lawrence v. Texas, which struck anti-sodomy laws as unconstitutional.
The Ninth Circuit rooted its ruling in a legitimate reading of Lawrence. That decision established that sex between two consenting adults of the same sex is protected under the Due Process Clause as a matter of liberty.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. 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." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
That the courts are fighting over Lawrence points to the second reason the Supreme Court may take the case: The concept that’s been litigated as applied to heterosexual police officers is one that has tremendous implications for gay rights, especially as gay rights decisions have thus far been based on a right to liberty. (Of course, the third-rail nature of this case is also a reason for the court to avoid it.)
The final reason the court may now be more likely to step in? Justice Anthony Kennedy authored Lawrence—as well as the other major gay rights opinions. He’s been rumored to be on the verge of retiring for more than a year. While sorting out the entire jurisprudential morass Kennedy’s created around LGBT rights may seem a Sisyphean task, setting the lower courts straight, so to speak, on liberty, privacy, and sex is a readily achievable way to protect his legacy.