Lawrence v. Texas
Lawrence v. Texas was a case decided by the United States Supreme Court in 2003; the 6-3 decision invalidated the criminal prohibition of homosexual sodomy laws in the State of Texas. The court had previously addressed the same issue in Bowers v. Hardwick, 1986, but there had upheld the challenged Georgia sodomy statute, not finding a constitutional right to same-gender sodomy.
Lawrence (Case No. 02-102) explicitly overturned Bowers, which it held viewed the liberty at stake too narrowly. The Lawrence court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment to the United States Constitution. Lawrence will have the effect of invalidating similar laws throughout the United States insofar as they apply to consenting adults acting in private.
The case attracted much public attention, and a large number of amicus curiae briefs were filed in the case. The decision, which contained a bold declaration of the dignity of non-heterosexual persons, was celebrated by gay rights activists, hoping that further legal advances may result as a consequence; the decision was lamented by social conservatives for the same reasons.
History and Appeals
The petitioners, John Geddes Lawrence and Tyron Garner, were found having consensual sex in their home in Houston, Texas after police received a false report of a "weapons disturbance" from a neighbor, Roger David Nance (despite the false report, probable cause to enter the home was not at issue in the case). They were charged under a Texas "Homosexual Conduct" law, which prohibits anal and oral sex between members of the same gender, but not between members of the opposite gender.
They were convicted by a justice of the peace, but exercised their right to a new trial before a Texas Criminal Court. They asked the Criminal Court to dismiss the charges against them on Fourteenth Amendment equal protection grounds, claiming that the law was not constitutional since it prohibits sodomy between same-gender couples but not between heterosexual couples, and also on right to privacy grounds (also known as the "substantive due process" argument; the right to privacy for same-gender couples had previously been recognized to include sex, including sex using contraception, i.e., non-procreative sex, but not sodomy). After the Criminal Court rejected this request, they pleaded no contest, reserving their right to file an appeal, and were fined $200 each, plus $141.25 in court costs.
They then appealed the case to the Texas Court of Appeals on both equal protection and right to privacy grounds. A panel of the Texas Court of Appeals originally ruled in the defendants' favor, but the full court voted to reconsider its decision, and upheld the decision, denying both the privacy (substantive due process) and the equal protection arguments. The Texas Court of Criminal Appeals denied review.
Supreme Court History
The Supreme Court granted a writ of certiorari (thus agreeing to hear the case) on July 16, 2002. Oral argument was heard in the case on March 26, 2003; the decision was rendered on June 26, 2003.
The questions before the court were the following:
- Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-gender couples, but not identical behavior by different-gender couples—violate the Fourteenth Amendment guarantee of equal protection of the laws?
- Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?
- Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?
On June 26, 2003 the Supreme Court voted 6-3 to strike down the Texas law, with the five-justice majority saying it violated due process guarantees. The majority opinion appears to cover similar laws in 12 other states and reverses Bowers v. Hardwick.
Justice Anthony Kennedy wrote the majority opinion, in which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. The court stated that, as part of constitutionally protected liberty, non-heterosexuals have "the full right to engage in private conduct without government intervention."
The decision cited Dudgeon v. United Kingdom, a 1981 case heard by the European Court of Human Rights, as demonstrating in part that the court's assumption in Bowers (that Western civilization uniformly condemned homosexuality) was erroneous, and added that "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."
The majority decision found that the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's Due Process Clause. Holding that "[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual[,]" the court struck down the anti-sodomy law as unconstitutional.
Justice Sandra Day O'Connor filed a concurring opinion, agreeing with the invalidation of the sodomy law but not with Kennedy's rationale. O'Connor disagreed with both the overturning of Bowers (in which she was in the majority) and with the court's invocation of due process guarantees of liberty in this context. O'Connor instead preferred the more limited Equal Protection argument which would still strike the law because it was directed against a group rather than an act, but would avoid the inclusion of sexuality under protected liberty.
Under this argument, O'Connor maintained that a sodomy law that was neutral both in effect and application might well be constitutional, but that there was little to fear because "democratic society" would not tolerate it for long. She did leave the door open for laws which distinguished between homosexuals and heterosexuals on the basis of legitimate state interest, but found that this was not such a law.
Justice Antonin Scalia wrote a sharply worded dissent, in which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions from lower courts based on Bowers that, with its overturning, may now be open to doubt:
Williams v. Pryor, which upheld Alabama's prohibition on the sale of sex toys; Milner v. Apfel, which asserted that "legislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms;" Holmes v. California Army National Guard, which upheld the federal statute and regulations banning from military service those who engage in homosexual conduct; Pwens v. State, which held that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage."
Echoing Senator Rick Santorum's May 2003 comments that if the justices overturned the Texas law, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery, you have the right to anything," Scalia also claimed that "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices."
Scalia asserted that with this decision, the Court "has largely signed on to the so-called homosexual agenda," adding that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means."
Justice Thomas in a separate short opinion wrote that the law which the Court struck down was "uncommonly silly" but that he voted to uphold it as he could find no general right of privacy or relevant liberty in the Constitution.
The Broader Implications of Lawrence
Lawrence v. Texas may eventually come to be seen as one of the most important decisions by the United States Supreme Court. The broader implications of the Court's decision include the following:
- Though not decided upon equal protection grounds, the majority decision still calls into question other legal limitations on the rights of non-heterosexuals, including the right to state recognition of same-gender marriages, and the right to serve in the military.
- An issue central to the case, particularly focused on during oral argument, was whether laws can be justified merely through invocations of "morality" without the demonstration of any actual harm. This issue was a major concern for Justice Scalia in his dissent. Many laws would likely fail the test that the Texas sodomy statute failed here, including those prohibiting other forms of sexual behavior considered "deviant," or bans against obscene materials.
- This case and its opinions exemplify fundamental debates in constitutional theory. Some argue that the original intent of the framers of the constitution should play the central role in constitutional interpretation. Others argue that the courts should have a more active role in expanding concepts of liberty, striking down majoritarian law when necessary to protect unsympathetic minority groups and conduct. Both general positions have their judicial and scholarly supporters.
- Central to the conflict over constitutional interpretation is the doctrine of substantive due process, a doctrine that protects rights not explicitly guaranteed in the Constitution but still considered "implicit in ordered liberty." The doctrine has been used throughout most of the court's history, typically to protect rights traditionally recognized as central to American society, such as those relating to marriage and the raising of children. However, many of its applications have been the target of criticism that the justices have read their personal views into the Constitution (see, for example, Lochner v. New York). The right to privacy, particularly in the context of abortion, is considered by some contemporary critics to be just such an unwarranted and excessive judicial invention. In light of this, it may be significant that Justice Kennedy's majority opinion focused on liberty rather than privacy. Though both are embraced under substantive due process, the shift might signal a significant change in the theoretical basis of the Court's fundamental rights jurisprudence, perhaps in an attempt to skirt the usual criticism over a general privacy right.
- The use of European court decisions as persuasive authority by the majority in the United States raises the question of what influence foreign court decisions should have on United States law. Generally, conservatives (whether judicial or social) vehemently object to the use of foreign court decisions as any kind of authority. Many thinkers of a more liberal bent believe that the U.S. should accommodate itself to international norms, and that foreign decisions, especially those from Europe, should have at least persuasive influence on U.S. jurisprudence.
As with all Supreme Court cases, the meaning of Lawrence will deepen as it is interpreted by lower state and federal courts, legal scholars, and the Supreme Court itself, revealing how broad or how narrow its guarantees of liberty extend.
- Justice Kennedy's Libertarian Revolution: Lawrence v. Texas (Social Science Research Network 2003).
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