Lawrence and the drug laws

One criticism of Justice Kennedy’s majority opinion in Lawrence v. Texas is that it enunciated principles far more sweeping than were required to reach its result. (Justice O’Connor’s concurrence is much more modest in this regard, just as Justice Thomas’s dissent shows how one can oppose the decision without sounding like the later Robert Bork or Phyllis Schlafly.) [Jack Balkin, who, unlike me, is a Constitutional scholar, provides a sympathetic interpretation and exegesis of the opinion here and here; anyone who agrees with my more critical stance owes it to himself to consider Balkin’s more informed view.]

Whatever its merits, the opinion is what it is, and it’s time to start thinking about what it does to the rest of the law, not merely law relating to homosexuals and homosexual conduct.

An example from my own specialty, drug policy: the decision in Lawrence seems to sit uncomfortably with the decision in Smith v. Oregon, upholding the application of a state statute against peyote use to forbid the use of peyote in the worship of the Native American Church. That decision was made on First Amendment grounds: the freedom of religion was held not to extend to a religious practice that was made illegal on legitimate secular grounds. The court subsequently held that the Congressional attempt to overturn Smith by redefining religious liberty (in the Religious Freedom Restoration Act) was invalid, at least as applied to state law.

If I recall correctly, the appellants in Smith didn’t even attempt to make a privacy argument. But if the right to privacy protects what the Lawrence opinion calls “liberty in its … more transcendent dimensions,” it doesn’t seem at all far-fetched to think that it might cover religious and spiritual activity as well as “intimate conduct.” Perhaps even Richard Glen Boire’s claim to a generalized “cognitive liberty” — the right to regulate one’s own consciousness by whatever means, including chemical means, one chooses — isn’t as far out of bounds as I used to think it was.

Now if Balkin is right that the extension of privacy rights must follow, rather than leading, changes in public opinion, this argument won’t fly, or at least won’t fly until public attitudes change. The non-inconsiderable number of people who occasionally use one or another of the banned hallucinogens either in congregational, ritual practice or in individual spiritual exploration have not achieved anything like the same social acceptance as gays have. (One of my friends, who is both gay and a sometime user of hallucinogens for spiritual ends — to all appearances successfully, since he is one of the few candidates for sainthood I’ve been privileged to know — has remarked that psychedelics users remain much more deeply closeted than gays.)

As a technical matter, it wouldn’t be very hard to craft exemptions from the drug laws to cover the use of a fairly short list of hallucinogens with low organic toxicity and low addiction potential, under circumstances of reasonable safety for the participants and others, for individuals and groups that can show various indicia of more-than-merely-recreational intentions. But the Court in Smith refused to require that any such attempt be made. Is Smith about to go the way of Bowers?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: