Lawrence v. Texas

Lawrence v. Texas (539 U.S. 558) was a 2003 case decided by the United States Supreme Court. In the 6-3 ruling, the justices invalidated the criminal prohibition of homosexual sodomy in Texas. The court had previously addressed the same issue in 1986 with Bowers v. Hardwick, but had upheld the challenged Georgia statute, not finding a constitutional protection of sexual privacy.

Lawrence, case number 02-102, explicitly overruled 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.

Lawrence will likely have the effect of invalidating similar laws throughout the United States that attempt to criminalize homosexual activity between consenting adults acting in private. Others will argue for a broader application of its holding. Indeed, Justice Antonin Scalia predicted that the majority's ruling would lead to a push for the recognition of gay marriage as a similar liberty interest, and his prediction seems to have been borne out.

The case attracted much public attention, and a large number of amicus curiae ("friend of the court") briefs were filed in the case. The decision, which contained a bold declaration of the dignity of homosexual persons, was celebrated by gay rights activists, hoping that further legal advances might result as a consequence; the decision was lamented by social conservatives for the same reason.

History

The petitioners, medical technologist John Geddes Lawrence, 60, and street-stand barbecue vendor Tyron Garner, 36, were found having consensual anal sex in Lawrence's apartment in the suburbs of Houston between 10:30 and 11 p.m. on September 17, 1998 when Harris County sheriff's deputy Joseph Quinn entered the unlocked apartment with his weapon drawn, arresting the two.

The arrests had stemmed from a false report of a "weapons disturbance" in their home — that because of a domestic disturbance or robbery, there was a man with a gun "going crazy." The person who filed the report, neighbor Roger David Nance, 41, had earlier been accused of harassing the plaintiffs. (Despite the false report, probable cause to enter the home was not at issue in the case; Nance later admitted that he was lying and pled no contest to charges of filing a false police report and served 15 days in jail).

Lawrence and Garner were arrested, held overnight in jail, and charged with violating Texas's anti-sodomy statute, the Texas "Homosexual Conduct" law. The law, Chapter 21, Sec. 21.06 of the Texas Penal Code, designated it as a Class C misdemeanor when someone "engages in deviate sexual intercourse with another individual of the same sex," apparently prohibiting anal and oral sex between members of the same sex, but not between members of the opposite sex. They later posted $200 bail.

On November 20, Lawrence and Garner pleaded no contest to the charges. They were convicted by Justice of the Peace Mike Parrott, but exercised their right to a new trial before a Texas Criminal Court, where they asked the 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-sex couples but not between heterosexual couples, and also on right to privacy grounds (also known as the "substantive due process" argument).

This said that the right to privacy for heterosexual 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 $125 each (out of a maximum fine of $500 each), plus $141.25 in court costs.

On November 4, 1999, arguments were presented to a three-judge panel of the Texas 14th District Court of Appeals on both equal protection and right to privacy grounds. John S. Anderson and chief justice Paul Murphy ruled in the defendants' favor, finding that the law violated the 1972 Equal Rights Amendment to the Texas constitution, which bars discrimination because of sex, race, color, creed or national origin. J. Harvey Hudson dissented. This 2-1 decision ruled the Texas law was unconstitutional; the full court, however, voted to reconsider its decision, upholding the law's constitutionality 7-2 and denying both the substantive due process and the equal protection arguments. On April 13, 2001, the Texas Court of Criminal Appeals, was petitioned to hear the case; the Court, the highest appellate court in Texas for criminal matters, denied review. The case then arrived at the U.S. Supreme Court, with a petition being filed July 16, 2002.

Considerations

The Supreme Court granted a writ of certiorari agreeing to hear the case on July 16, 2002. A wide array of organizations filed amicus curiae briefs on behalf of the petitioners as well as the defendants.¹

Oral argument was heard in the case on March 26, 2003; the decision was rendered on June 26. The questions before the court were the following:

1. Whether the petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws;
2. Whether the petitioners' criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment; and
3. Whether Bowers v. Hardwick should be overruled.

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, which overrules Bowers v. Hardwick, appears to cover similar laws in 12 other states. Justice Anthony Kennedy wrote the majority opinion; Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. The court stated that, as part of constitutionally protected liberty, homosexuals have "the full right to engage in private conduct without government intervention."

The decision cited the 1981 case Dudgeon v. United Kingdom, a 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 was not correct at that time. 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 protections. 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 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; Owens 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 April 2003 comments, the dissenting justices stated that the majority's findings would lead to a "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. He also added that if he were a member of the Texas Legislature he would vote to repeal the law.

Broader implications

Lambda Legal, which brought the case, hailed the decision as "a legal victory so decisive that it would change the entire landscape for the LGBT community." Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having "changed the status of homosexual acts and changed a previous ruling of the Supreme Court...this was a drastic rewrite." These reactions reflect widespread opinion that Lawrence v. Texas may ultimately be one of the Supreme Court's more influential decisions. Broader implications of this decision have been speculated, including the following:

• Though not decided upon equal protection grounds, the majority decision still calls into question other legal limitations on the rights of homosexuals, including the right to state recognition of homosexual 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 is supposed to protect rights not explicitly guaranteed in the Constitution but still considered "implicit in ordered liberty." Many of the applications of this doctrine 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 (see due process).
• 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 — pre-1776 British decisions excepted — 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. It should also be noted that since proponents of the struck-down law insisted that homosexuality was universally condemned in "Western Civilization", the opinions of courts in Europe could be viewed as directly contradicting that claim, and therefore relevant.

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.

Notes

¹ For a full list of all the organizations and individuals that filed amicus briefs, see .

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References

• Syllabus, majority opinion, concurrence, and dissents.