SPITZER vs. UNITED STATES

JUSTICE KENNEDY delivered the opinion of the Court, joined by Justices Souter, Ginsburg, Breyer, and Clinton

Just seven years ago, this Court proclaimed: "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 both in its spatial and more transcendent dimenstions."

Those words were, of course, the opening lines of our landmark decision in Lawrence v. Texas. Those words are as important today as they were in 2003. This case, too, presents an issue of liberty, this time time outside the home, involving thought, expression, and intimate conduct. In this case, too, the State should not be a dominant presence.

This case presents the issue we carefully reserved in Lawrence. See Slip Op. at 18 (noting that that case did "not involve . . . prostitution"). We now conclude that the liberty recognized in Lawrence applies equally to private, consensual sexual conduct by adults, in whatever form of intimacy those adults design. The fact that the arrangement might, in some sense, be thought commercial does not necessarily indicate that it is anything other than consensual.

The reasoning of Lawrence fully extends to the conduct at issue here. The government has attempted to criminalize consensual adult sexual relationships, merely because that consent involves a financial transaction. Though given the name "prostitution," that ancient pejorative, full of moral condemnation, cannot survive the realities of modern understandings of the right of individuals to make their own choices in matters "involving the most initimate and personal choices a person may make in a lifetime, choices central to personal dignitiy and autonomy." Slip op. at 13, quoting Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

As we noted in Lawrence, and as is likewise true here, [t]he petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual." We noted, in Lawrence, the long line of cases supporting the constitutional right to privacy with respect to consensual sexual conduct, from Griswold to Eisenstadt to Roe to Carey to Casey. We swept aside Bowers v. Hardwick as a deviant case, departing from our norms. As we said in Lawrence, "a person relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." Slip Op. at 6. "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." Id. One need not endorse the sexual conduct at issue here -- one may recognize its emotional harm to third parties, such as spounses and children -- yet still recognize that an intimate sexual relationship, "whether or not" entitled to the law's embrace, cannot incur the laws condemnation. The record here shows a long relationship. The petition certainly cannot be punished as a criminal for that relationship. To do so would be to deny him the "right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life" -- matters "[a]t the heart of liberty." Lawrence, quoting Casey.

As in Lawrence, we acknowledge that "for centuries there have been powerful voices" to condemn prostitution "as immoral. The condumnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. * * * These considerations do not answer the question before us, however. 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.'" Slip op. at 10 (quoting Casey). That liberty, as we demonstrated in Lawrence, evolves with our sense of evolutions in social understandings, reflected in changed perceptions both in the United States, and, especially, in enlightened nations of western Europe, like the Netherlands. See id. Slip op. at 11-12. As in Lawrence, so too here: "The right the petitioners seek in this cae has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent." Slip Op. at 15.

There is no persuasive basis for distinguishing the Lawrence Liberty here. Moral condemnation is not, as we have shown, a persuasive or legitimate basis for laws interfering with intimate sexual liberty. Again, in Lawrence, we observed (following JUSTICE STEVENS's dissent in Bowers), that "'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.'" , Slip Op. at 17. Nor is the fact that the arrangement may have a commercial element sufficient to distinguish this case. Abortion, which we have held to be an essential aspect of liberty, usually involves a commercial transaction. That does not lessen the liberty-refuge that we think should not be doubted.

This case, like Lawrence, involves "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a [prostitution] 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. The right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government." Slip Op. at 18. There is, as we have often said, "a realm of personal liberty which the government may not enter." Casey, supra at 847. The Mann Act furthers "no legitimate [government] interest which can justify its intrusion into the personal and private life of the individual."

We conclude where we began, with the stirring words of Lawrence, this time from its penultimate paragraph:

"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."

We uphold petitioner Spitzer's "search for greater freedom." We therefore reverse his conviction on constitutional grounds. We have no need to reach the question of the proper construction of the federal statute at issue here, for we rest our decision on the more fundamental ground that liberty protects consensual prostitution. The statute cannot constitutionally applied to the conduct for which petitioner was prosecuted.

It is so ordered.