Lawrence v. Texas (2003) was a case decided by the U.S. Supreme Court in which a 6–3 majority held that a Texas statute criminalizing homosexual sodomy violated the “right to privacy” contained in the Fourteenth Amendment of the U.S. Constitution. The case overruled Supreme Court precedent and effectively established a constitutional right to engage in homosexual intercourse. More broadly, the decision furthered the court’s expansive application of liberty and privacy rights under the doctrine of substantive due process.
In the 1920s, the Supreme Court began to interpret broadly the free exercise and due process clauses of the Fourteenth Amendment as guaranteeing a right to privacy. In Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), the right to privacy was expanded to include the use of contraceptives by married and unmarried couples, respectively. Roe v. Wade (1973) established a privacy right to abortion. The American Civil Liberties Union, American Law Institute, and other social activist groups began to oppose sodomy laws in the 1960s. Legal challenges relied upon the right to privacy cases and culminated in the 1986 Supreme Court case of Bowers v. Hardwick.
Justice Byron White, writing for a 5–4 majority in Bowers, rejected the argument that homosexual sodomy was a constitutionally protected right. White emphasized that the right to privacy precedent had contemplated only procreative sexual activity, rather than homosexual sodomy, which had historically been condemned and criminalized as immoral behavior. The dissent argued that homosexual conduct should have been protected as an individual right within the broader right to privacy.
Seventeen years later, the Supreme Court revisited the issue of homosexual sodomy in Lawrence v. Texas. The homosexual conduct provision of the Texas Penal Code classified behavior as a misdemeanor crime if a person “engages in deviate sexual intercourse with another individual of the same sex.” John Lawrence and Tyron Garner were arrested under the statute on September 17, 1998. One of Lawrence’s two overnight houseguests, apparently jealous of flirtations between Lawrence and Garner, called the police with a false report that someone was wildly brandishing a firearm in Lawrence’s residence. When the police arrived, they witnessed Lawrence engaged in oral sodomy with Garner. Lawrence and Garner were convicted and appealed to the Supreme Court.
Justice Anthony Kennedy’s majority opinion primarily addressed the question of “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” and, hence, “whether Bowers v. Hardwick should be overruled.” The answers to both questions were in the affirmative.
Kennedy asserted that the majority in Bowers had erred by framing the question as whether homosexuals had a right to engage in sodomy. Rather, Kennedy framed the issue as relating to personal relationships and dignity within the context of overt expressions of intimate conduct. Kennedy relied on post-Bowers cases, including Planned Parenthood v. Casey, as evidence that Bowers had been wrongly decided. Casey “reaffirmed the substantive force of the liberty protected by the Due Process Clause” and “confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”
Justice Sandra Day O’Connor’s concurring opinion focused upon the equal protection clause of the Fourteenth Amendment, rather than the due process clause. The equal protection clause, according to O’Connor, proscribed sodomy laws that targeted only homosexual sodomy. The anti-sodomy law at issue in Bowers applied equally to all citizens and rested on a general moral approbation of sodomy. As such, O’Connor agreed to invalidate the Texas law but would have upheld the central due process rationale of Bowers.
The dissenting opinion by Justice Antonin Scalia criticized the majority for relying on Casey while ignoring the principle of stare decisis that influenced the decision in that case. Casey upheld the controversial central holding of Roe v. Wade because “to overrule under fire in the absence of the most compelling reason … would subvert the Court’s legitimacy beyond any serious question.” The court’s willingness to ignore precedent and overturn Bowers was deemed manipulative and to have exposed the court’s “extraordinary deference to precedent [in Casey] for the result-oriented expedient that it is.”
Scalia rationalized that the state interest in criminalizing homosexual sodomy reflected the same “majoritarian sexual morality” that justified the criminalization of fornication, bigamy, adultery, adult incest, bestiality, and obscenity. The majority’s opinion, therefore, undermined the legitimacy of all laws based upon public morality. Scalia similarly expressed discontent with the moral subjectivity of O’Connor’s attempt to “validate laws by characterizing them as ‘preserving the traditions of society’ (good); or invalidate them by characterizing them as ‘expressing moral disapproval’ (bad).” The dissent accused the court of having “taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
While the court’s decision to sweep aside laws criminalizing homosexual conduct reflects the ethical dimensions relating to gay rights, the dissenting opinions broaden the ethical inquiry to include the propriety of the Supreme Court’s judicial activism and, ultimately, the legitimacy of its decisions. Quoting Casey, Justice Kennedy admonished, “[o] ur obligation is to define the liberty of all, not to mandate our own moral code.” Scalia objected that the majority had betrayed democracy and liberty precisely by judicially imposing its own moral code on America. By championing a social activist cause and expanding the right to privacy to include homosexuality, the court rendered itself liable to criticism that it was performing a political, rather than judicial, function. This perception encouraged liberal activists to view the court as a venue for social justice while simultaneously delegitimizing the court’s authority among social conservatives. As such, the Supreme Court ensured that it would continue to serve as a principal battleground in America’s “culture wars.”
- Carpenter, Dale. Flagrant Conduct: The Story of Lawrence v. Texas. New York: W. W. Norton, 2012.
- Franke, Katherine M. “The Domesticated Liberty of Lawrence v. Texas.” Columbia Law Review, v.104/5 (2004).
- Gong, Lijia and Rachel Shapiro. “Sexual Privacy After Lawrence v. Texas.” Georgetown Journal of Gender and the Law, v.13/2 (2012).
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