Justice Anthony Kennedy announced the U.S. Supreme Court’s decision in Lawrence v. Texas on June 26, 2003, the last day of the Court’s term, in what David Savage reported as ‘‘a moment of rare drama and emotion.’’ The decision sent a welcome message to the lesbian and gay community that their most intimate sexual expressions would no longer be criminalized by any state in the nation. The reach of Lawrence, however, extends to the private and personal liberty rights of all citizens.
A report of a weapons disturbance sent law enforcement officers in Harris County, Texas, to the apartment of John Geddes Lawrence. When officers entered the apartment, they found Lawrence engaged in a sexual act with Tyron Garner. The men were arrested and charged with a misdemeanor violation of the Texas statute that criminalizes ‘‘deviate sexual intercourse’’ by persons of the same sex. At trial, the defendants argued unsuccessfully that the Texas sodomy law violated the equal protection clause of the Fourteenth Amendment and a similar clause in the Texas Constitution. Lawrence and Garner submitted a plea of nolo contendere and were fined $200 each in addition to court costs.
Represented by Lambda Legal, a national lesbian and gay rights advocacy organization, Lawrence and Garner appealed. A three-judge state court panel found the statute unconstitutional under the Equal Rights Amendment of the Texas Constitution. However, sitting en banc on rehearing, the intermediate court of appeals reversed the panel’s decision. After the highest state court refused to hear their case, Lawrence and Garner sought review by the U.S. Supreme Court, which granted a writ of certiorari and set argument for March 26, 2003.
The Supreme Court was asked to decide three issues. First, did the Texas law violate the equal protection clause by criminalizing sexual activity by same-sex couples while not criminalizing the same behavior by different-sex couples? Second, does the due process clause protect the privacy and liberty interests of the petitioners in their intimate sexual relations? Finally, should the Court’s 1986 decision in Bowers v. Hardwick, declaring that homosexuals have no fundamental right to engage in sexual acts, be overruled? Thirty-three amicus curiae briefs were submitted to the Court by organizations ranging from the Alliance of Baptists and the American Family Association to the National Lesbian and Gay Law Association and Human Rights Campaign.
By a six-to-three vote, the Supreme Court struck down the Texas law as unconstitutional. Five justices joined the majority opinion crafted by Justice Kennedy while Justice Sandra Day O’Connor concurred in the judgment, but on different grounds. Justice Antonin Scalia was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas in dissent. Justice Thomas also wrote separately.
The majority decision rests on an individual’s broad right to liberty under the due process clause of the Fourteenth Amendment. Relying heavily on Justice John Paul Stevens’s dissent in the Bowers case, Justice Kennedy recognizes that the petitioners’ right to liberty under the due process clause protects them from governmental intrusion into their private and personal conduct. Additionally, the Court finds that the statute did not further any legitimate state interest that could justify governmental interference with the private sexual conduct of consenting adults.
Justice Kennedy disputes the historical analysis of sexual regulations that the Court made so much of in Bowers, choosing instead to focus on an ‘‘emerging awareness that liberty gives substantial protection to adult persons’’ in their private sexual lives (521). He notes that two cases decided in the years since Bowers further undermine the earlier decision. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court recognized the constitutional protection afforded to personal liberty and autonomy under the due process clause. And in Romer v. Evans (1996), the Court used a class-based argument grounded on the equal protection clause to strike down an anti-gay amendment to the Colorado constitution.
Justice Kennedy acknowledges a nexus between the equal protection and equal treatment issues of Romer and the autonomy and liberty interests espoused by Casey. He opts to rely on the latter, however, suggesting that an equal protection argument would not go far enough in protecting personal liberty. In applying a due process argument, the Court thus recognizes a broader liberty interest that extends to both heterosexuals and homosexuals. In doing so, the Court directly overrules Bowers.
Justice O’Connor joined in declaring the Texas statute unconstitutional but did not agree with the majority’s reliance on the due process clause nor did she vote to overrule Bowers. Instead, she based her argument on the equal protection clause and the failure of the state to satisfy the rational basis test. Although Texas had argued that the statute furthered the promotion of morality, a legitimate governmental interest, O’Connor rejected the state’s argument outright and suggested that it was simply a claim ‘‘to justify a law that discriminates among groups of persons’’ (528).
The dissenting opinion by Justice Scalia takes issue with nearly every aspect of the majority and concurring opinions, from the majority’s willingness to overrule Bowers on principles of stare decisis to the Court’s alleged misapplication of the substantive due process doctrine and its reliance on the rational basis test. Arguing that because both men and women, regardless of their sexual orientation, are prohibited by Texas law from enjoying same-sex relations, Justice Scalia avows that no equal protection violation exists. He issues a pointed warning in his concluding comments that Lawrence ‘‘effectively decrees the end of all morals legislation’’ (539). More significantly, Justice Scalia views the Lawrence opinion as ‘‘the product of a Court . . . that has largely signed on to the so-called homosexual agenda’’ and ‘‘has taken sides in the culture war’’ (541).
Justice Thomas’s two-paragraph dissent rests on his theory of judicial restraint, namely that the legislature should change the law rather than the judiciary, and on his continued rejection of a constitutional right to privacy or the ‘‘liberty of the person’’ (543).
Those concerned with the legal fragility of past privacy decisions are likely to view the expression of a broader liberty right in Lawrence as a positive development. Only time will bear out the full ramifications of the case for gay and lesbian rights in both the legal and political arenas, yet there is little doubt that the Lawrence decision will enter the history books as a landmark ruling.
REBECCA MAE SALOKAR
References and Further Reading
Cases and Statutes Cited
See also Bowers v. Hardwick, 478 U.S. 186 (1986); Due Process of Law (V and XIV); Equal Protection of Law (XIV); Gay and Lesbian Rights; Kennedy, Anthony McLeod; Lambda Legal Defense and Education Fund; O’Connor, Sandra Day; Planned Parenthood v. Casey, 505 U.S. 833 (1992); Privacy; Rehnquist, William H.; Romer v. Evans, 517 U.S. 620 (1996); Same-Sex Marriage Legalization; Scalia, Antonin; Sodomy Laws; Stevens, John Paul; Thomas, Clarence