In 1986, the Supreme Court had upheld Georgia’s anti-sodomy law in Bowers v. Hardwick.
The Bowers Court framed the issue as a question of whether homosexuals had a fundamental,
constitutional right to engage in sodomy; the Court held unequivocally that they did
not.
Ever since, gay rights activists had been looking to challenge that precedent, and that
chance arrived in 2003 in Lawrence v. Texas.
In response to a weapons disturbance call, police officers entered John Lawrence’s
home.
Officers claimed to have observed Lawrence engaged in anal sex with Tyron Garner.
The men were arrested and charged under the Texas anti-sodomy law, which prohibited oral
or anal sex between two members of the same sex.
Lawrence and Garner were convicted and fined $200.
Lawrence appealed, and a divided Court of Appeals for the Texas Fourteenth Division,
sitting en banc, affirmed the conviction based on the precedent set in Bowers v. Hardwick.
Lawrence’s petition to the Supreme Court for certiorari was granted.
Writing for the majority, Justice Kennedy set aside the conviction, invalidated the
Texas law, and overturned Bowers v. Hardwick.
Kennedy asserted that the foundation of Bowers had been eroded by subsequent Supreme Court
rulings recognizing the constitutional protection for personal autonomy in marriage, procreation,
family relationships, and expressly rejecting class-based legislation excluding homosexuals
from protections of state antidiscrimination laws.
Unlike the Georgia statute in Bowers, which criminalized sodomy between all couples, the
Texas statute in Lawrence criminalized sodomy only between homosexuals.
Nevertheless, the Court declined to analyze the issue on equal protection grounds, because
that might mean that wording the statute to include homosexual and heterosexual couples
would solve the problem.
Instead, the Court concluded that the liberty guaranteed by the Due Process Clause of the
Fourteenth Amendment extended to the intimate acts of consenting adults committed in private,
including homosexual acts, and Texas had no legitimate interest that warranted infringing
that right.
Justice O’Connor concurred with the majority that the Texas statute should be struck down,
but would not have overturned Bowers.
O’Connor argued Texas’s law violated the Equal Protection Clause, because the sex acts
were criminalized only when performed by same-sex couples.
O’Connor argued that the law served no legitimate purpose other than a ‘bare desire to harm
a politically unpopular group.’
Had the statute applied to both heterosexual and homosexual couples, the Texas law might
have passed constitutional muster.
Justice Scalia dissented, arguing that under the principle of stare decisis, the Court
should follow Bowers and uphold the Texas law.
Scalia took issue with the majority’s consideration of public opinion and foreign laws.
Scalia further argued that the Court’s ruling would have far-reaching effects in muddying
the waters of rational basis review, impeding states’ ability to regulate morality, and
paving the way for a constitutional right to homosexual marriage.
Justice Thomas dissented to say that the law was “uncommonly silly” and should be repealed,
but was entirely constitutional, since there is no general right to privacy or “liberty
of the person…in spatial and more transcendent dimensions.”
Lawrence v. Texas is a landmark civil rights case, which recognized the sea change in American
attitudes toward homosexuality.
Justice Powell’s statement around the time of the Bowers decision that he had “never
met a homosexual,” stands in stark contrast to the tone of Justice Kennedy’s opinion
in Lawrence, where the Court recognized that homosexual relationships are anchored by the
same elements as heterosexual ones, stating, “When sexuality finds overt expression in
intimate conduct, the conduct can be but one element in a bond that is more enduring.”
Even Justice O’Connor, who had voted to uphold the Georgia law in Bowers, seemed to
have shifted her own views somewhat by the time of the Lawrence decision, when she gave
a baby gift to one of her former law clerks who had just become a parent with her same-sex
partner.