Lawrence et al. v. Texas

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Lawrence et al. v. Texas

Legal decision

By: United States Supreme Court

Date: June 26, 2003

Source: Lawrence et al. v. Texas. 539 U.S. 558 (2003). 〈http://caselaw.lp.findlaw.com/scripts/〉 (accessed March 27, 2006).

About the Author: Justice Anthony M. Kennedy of the United States Supreme Court wrote the majority decision in the Lawrence case. By law, the individual justice who prepares the written judgment is deemed to speak for the entire majority side, which in turn represents the binding ruling of the Supreme Court on the case that was the subject of the appeal. In Lawrence et al. v. Texas, Justice Kennedy was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsberg, and Stephen Breyer; Justice Sandra Day O'Connor delivered her own judgment that concurred with the majority. Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented from the majority ruling.

INTRODUCTION

The Texas legal prohibition against homosexual practices that culminated in the 2003 Unites States Supreme Court ruling in Lawrence et al. v. Texas has deeper roots in the soils of the Anglo-American legal traditions than was credited in the court's decision. The shared legal history of England, Canada, and the United States has numerous instances of prosecutorial action directed against homosexuals.

The first sodomy trial in America took place in the colony of Virginia in 1624, when a sea captain named Richard Cornish was executed at Jamestown for alleged "unnatural acts." Five years later, a group of young men accused of sodomy were returned to England from the Virginia colony for execution. In the most famous of all criminal proceedings aimed at a homosexual, novelist and playwright Oscar Wilde was prosecuted and convicted of sodomy in London in 1895. In both England and Canada into the 1980s, there was significant police action taken against bathhouse inmates in various cities, places where gay men often met for consensual sexual purposes.

The trend in the United States regarding the prosecution of certain types of sexual acts performed by homosexual persons was consistent with these common law countries. In 1921, a Florida court characterized homosexuals as "creatures," not humans. The 1986 decision of the United States Supreme Court in the case of Bowers v. Hardwick upheld as constitutional a Georgia law that was virtually identical in its language to that of the Texas statute that was the subject of the Lawrence appeal. At the time that Lawrence was argued in 2003, thirteen American states had laws in force that prohibited sodomy or other sexual acts between homosexual persons.

Although the number of sodomy prosecutions in the United States has been comparatively few, these are proceedings that when initiated tend to galvanize public opinion. These cases do not represent a continuum of prosecutorial activity so much as they constitute a series of legal flashpoints, which engage the polar opposites of the conservative religious elements of American society and secular liberal groups.

Terminology is important in various aspects of how the reasoning of the Supreme Court in Lawrence bears upon wider societal issues. The prosecution in Lawrence, Bowers, and all earlier cases dealt with the sexual acts and homosexual practices in a clinical fashion, addressing the physical nature of the act. Modern consideration of these issues occurs within the multidimensional concept of gay rights, the term "gay" now broadly accepted as an omnibus covering all aspects of same-sex orientation.

In the seventeen years that passed between the Bowers decision and that of Lawrence, a number of different points of contention had arisen with respect to gay rights generally across America. The determination of questions such as gay marriage, adoption, discrimination against gay persons in a variety of circumstances, and pension rights and survivorship rights between gay partners all centered on the central issues at stake in "equality under the law and the right to privacy between consenting adults to act as they may choose."

The importance of each issue is also a function of the size of the American homosexual population. There is significant conflict in the estimates as to its precise size, but it is very likely that three to six percent of the American population is homosexual.

PRIMARY SOURCE

Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S. 186, controlling on that point.

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3-18.

(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement—"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy…" 478 U.S., at 190—discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the con-fines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3-6.

(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U.S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing "ancient roots," ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850. The Nation's laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U.S. 833, 857. Pp. 6-12.

(c) Bowers' deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851—which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education—and Romer v. Evans, 517 U.S. 620, 624—which struck down classbased legislation directed at homosexuals—cast Bowers' holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case's foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828. Bowers' holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855-856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 12-17.

(d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life. Pp. 17-18.

41 S. W. 3d 349, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion.

SIGNIFICANCE

On a literal reading of the facts of the case, Lawrence deals with whether consensual sexual acts between homosexual adults are protected by the Constitution. On a broader view, Lawrence is the most significant decision ever rendered by the United States Supreme Court with respect to the modern concept of gay rights.

At the heart of the Supreme Court's ruling is the examination of what constitutes due process, a multidimensional legal concept that includes the protection for both the rights of individuals to equality before the law, as well as the right to privacy. The definition of due process is not always capable of dictionary-style precision, as each case will present unique features that may affect the application of the due process doctrine. Due process is a template within which all laws must fit; Daniel Webster (1782–1852), the noted American statesman and lawyer, defined due process as a law that is not unreasonable, arbitrary, or capricious, one that "hears before it condemns."

The Fourteenth Amendment to the United States Constitution codifies due process as a prohibition against any state from depriving any citizen of life, liberty, or property, without due process, or to deny such persons equal protection under the law. The Texas statute examined in Lawrence specified a variety of homosexual practices as deviant sexual intercourse and thus illegal; such acts were not prohibited if the acts were engaged in by consenting heterosexuals. There was evidence before the court that the Texas statute was rarely enforced; the accused parties in Lawrence seem to have been the subject of a selective investigation by the Houston police, given that there was no evidence of any other criminal conduct to require the attendance of the police at the defendant's residence at the time that the sexual activity was observed.

It is significant that through the Lawrence ruling, the Supreme Court emphatically overruled its own decision from only seventeen years before, Bowers. Bowers was a similar appeal which considered the application of a Georgia state prohibition against homosexual acts that was virtually identical to that of the Texas statute. It is common for courts in the Anglo-American tradition, when faced with legal issues that are substantially the same as those determined in a prior case, to invoke the principle of stare decisis, a Latin maxim that is a legal short form for a court's ability to stand by an earlier precedent, and to not disturb a settled legal point. The Supreme Court's willingness to depart from the ruling in Bowers is as much a testament to changing American public opinion between 1986 and 2003 regarding the rights of anyone, including gay persons to live as they choose, as it is any other legal principle. It is rare for a court, as the Supreme Court did in Lawrence, to state that Bowers was not only wrongly decided as of 2003, it was wrongly decided when the Supreme Court made its ruling in 1986.

It is of interest that while many elements of the various conservative religious movements of the United States denounced Lawrence as permitting wickedness to occur in any community, the Court does not attempt to define moral or immoral conduct in its judgment. It is also evident from the ruling that as with any other freedom, there are limits presumed in law while permitting the conduct; predatory persons, non-consensual acts, and sexual acts with minors would never be protected under the language of the 14th Amendment.

The Lawrence decision carried special significance for Lambda Legal, the organization that provided the legal counsel who represented the accused appellants in all appeal proceedings. Lambda Legal is a national legal advocacy organization created in 1973 with a specialty in the pursuit of civil rights for lesbians and gays. Lambda Legal took the Lawrence appeal as a test case through which to advance its wider philosophical position regarding equal rights.

Given the strong language in the Lawrence decision regarding equality and privacy, one may question whether this particular moral battle is now exhausted. It seems likely that organizations such as Lambda Legal and the forces of American religious conservatism will each turn their attention to the more impactful issues arising from the sanction and extension of gay marriage, the availability of adoption to gay couples, and the ability of gay partners to advance survivor and estate claims.

The Lawrence decision echoes the famous utterance of former Canadian prime minister Pierre Trudeau, who said in 1968 that "The state has no business in the nation's bedrooms." Given the temper of modern American society, it is doubtful that the Supreme Court would ever permit the future enforcement of any legislation that was enacted to differentiate between the consensual sexual practices of any American citizens.