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Lawrence v. Texas , 539 U.S. 558 (2003), was a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the sodomy law in Texas. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick , where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.
Lawrence explicitly overruled Bowers , holding that it had viewed the liberty interest too narrowly. The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize sodomy between consenting same-sex adults acting in private. It also invalidated the application of sodomy laws to heterosexual sex.
The case attracted much public attention, and a large number of amici curiae ("friends of the court") briefs were filed. Its outcome was celebrated by gay rights advocates, who hoped that further legal advances might result as a consequence.
History
Prior case law
Under the common law, the existence of rights of sexual partners were recognized through the marriage contract. That is, in common law there was no stand-alone right to engage in sexual activity, be they male or female, adult or minor. But, it is a basic legal principle under the common and statutory laws that everything that is not forbidden by the common and statutory law is allowed. As sexual acts usually take place in private, few cases involving engagement in sodomy and fornication came before the courts, and no precedent was established under the common law forbidding fornication; with sodomy, the common law was mixed.
The common law came from Great Britain with the British colonists, and upon the American Revolution, became the law of the United States, except where contradicted by statute, or, above all, the Constitution. Because fornication and sodomy were viewed as evil, several U.S. jurisdictions passed statutes forbidding them.
The precise legal definition of state law prohibiting sodomy (or "crimes against nature") was a frequent legal dispute in the United States as early as the early 1800s. Some state courts ruled that the law only applied to anal sex, while other State courts ruled that their sodomy prohibition also included oral sex.
Legal punishments often included heavy fines and or long prison sentences, with some states (Illinois being the first in 1827) specifically denying other rights, such as suffrage, to anyone convicted of the crime of sodomy. In the late nineteenth and early twenty centuries, several states imposed various eugenics laws against anyone deemed to be a "sexual pervert". As late as 1970, Connecticut denied at least one driver’s license to a man for being an "admitted homosexual".
An organized American gay rights movement emerged in the 1950s, and sought to change, among other things, the various criminal laws used against gay Americans. Sex researcher Alfred Kinsey was one of the early, well known, post-war proponent of reforming these criminal laws, yet few lawyers or judges expressed much public support.
In 1961 the American Law Institute's Model Penal Code expressly advocated repealing sodomy laws as they applied to private, adult and consensual behavior. Yet, it would be a few years later before the ACLU took its first major case in opposition to these laws. Most judges were largely unsympathetic to the substantive due process claims raised.
In 1964, Indiana Supreme Court Justice Amos Jackson became the first appointed State Judge to write a dissent criticizing sodomy laws, and he would continue to oppose the laws in his dissents until he retired in 1970.
By the 1960s, attitudes towards sexual relations, marriage, sexual orientation, and the role of women began to change. This was sped along with the advent of safe and effective birth control devices and medicines. Attitudes strongly discouraging premarital sex decreased in intensity. "No-fault" divorce laws made getting divorces easier, and the number of unmarried partners living together (a relationship formerly frowned upon) soared. As part of this change in societal norms, the acceptance of same-sex relationships and the number of people openly seeking such relationships increased, to the point that many states repealed their sodomy laws in the 1970s. Also at this time, Great Britain's 1957 Wolfenden Report recommended the repeal of British sodomy laws. Ten years later, Britain's Sexual Offences Act 1967 did liberalize British sex crime laws, though it was not a total equalization between gay and straight couples.
In Griswold v. Connecticut (1965), the Supreme Court struck down a law barring the use of contraceptives by married couples. Griswold was the first Supreme Court case to recognize a right to privacy, which was based not on any specific guarantee in the Bill of Rights, but was part of "penumbras, formed by emanations from those guarantees that help give them life and substance", established through case law. Such penumbras include: the Fourth Amendment, which protects private homes from searches and seizures without a warrant based on probable cause; the Fifth Amendment, which prohibits the deprivation of liberty without due process of law; and the Ninth Amendment, which specifies that the enumerated rights in the Bill of Rights cannot be construed as being an exhaustive list of rights. The Court limited its recognition of this right to married couples. Eisenstadt v. Baird , decided in 1972, potentially expanded the scope of sexual privacy rights by holding in dicta that if the "right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." This gave constitutional protection to unmarried persons using and purchasing birth control. In 1973, the choice whether or not to have an abortion was found to be protected by the Constitution in the extraordinarily controversial Roe v. Wade .
In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home. The Court rejected this challenge by a 5 to 4 vote. Justice Byron White's majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that longstanding moral antipathy toward homosexual sodomy was enough to argue against the notion that the Framers of the Constitution would have envisioned a "right" to sodomy. If the court were to hold otherwise, Justice White argued, the Court would be substituting its own moral judgments for those of the people's elected representatives.
Justice Blackmun wrote a dissent in Bowers , in which he argued that the majority's conception of liberty was too narrow. He used the Court's recent precedents on freedom of intimate association, such as Roberts v. U.S. Jaycees (1984), to advocate for a more open-ended balancing test in such cases.
Justice Stevens also believed that the majority had defined the right at stake too narrowly. He filed a dissent, based not on the Court's intimate association cases, but on a thorough analysis of the Court's substantive Due Process liberty cases. Justice Stevens interpreted Eisenstad as fundamentally affecting the scope and nature of substantive Due Process liberty rights, based on the idea that the Constitution protects people as individuals, not as family units. He summarized the Court's then existing substantive Due Process liberty right as such: "ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." He then reasoned that because state intrusions are equally burdensome on an individual's personal life regardless of his marital status or sexual orientation, then there is no reason to treat the rights of citizens in same-sex couples any differently. Thus, Justice Stevens would have applied the substantive Due Process liberty protection equally, "regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes." In 2003, the Lawrence majority relied heavily on Justive Stevens' Bowers dissent, and ultimately decided that "Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today."
The Kentucky Supreme Court declined to follow the Court's analysis in Kentucky v. Wasson (1992), striking down its state's sodomy law on the basis of its state constitution. In 1996's Romer v. Evans , the U.S. Supreme Court struck down a Colorado constitutional provision repealing local antidiscrimination ordinances involving sexual orientation.
Arrest of Lawrence and Garner
The petitioners, John Geddes Lawrence, a medical technologist, then age 55, and Tyron Garner (1967–2006), then 31, were alleged to have been engaging in consensual anal sex in Lawrence's apartment in the outskirts of Houston between 10:30 and 11 p.m. on September 17, 1998 when Harris County sheriff's depu
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