Lawrence v. Texas
Lawrence v. Texas: States may not prohibit private homosexual activity between consenting adults
In Lawrence v. Texas, the Supreme Court, in a 6-3 decision, declared unconstitutional a Texas law that prohibited sexual acts between same sex couples. Justice Anthony Kennedy, writing for the majority, held that the right to privacy protects a right for adults to engage in private, consensual homosexual activity. Justice Kennedy's opinion expressly overruled the Court's decision in Bowers v. Hardwick (1986), which had come to an opposite conclusion. Justice Sandra Day O'Connor concurred in the judgment and said that she would not overrule Bowers, but would declare the Texas law unconstitutional on equal protection grounds because it prohibits sexual acts between same sex couples that are allowed between opposite sex couples. Justice Antonin Scalia wrote a dissenting opinion, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, in which he argued that states should be able to make a moral judgment against homosexual conduct and have that enforced through law.
The case arose when police received an anonymous tip of a disturbance in an apartment. The police went to and entered the apartment and discovered two men engaged in homosexual activity. The men were arrested and convicted under a Texas law that prohibits "deviate sexual intercourse." They were fined $200. The Texas Court of Criminal Appeals affirmed their convictions and rejected challenges to the Texas law based on both privacy and equal protection.
Justice Kennedy's majority opinion forcefully declared that there is a fundamental right for consenting adults to engage in private sexual activity. Justice Kennedy said that this right is protected under the word "liberty" in the due process clause of the Fourteenth Amendment. Justice Kennedy spoke eloquently of the importance of this interest. Justice Kennedy wrote: "The Court began its substantive discussion in Bowers as follows: 'The issue presented is 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.' That statement, we now conclude, discloses the Court's own 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 to be said marriage is simply about the right to have sexual intercourse." He further stated: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."
Justice Kennedy explained that the Court has protected the right to privacy under the due process clause since early in the 20th century. Justice Kennedy expressly analogized to Supreme Court precedents protecting the rights to purchase and use contraceptives and right to abortion as aspects of privacy. The Court expressly overruled Bowers v. Hardwick and disputed that decision's conclusion that history supported the ability of states to prohibit private, consensual homosexual activity. The Court thus emphatically held that the Texas sodomy law violated the right to privacy under the due process clause of the Fourteenth Amendment.
Justice O'Connor, who had voted with the majority in Bowers, concurred in the judgment and said that she would not overrule Bowers. Instead, she would invalidate the Texas law because it applied only to same-sex couples. For her, the Georgia law in Bowers was different because it applied both to opposite-sex and same-sex couples.
Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented. He said that the Court was not justified in overruling the precedent of Bowers v. Hardwick. Justice Scalia's dissenting opinion argued that states should be able to make the moral judgment that homosexual conduct is wrong and embody that judgment in criminal statutes.
Lawrence v. Texas is important for many reasons. Thirteen states still have laws prohibiting private, consensual homosexual activity. These laws are now clearly unconstitutional. The decision is obviously an enormous victory for advocates of gay and lesbian rights. More generally, the decision is the strongest to date by the Supreme Court of a fundamental right of adults to engage in consensual sexual activities.
The author, Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science, University of Southern California. He was a Visiting Professor at Duke Law School in the fall 2002 semester.
