Lawrence v. Texas - Further Readings
The Supreme Court issued a landmark decision in Lawrence v. Texas, 539 U.S., 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), striking down state SODOMY laws as applied to gays and lesbians. In the 6–3 decision, five justices overturned a 1986 ruling that had given states the right to criminalize sodomy and announced that homosexuals as well as heterosexuals enjoy a fundamental right to conduct their intimate relations without interference by the state. The decision elated gay rights advocates and outraged conservative groups that warned the decision set the stage for legalizing gay marriage. In a stinging dissent, Justice ANTONIN SCALIA accused the majority of adopting the "homosexual agenda."
John Geddes Lawrence and Tyron Garner were charged with violating a Texas CRIMINAL LAW that made it a crime for same-sex couples to engage in oral and anal intercourse. A police officer had entered their apartment after a neighbor made a false report of a disturbance; the officer observed the couple having sex and charged them with the crime. They pleaded no contest to the charges and were fined $200 and assessed court costs. They appealed to the Texas Court of Appeals and Criminal Court of Appeals, arguing that the law violated the DUE PROCESS and EQUAL PROTECTION CLAUSES of the FOURTEENTH AMENDMENT. They pointed out that the law only applied to acts committed by homosexuals. The Texas courts rejected these arguments, relying on the Supreme Court's 1986 ruling in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). In Bowers, the Court voted 5–4 to uphold a Georgia criminal sodomy statute. It reasoned that there had been a long legal and moral tradition against acts of sodomy and homosexuality. Therefore, homosexuals did not have a constitutional right to commit sodomy. The decision had been severely criticized by legal commentators and state supreme courts, which had overturned sodomy statutes based on state constitution due process clauses. When the Supreme Court agreed to hear the Texas case, it became clear that members of the Court had second thoughts as well.
Justice ANTHONY KENNEDY, writing for the five-member majority, overturned the Bowers precedent, but more importantly made a strong statement on behalf of the CIVIL RIGHTS of gays and lesbians. Justice Kennedy stated that Texas had intruded on the "liberty of the person both in its spatial and more transcendent dimensions" when it prosecuted the two men for committing sodomy. He noted that they were adult men 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.
Kennedy based his legal analysis on a set of SUBSTANTIVE DUE PROCESS rulings dealing with BIRTH CONTROL and ABORTION, including the controversial decision in ROE V. WADE, 410 U.S. 113 (1973). Under the Fourteenth Amendment's Due Process Clause, the Court has found certain unwritten but fundamental liberty interests that the state cannot restrict. These cases made clear that the Due Process Clause "has a substantive dimension of fundamental significance in defining the rights of the person." Therefore, women have a right to make decisions affecting their destiny and married and unmarried couples may make decisions about birth control. This line of cases mandated that private sex acts between mutually consenting adults deserved similar protection. However, to do that the Court had to discredit and reverse the Bowers precedent.
Justice Kennedy dissected the reasoning in Bowers and found it weak and unsubstantiated. In that case, the majority had concluded that the issue at stake was solely the right of homosexuals to commit acts of sodomy. Kennedy disagreed,
finding that the true issue had been the state's attempt to control personal relationships through the criminal law. He declared that as a general rule the state should not attempt to "define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." If homosexuals wish to their express their sexuality in certain conduct the Constitution allows them "the right to make the choice." Kennedy concluded that the Bowers majority had misread history. Sodomy laws directed at homosexuals had only been enacted since the 1970s and that only nine states had done so. Moreover, sodomy laws in general had not been enforced against heterosexuals or homosexuals when the acts took place in private. Though traditional religious and cultural beliefs argued against the morality of homosexual conduct, these considerations had no bearing on the legal issue before the Court.
Kennedy pointed out that laws against sodomy had fallen out of favor. In 1961 all 50 states had such laws, but by 2003 only 13 survived. Of these laws, four enforced laws only against homosexual conduct. In addition, laws against homosexual sodomy had been struck down in Great Britain and by the European Court of Human Rights. Therefore, the historical and cultural underpinnings of Bowers had been wrong. The majority therefore overturned that precedent and declared a due process right to consensual, intimate conduct. In so ruling the majority rejected an alternate argument based on the Equal Protection Clause. That argument would have struck down the Texas law solely because it applied to acts committed by homosexual but not heterosexuals. Justice Kennedy declined to employ this analysis because it might lead to the redrafting of the law to ban sodomy by "same-sex and different-sex participants." This statement implied that all sodomy laws are unconstitutional.
Justice SANDRA DAY O'CONNOR, who had voted with the majority in Bowers, voted to strike down the Texas law on the equal protection grounds rejected by the majority.
Justice Antonin Scalia's dissent, which was joined by Chief Justice WILLIAM REHNQUIST and Justice CLARENCE THOMAS, was based on the conclusion that states should be allowed to legislate their criminal codes. The Supreme Court had no business announcing substantive due process rights that essentially endorsed the personal values of a group of justices. In addition, Scalia argued that the majority had "effectively decree[d] the end of all morals legislation" and would create the opportunity for "judicial imposition of homosexual marriage, as has recently occurred in Canada."