Court Cases;

OLR Research Report

July 22, 2003





By: Susan Price-Livingston, Associate Attorney

You asked for a summary and discussion of potential implications of the U.S. Supreme Court's ruling in Lawrence v. Texas (123 S. Ct. 2472 (2003)). This is the recent case in which the Court invalidated a Texas statute that made it a crime for two persons of the same sex to engage in certain intimate sexual conduct which was lawful when the partners were of the opposite sex.


On June 26, 2003 a divided U.S. Supreme Court invalidated the Texas Homosexual Conduct Law, which criminalized consensual, private acts of sodomy only when the partners were of the same gender. Justice Kennedy wrote the Court's opinion, joined by justices Stevens, Souter, Ginsburg, and Breyer. He found that the law impermissibly infringed on adults' constitutionally protected liberty interest in engaging in private intimate conduct. Justice O'Connor, who joined in the judgment only, wrote a separate opinion finding instead that the law violated homosexuals' constitutional rights to equal protection under the laws.

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, issued a strongly worded dissent. In his view, the Court should have upheld the Texas statute as a legitimate exercise of the state's interest in enforcing traditional notions of sexual morality. Justice Thomas wrote a separate dissenting opinion, stating that although he thought the law “uncommonly silly” and would vote to repeal it if he were a member of the Texas Legislature, that was not his role as a member of the Supreme Court.

Besides striking all state laws criminalizing sodomy performed in private by consenting adults (four states criminalize same-sex acts only and nine prohibit both heterosexual and homosexual acts), commentators agree that the majority's reliance on homosexuals' constitutional privacy and liberty guarantees, rather than on the discriminatory aspect of the Texas law, as Justice O'Connor did, has potentially wide-ranging implications. Some suggest that by decriminalizing consensual sexual intimacy between adult homosexuals, the ruling weakens arguments used to justify their exclusion from the military and from marriage, adoption, and antidiscrimination laws. Others suggest that the majority's reaffirmation of the constitutional protections for personal autonomy strengthen the arguments for upholding assisted suicide laws.

Scalia's dissent in Lawrence cautions that the majority's broad holding calls into question the validity of all morals-based laws. He specifically mentions state laws prohibiting bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.


Responding to a false report of an armed intruder, police officers entered John Lawrence's home in Houston, Texas one evening and observed Lawrence and another man, Tyron Garner, engaging in sexual relations. Both were arrested, jailed overnight, and ultimately convicted of violating the state's Homosexual Conduct law. A person commits that offense, a class C misdemeanor, when he engages in deviate sexual intercourse (sodomy) with another individual of the same sex (Tex. Penal Code Ann. 21.06). As a result of the conviction, Lawrence and Garner were each fined $200 and assessed court costs.

The men appealed, arguing that the law violated state and federal constitutional protections. A three-judge state appeals panel initially overturned the convictions as a violation of the Texas Constitution's Equal Rights Amendment, but the entire appellate court reconsidered the ruling and reversed, finding the law a proper exercise of the state's sentiment to enforce moral standards (State v. Lawrence, 41 S.W.3d 349 (2001)). After the state's highest court denied their petition for discretionary review, Lawrence and Garner sought review from the U.S. Supreme Court.


The Supreme Court agreed to consider three questions:

1. whether the criminal convictions under the Texas Homosexual Conduct Law – which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples – violated the 14th Amendment guarantee of equal protection of laws;

2. whether convictions for adult consensual sexual intimacy in the home violate the petitioners' vital interests in liberty and privacy protected by the Due Process Clause of the 14th Amendment; and

3. whether Bowers v. Hardwick, 478 U.S. 186 (1986), a case upholding the constitutionality of Georgia's sodomy statute as applied to private homosexual conduct, should be overruled.


Equal Protection: Laws That Discriminate Against Homosexuals

The 14th Amendment's Equal Protection Clause provides:

No state shall make or enforce any law which shall … deny to any person within its jurisdiction equal protection of the laws.

Courts have developed a sliding scale for determining the constitutionality of state laws that grant a particular class of individuals the right to engage in an activity and yet deny other individuals the same right. Generally, they require states to show a compelling interest in laws that draw distinctions adversely affecting “suspect classifications” such as race and national origin. In most other cases, courts uphold statutory classifications if they are rationally related to a legitimate state purpose. But laws exhibiting a desire to harm a politically unpopular group, such as homosexuals, require a more searching form of rational basis review (Romer v. Evans, 517 U.S. 620, 632-633 (1996)). (Romer invalidated a Colorado constitutional amendment barring inclusion of homosexuals in state and local antidiscrimination laws.)

Substantive Due Process: Liberty Interests

The 14th Amendment's Due Process Clause provides:

No state shall … deprive any person of life, liberty or property without due process of law.

The clause has been interpreted to require states to show that laws limiting the exercise of fundamental rights are narrowly drawn and justified by a compelling interest. Rights that courts have designated as fundamental include the rights to privacy, personal autonomy, voting, free speech and association, marriage, and childbearing and –rearing (Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)).

Supreme Court Precedent: Bowers v. Hardwick

In Bowers v. Hardwick, the police arrested Michael Hardwick for violating Georgia's criminal sodomy statute. As in the Lawrence case, the police observed Hardwick and an adult male partner engaging in the prohibited act after entering his home to respond to a false report of criminal activity. Hardwick claimed that the statute, as applied to him, violated his liberty, privacy, and equal protection rights.

By a 5-4 margin, the Supreme Court upheld the Georgia statute. It held that none of the fundamental rights identified in prior liberty and privacy cases involving family relationships, marriage, or procreation bear any resemblance to the right of homosexuals to engage in sodomy. It found unsupportable any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from a state's criminal laws.

In declining to extend fundamental liberty right status to homosexual conduct, the Court relied in part on the “ancient roots” of laws criminalizing this behavior (Bowers, at p. 192). It noted that sodomy was a crime in all 13 of the original states that ratified the Constitution's Bill of Rights and that until 1961 all 50 states prohibited it. It concluded that the views of the majority of Georgia's electorate that homosexual sodomy is immoral and unacceptable is an adequate basis for upholding the law (Id., at p. 196).


Justice Kennedy found that the Constitution's Due Process Clause does give Lawrence and Garner the right to engage in private intimate conduct as an exercise of their liberty rights. In reaching this conclusion, he analyzed and rejected the Court's earlier reasoning in Bowers, stating that it “was not correct when it was decided, and is not correct today” (Lawrence, at p. 2484).

Evolution of Liberty and Privacy Cases

He began with a historical overview of the evolution of the fundamental rights of liberty and privacy under the constitution, particularly cases upholding personal autonomy in certain intimate areas of personal life, such as marriage, family life, and procreation. These cases, he asserted, confirm that the protection of liberty under the Due Process Clause has a substantial dimension of fundamental significance in defining the rights of the person (Id., at pp. 2476-77).

Analysis and Rejection of Bowers' Reasoning

Kennedy then turned to the Court's reasoning in Bowers. The first mistake that Court made, in his view, was framing the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time” (Bowers, at p. 190). Kennedy stated that the Court's characterizing the issue as simply one involving the right to engage in certain sexual conduct demeaned Hardwick's claim, “as it would a heterosexual couple if it were to be said that the right to marriage is simply about the right to have sexual intercourse.” In his view, the liberty protected by the Constitution gives homosexuals the right to choose to enter into sexually intimate relationships in the confines of their own homes and their own private lives and still retain their dignity as free persons (Lawrence, at p. 2478).

Historical Underpinnings

Kennedy next disagreed with the Bowers Court's assertion that proscriptions against homosexual sodomy have ancient roots. He cited several scholarly works and amicus (friend of the court) briefs that suggest that from colonial times through the 1970's, sodomy laws generally sought to prohibit non-procreative sexual activity and criminalized it regardless of the actors' genders. And people were rarely prosecuted under these laws unless the conduct occurred in public, involved a lack of mutual consent, or took advantage of a vulnerable person. He concluded that the historical grounds relied on in Bowers were “more complex, not without doubt, and at the very least, overstated” (Id., at pp. 2478-80).

Ethical and Moral Considerations

Kennedy acknowledged that the Court in Bowers was making the broader point that for centuries powerful voices have condemned homosexual conduct as immoral. This condemnation, he found, has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. He found those ethical and moral considerations should not control the outcome of the Court's rulings. In his view, the issue is whether the majority could use the power of the State to enforce these views on the whole society through operation of the criminal law (Id., at p. 2480).

He concluded that the Court should give more focus to the laws and traditions of the past 50 years, which show an “emerging awareness that liberty gives substantial protection to adults in deciding how to conduct their private lives in matters pertaining to sex” (Id.). The more recent events he listed include the American Law Institute's recommendation in its 1955 Model Penal Code that criminal penalties for consensual sexual relations conducted in private be eliminated and decisions in European courts, including the European Court of Human Rights, finding laws against consensual homosexual conduct unlawful.

Kennedy also pointed out that in the 17 years since Bowers was decided, the number of states with laws prohibiting sodomy dropped from 25 to 13, of which only four enforce their laws only against homosexual conduct. In states where sodomy is still illegal, he found a pattern of non-enforcement for private acts between consenting adults (Id.).

Post-Bowers Rulings

Kennedy then turned to two cases the Court decided after Bowers that he determined cast even more doubt on its holding. The first, Planned Parenthood of Southeastern Pa. v. Casey, supra, reaffirmed the substantive force of the liberty interest protected by the Due Process Clause. He found Casey's reasoning supportive of a finding that homosexuals are entitled to the same rights to make intimate personal decisions and choices without government interference as heterosexuals are. This he found inconsistent with Bowers (Lawrence, at pp. 2481-82).

The second post-Bowers case was Romer v. Evans, 507 U.S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. An amendment to Colorado's constitution excluded homosexuals from the state's antidiscrimination laws. In striking that provision, the Court found that it was “born of animosity toward the class of persons affected” and that it had no rational relation to a legitimate governmental purpose (Romer, at p. 634).

Kennedy then stated that he chose to strike the Texas law on privacy rather than equal protection grounds because focusing on the discriminatory aspect of the law might have left open the question of whether the law would be valid if it prohibited heterosexual acts as well. Were that the case, he concluded that the stigmatizing effect of criminalizing homosexual conduct would continue to subject homosexuals to discrimination in other areas (Lawrence, at p. 2482).

Limitation on Decision's Reach

Kennedy concluded his opinion by describing legal issues that the opinion does not resolve. These are cases involving:

1. minors or people who might be injured or coerced into engaging in intimate activities,

2. public conduct or prostitution, and

3. whether the government must give formal recognition to any relationship that homosexual persons seek to enter (Lawrence, at p. 2484).


Justice O'Connor, who had joined with the majority in Bowers, disagreed that the decision should be overruled. However, she agreed that the Texas statute banning same-sex sodomy was unconstitutional. She based her conclusion on the Equal Protection Clause, stating that the Court has consistently held that some state objectives, such as harm to a politically unpopular group, are not legitimate state interests.

She asserted that the Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct – and only that conduct – subject to criminal sanction. And the law brands all homosexuals as criminals, thereby making it more difficult for them to be treated in the same manner as everyone else in other areas of their lives (Lawrence, at pp. 2484-88).


Justice Scalia's dissent criticized both the overruling of Bowers and the majority's creation of an “unheard-of form of rational-basis review that will have far-reaching implications beyond this case” (Lawrence, at p. 2488). He found state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity called into question by the overruling of Bowers' validation of laws based on moral choices.

He criticized the majority for grounding its decision on the constitutional right of liberty without expressly finding that the right was fundamental or deeply rooted in the nation's history and tradition, features which he argued were required by the Court's ruling in Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). He found irrelevant the majority's assertion, based on historical evidence, that the original sodomy laws criminalized this behavior regardless of the gender of the actors but were rarely enforced for private conduct, stating that the existence of the laws on the books disproved the notion that the right to engage in sodomy was deeply rooted in the nation's history. And he criticized the majority's focus on “an emerging awareness”, pointing out that this, by definition, is not deeply rooted in the nation's history and tradition. Further, he felt it inappropriate to rely on “values we share with a wider civilization.”

He also disagreed with Justice O'Connor's equal protection analysis. In his view, the statute on its face applies equally to all persons. He acknowledged that it distinguished between the sexes insofar as its application depended on the gender of the partner with whom the sexual acts were performed, but he found this permissible, since states make the same distinction in laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex (Lawrence, at pp. 2495-96).

Finally, he criticized the majority for having “signed on to the so-called homosexual agenda” which he characterized as being directed at “eliminating the moral opprobrium that has traditionally attached to homosexual conduct” (Id., at p. 2497). He pointed out that in most states what the Court called “discrimination” against those who engage in homosexual acts is perfectly legal and that proposals to amend the federal antidiscrimination law to prohibit discrimination against homosexuals have been repeatedly rejected by Congress. In his view, the judgment whether or not to criminalize homosexual acts should lie with the voters, not with “a governing caste that knows best” (Id., at p. 2947).