Lawrence v. Texas
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Lawrence v. Texas, 539 U.S. 558 (2003), was a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the criminal prohibition of homosexual sodomy in Texas. The court had previously addressed the same issue in 1986 in 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 has the effect of invalidating similar laws throughout the United States that attempt to criminalize homosexual activity between consenting adults acting in private. It also invalidates laws against heterosexual sodomy, although the status of these laws was called into question in 1965's Griswold v. Connecticut.
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 declaration of the dignity of homosexual citizens, was celebrated by gay rights advocates, hoping that further legal advances might result as a consequence; the decision was lamented by social conservatives for the same reason.
History
Prior case law
Under the traditional common-law, the rights of sexual partners were protected through the marriage contract. Thus, sex outside of the marital contract was unprotected and frequently punished by laws prohibiting fornication, adultery, and sodomy, among other crimes. By the 1960s, as attitudes towards sexual relations, marriage, and the role of women began to change, so did the law. Taboos against pre-marital sex waned, "no-fault" divorce laws made getting divorces easier, and the number of unmarried partners living together (a relationship formerly frowned upon) soared. As part of this change in societal mores, the acceptance of same-sex relationships, and the number of people seeking such relationships openly, also increased, to the point that many states repealed their sodomy laws in the 1970s.
As social mores changed, so did the law. The Supreme Court, in 1965's Griswold v. Connecticut, joined this trend toward sexual liberation, striking down a law barring the use of contraceptives by married couples. Griswold was the first Supreme Court case to recognize the right to privacy, which was based not on any specific guarantee in the Bill of Rights, but was part of "penumbras, formed by emanations from those guarantees that help give them life and substance." The Court was careful to limit its recognition of this right to married couples. Eisenstadt v. Baird, decided in 1972, severely eroded the traditional conception of marriage rights by holding in dicta that if the right recognized in Griswold "means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." This appeared to give constitutional protection to all procreative sexual intercourse (and was held to apply to guarantee a right to an abortion in 1973's highly controversial Roe v. Wade), not just sex occurring between married partners.
In 1986's Bowers v. Hardwick, the Supreme Court heard a challenge to sodomy laws brought by an active homosexual who had been arrested but was not prosecuted for engaging in oral sex in his home. The Court rejected this challenge by a 5 to 4 vote. Justice Byron White's majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that longstanding moral antipathy toward homosexual sodomy was enough to sustain the law in question. If the court were to hold otherwise, argued Justice White, the Court would be replacing its own moral judgments with those of the people's elected representatives. The Court's decision in Bowers may have reflected its historical circumstances: the AIDS epidemic was just coming into national consciousness, and with the Court's decision in Roe v. Wade having come under heavy attack, the Court stood reluctant to extend Roe further.
Justice Blackmun wrote a dissent in Bowers arguing that the majority's conception of liberty was too cramped, and many legal commentators agreed. The Kentucky Supreme Court declined to follow the Court's analysis in 1992's Kentucky v. Wasson, striking down its state's sodomy law on the basis of its state constitution. The Supreme Court raised the hopes of gays with its decision in 1996's Romer v. Evans, striking down a Colorado constitutional provision repealing local antidiscrimination ordinances involving sexual orientation. With AIDS having died down in the U.S., all but 13 states having repealed their sodomy laws (where all 50 states had such laws in place 50 years ago), and public perception of homosexuals favorable, the viability of the Bowers decision stood in some doubt.
Lawrence and Garner are arrested
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, 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 appellants' 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 respondents.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:
- 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;
- 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
- 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, covers 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. Kennedy spent most of his opinion casting doubt on the factual findings of the court in Bowers, that homosexual sodomy is a widely and historically condemned practice. For example, Kennedy cited a 1981 European Court of Human Rights case Dudgeon v. United Kingdom, as part of its argument against the Bowers court's finding that Western civilization condemned homosexuality. Chief Justice Burger, concurring in Bowers, had held that "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization"; Kennedy's citation of European law was in part a response to this blanket citation of the values of "Western civilization."
The court concluded 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 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. Kennedy's opinion crucially grounded the right of consenting adults to have sex on how intimate and personal the conduct was to those involved, not on the conduct being traditionally protected by society (as in Bowers), procreative (as in Eisenstadt and Roe), or conducted by married people (as in Griswold). This opened the door in theory to protection of a whole host of sexual activity between consenting adults not protected by other decisions.
Justice Sandra Day O'Connor filed a concurring opinion, agreeing with the invalidation of the Texas anti-sodomy statute, but not with Kennedy's rationale. O'Connor disagreed with both the overturning of Bowers (she was in the Bowers majority) and with the court's invocation of due process guarantees of liberty in this context. O'Connor instead preferred the 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. In some ways, however, O'Connor's opinion was broader than the majority's, for as Justice Scalia noted in dissent it explicitly cast doubt on whether laws limiting marriage to heterosexual couples could pass rational-basis scrutiny.
The dissents
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; Owens v. State, which held that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage."
Scalia also averred 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.
With this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally. Some credit Scalia's dissent as heralding the later Goodridge v. Dept. of Public Health, the case decided by the Massachusetts Supreme Judicial Court which held that the Massachusetts state constitution requires that marriage be available to homosexual as well as heterosexual couples (Though Scalia's dissent makes no reference to any developments that might occur in state courts, state courts generally interpret provisions of their state constitutions in accordance with U.S. Supreme Court decisions interpreting similar language.)
Justice Thomas, in a separate short opinion, wrote that the law which the Court struck down was "uncommonly silly" (a phrase from Justice Potter Stewart's dissent in Griswold v. Connecticut), but that he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He 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." [1] 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." [2] 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. Although no court has interpreted the U.S. Constitution to require states to allow same-sex marriage, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Dept. of Public Health that the constitution of the Commonwealth of Massachusetts required that homosexuals be given full marriage rights. The decision did cite Lawrence, which was decided some four and a half months earlier, but did not draw on its direct precedential authority, as Goodridge was decided on exclusively state constitutional grounds. However, the Court did cite Lawrence in interpreting text similar to that of the U.S. Constitution; state courts usually draw on federal court decisions the U.S. Constitution in interpreting analogous language in state constitutions.
- 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 laws when they believe it necessary to protect unpopular 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 Court has not ruled on statutes prohibiting adult incest, polygamy, adultery, prostitution, and other forms of sexual intimacy between consenting adults. Lawrence may have created a slippery slope for these laws to eventually fall. The Court's doctrine in areas of sexual intimacy will not be entirely consistent internally until these issues are dealt with explicitly.
- Lawrence had the additional impact of invalidating age of consent laws that differed based on sexuality. While untested in the courts, this means that the lowest age of consent on the books in any given state now applies towards both heterosexual and homosexual partners.
- The use of European court decisions as persuasive authority by the majority raises the question of what influence foreign court decisions should have on United States law.
Many proponents of same-sex marriage draw upon Lawrence in their Constitutional reasoning, despite the fact that the High Court stated, "[The decision] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Lawrence v. Texas, 539 U.S. 558 (2003). The concurring opinion of Justice O'Connor stated that "preserving the traditional institution of marriage" is indeed a "legitimate state interest" and that "other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." Lawrence v. Texas, 539 U.S. 558 (2003) (O'Connor, J. concurring).
However, because Lawrence explicity analogized homosexual sodomy and heterosexual intercourse, and because Lawrence severed the link between constitutional protection of sexual conduct and whether the activity is procreative or takes place within the marital relationship or is traditionally protected by society, the logic of Lawrence casts considerable doubt on laws restricting marriage to opposite-sex couples.
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.
Lawrence v. Texas raises the question of whether other prohibitions on the private sexual behaviour of consenting adults are unconstitutional, e.g. cases of incest. In Muth v. Frank, the 7th Circuit declined to extend the reasoning of Lawrence to cases of consensual adult incest, although it did rule that Lawrence v. Texas was "a new substantive rule and [...] thus retroactive".
Notes
1 For a full list of all the organizations and individuals that filed amicus briefs, see here.
References
- Official 52-page written document compilation (PDF file) Syllabus, majority opinion, concurrence, and dissents.
- Official oral arguments (Transcript)
- Reading of opinion (Transcript)
- Oral arguments (MP3 file)
- Reading of opinion (MP3 file)
- Lawrence v. Texas, 539 U.S. 558 (2003) - full text with links to citations from Supreme Court opinions, U.S. Constitution, U.S. Code, and C.F.R.
- Text file of Supreme Court opinion at Findlaw.com
External links
- "Federal Courts and the Imaginary Constitution", essay by Congressman Ron Paul on LewRockwell.com.