Lawrence v. Texas, 539 U.S. 558 (2003), is a landmark decision of the United States Supreme Court in which the Court ruled that U.S. state laws criminalizing sodomy between consenting adults are unconstitutional. The Court reaffirmed the concept of a "right to privacy" that earlier cases had found the United States Constitution provides, even though it is not explicitly enumerated. It based its ruling on the notions of personal autonomy to define one's own relationships and of American traditions of non-interference with any or all forms of private sexual activities between consenting adults.
In 1998, John Geddes Lawrence Jr. was arrested along with Tyron Garner at Lawrence's apartment in Harris County, Texas. Garner's former boyfriend had called the police, claiming that there was a man with a weapon in the apartment. Sheriff's deputies said they found the men engaging in sexual intercourse. Lawrence and Garner were charged with a misdemeanor under Texas' anti-sodomy law; both pleaded no contest and received a fine. Assisted by the American civil rights organization Lambda Legal, Lawrence and Garner appealed their sentences to the Texas Courts of Appeals, which ruled in 2000 that the sodomy law was unconstitutional. Texas appealed to have the court rehear the case en banc, and in 2001 it overturned its prior judgment and upheld the law. Lawrence appealed this decision to the Texas Court of Criminal Appeals, which denied his request for appeal. Lawrence then appealed to the U.S. Supreme Court, which agreed to hear his case.
The Supreme Court struck down the sodomy law in Texas in a 6–3 decision, and by extension invalidated sodomy laws in 13 other states, thus protecting from governmental regulation throughout the U.S. all forms of private, consensual sexual activity between adults. In the same case, the Court overturned its previous ruling in the 1986 case Bowers v. Hardwick, where it had upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy. It explicitly overruled Bowers, holding that the previous ruling had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
The case attracted much public attention, and 33 amici curiae ("friends of the court") briefs were filed. Its outcome was celebrated by gay rights advocates, and set the stage for further reconsideration of standing law, including the landmark cases of United States v. Windsor (2013), which invalidated Section 3 of the Defense of Marriage Act, and Obergefell v. Hodges (2015), which recognized same-sex marriage as a fundamental right under the United States Constitution.
Background
Legal punishments for sodomy often included heavy fines, prison sentences, or both, with some states, beginning with Illinois in 1827, denying other rights, such as suffrage, to anyone convicted of the crime of sodomy. In the late 19th and early 20th centuries, several states imposed various eugenics laws against anyone deemed to be a "sexual pervert". As late as 1970, Connecticut denied a driver's license to a man for being an "admitted homosexual".
As of 1960, every state had an anti-sodomy law. In 1961, the American Law Institute's Model Penal Code advocated the repeal of sodomy laws as they applied to private, adult, consensual behavior. Two years later the American Civil Liberties Union (ACLU) took its first major case in opposition to these laws.
In Griswold v. Connecticut (1965), the Supreme Court struck down a law barring the use of contraceptives by married couples. In Griswold, the Supreme Court recognized for the first time that couples, at least married couples, had a right to privacy, drawing on the Fourth Amendment's protection of private homes from searches and seizures without a warrant based on probable cause, the Fourteenth Amendment's guarantee of due process of law in the states, and the Ninth Amendment's assurance that rights not specified in the Constitution are "retained by the people". Eisenstadt v. Baird (1972) expanded the scope of sexual privacy rights to unmarried persons. In 1973, in Roe v. Wade the US Supreme court extended that right to privacy to protect a woman's right to have an abortion, although the extent to which that might be regulated by the government varied, with almost absolute protection in the first trimester, and allowing for increasing regulation as the pregnancy progressed.
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 in a 5 to 4 decision. Justice Byron White's majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a right to sodomy. Justice Blackmun, writing in dissent, argued that Eisenstadt held that the Constitution protects people as individuals, not as family units. He then reasoned that because state intrusions are equally burdensome on an individual's personal life regardless of his marital status or sexual orientation, there is no reason to treat the rights of citizens in same-sex couples any differently.
By the time of the Lawrence decision, ten states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Michigan, Utah, and Virginia—still banned consensual sodomy without respect to the sex of those involved, and four—Texas, Kansas, Oklahoma, and Missouri (partially)—prohibited same-sex couples from engaging in anal and oral sex.
History
Arrest of Lawrence and Garner
On September 17, 1998, John Geddes Lawrence Jr., a gay medical technologist, was hosting two gay acquaintances, Tyron Garner and Robert Eubanks, at his apartment at 794 East Normandy Street, in northeast Harris County, Texas, east of the Houston city limits. Lawrence and Eubanks had been friends for more than 20 years. Garner and Eubanks had had an intermittent romantic relationship since 1990. Lacking transportation home, the guests were preparing to spend the night. Eubanks, who had been drinking heavily, left to purchase a soda from a nearby vending machine. Apparently outraged that Lawrence had been flirting with Garner, he called police and reported "a black male going crazy with a gun" at Lawrence's apartment.
Four Harris County sheriff's deputies responded within minutes and Eubanks pointed them to the apartment. They entered the unlocked apartment toward 11 p.m. with their weapons drawn. In accordance with police procedures, the first to arrive, Joseph Quinn, took the lead both in approaching the scene and later in determining what charges to bring. He later reported seeing Lawrence and Garner having anal sex in the bedroom. A second officer reported seeing them engaged in oral sex, and two others did not report seeing the pair having sex. Lawrence repeatedly challenged the police for entering his home. Quinn had discretionary authority to charge them for a variety of offenses and to determine whether to arrest them. When Quinn considered charging them with having sex in violation of state law, he had to get an Assistant District Attorney to check the statutes to be certain they covered sexual activity inside a residence. He was told that Texas' anti-sodomy statute, the "Homosexual Conduct" law, made it a Class C misdemeanor if someone "engages in deviate sexual intercourse with another individual of the same sex". The statute, Chapter 21, Sec. 21.06 of the Texas Penal Code, had been adopted in 1973 when the state revised its criminal code to end its proscription on heterosexual anal and oral intercourse.
Quinn decided to arrest Lawrence and Garner and charge them with having "deviate sex". In the separate arrest reports he filed for each, he wrote that he had seen the arrestee "engaged in deviate sexual conduct namely, anal sex, with another man". Lawrence and Garner were held in jail overnight. At a hearing the next day, they pleaded not guilty to a charge of "homosexual conduct". They were released toward midnight, after posting a bail of $200. Eubanks pleaded no contest to charges of filing a false police report. He was sentenced to 30 days in jail but was released after serving just 15 days of his sentence.
At the time of the arrest, prosecuting this offense was rare for people in their own residences. District Attorney John B. Holmes, said that only "two or three" sodomy cases had been pursued in the county since 1958, and all involved inmates in the county jail.
Prosecution and appeals
The gay rights advocates from Lambda Legal litigating the case convinced Lawrence and Garner not to contest the charges and to plead no contest instead. On November 20, Lawrence and Garner pleaded no contest to the charges and waived their right to a trial. Justice of the Peace Mike Parrott found them guilty and imposed a $100 fine and court costs of $41.25 on each defendant. When the defense attorneys realized that the fine was below the minimum required to permit them to appeal the convictions, they asked the judge to impose a higher penalty. Parrott, well aware that the attorneys intended to use the case to raise a constitutional challenge, increased it to $125 with the agreement of the prosecutor.
To appeal, Lawrence and Garner needed to have their cases tried in Harris County Criminal Court. Their attorneys asked the court to dismiss the charges against them on Fourteenth Amendment equal protection grounds, claiming that the law was unconstitutional since it prohibited sodomy between same-sex couples, but not between heterosexual couples. They also asserted a right to privacy and that the Supreme Court's decision in Bowers v. Hardwick that found no privacy protection for consensual sex between homosexuals was "wrongly decided". On December 22, Judge Sherman Ross denied the defense motions to dismiss. The defendants again pleaded "no contest". Ross fined them $200 each, the amount agreed upon in advance by both sides.
A three-judge panel of the Texas Fourteenth Court of Appeals heard the case on November 3, 1999. Their 2–1 decision issued on June 8, 2000, ruled the Texas law was unconstitutional. Justice John S. Anderson and Chief Justice Paul Murphy found that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on sex, race, color, creed, or national origin. J. Harvey Hudson dissented. The Court of Appeals decided to review the case en banc. On March 15, 2001, without hearing oral arguments, it reversed the three-judge panel's decision and upheld the law's constitutionality 7–2, denying both the substantive due process and equal protection arguments. Attorneys for Lawrence and Garner asked the Texas Court of Criminal Appeals, the highest appellate court in Texas for criminal matters, to review the case. After a year's delay, on April 17, 2002, that request was denied. Lambda Legal's Harlow called that decision "a major abdication of judicial responsibility". Bill Delmore, the Harris County prosecutor who argued the case, called the judges "big chickens" and said: "They have a history of avoiding the hot potato cases if they can."
Consideration by the Supreme Court
In a petition for certiorari filed in the U.S. Supreme Court on July 16, 2002, Lambda Legal attorneys asked the Court to consider:
- Whether the petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws;
- Whether the petitioners' criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment;
- Whether Bowers v. Hardwick should be overruled.
On December 2, 2002, the Court agreed to hear the case. Lambda Legal coordinated the submission of sixteen amicus curiae briefs to complement their own brief. Submitting organizations included the American Bar Association, the American Psychological Society, the American Public Health Association, the Cato Institute, the Log Cabin Republicans, a group of history professors, and a group of religious denominations. An op-ed in support by former Senator Alan Simpson appeared in The Wall Street Journal on the morning scheduled for oral argument. The attorneys for Texas did not control the amicus briefs submitted in support of their position by representatives of religious and social conservatism, including Jay Alan Sekulow and Robert P. George. Several, including that of Liberty Counsel, depicted homosexuals as self-destructive, disease-prone, and promiscuous. The states of Alabama, South Carolina, and Utah advised the Court that unlike heterosexual sodomy, homosexual sodomy had "severe physical, emotional, psychological, and spiritual consequences".
At oral argument on March 26, 2003, Paul M. Smith, an experienced litigator who had argued eight cases before the Supreme Court, spoke on behalf of the plaintiffs. Texas Attorney General John Cornyn, then a candidate for the U.S. Senate, refused to have his office argue the case. Charles A. Rosenthal, District Attorney of Harris County, represented the state. His performance was later described as "the worst oral argument in years", but some believe his lack of preparation reflected his lack of enthusiasm for the statute he was defending.
Decision
On June 26, 2003, the Supreme Court issued a 6–3 decision in favor of Lawrence that struck down Texas's statute. Five justices held it violated the Due Process Clause, while a sixth, Sandra Day O'Connor, held it violated the Equal Protection Clause.
Opinion of the Court
Five justices formed the majority and joined an opinion written by Justice Anthony Kennedy. The Court ruled that Texas's law prohibiting private homosexual activity between consenting adults violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The Court did not describe private sexual activity as a fundamental right requiring the "strict scrutiny" standard of judicial review, but rather focused on why its previous decision in Bowers v. Hardwick had been wrong.