Lawrence v. Texas: Encyclopedia II - Lawrence v. Texas - Considerations

Lawrence v. Texas - Considerations

The Supreme Court granted a writ of certiorari agreeing to hear the case on December 2, 2002. A wide array of organizations filed amicus curiae briefs on behalf of the petitioners as well as the respondents.¹

Oral argument was heard in the case on March 26, 2003; the decision was rendered on June 26. The questions before the court were the following:

1. 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;
2. 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; and
3. Whether Bowers v. Hardwick should be overruled.

The Supreme Court voted 6-3 to strike down the Texas law, with the five-justice majority saying it violated due process guarantees. The majority opinion, which overrules Bowers v. Hardwick, covers similar laws in 12 other states. Justice Anthony Kennedy wrote the majority opinion; Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. Kennedy spent most of his opinion casting doubt on the factual findings of the court in Bowers, that homosexual sodomy is a widely and historically condemned practice. For example, Kennedy cited a 1981 European Court of Human Rights case Dudgeon v. United Kingdom, as part of its argument against the Bowers court's finding that Western civilization condemned homosexuality. Chief Justice Burger, concurring in Bowers, had held that "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization"; Kennedy's citation of European law was in part a response to this blanket citation of the values of "Western civilization."

The court concluded that

The majority decision found that "the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections." Holding that "[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," the court struck down the anti-sodomy law as unconstitutional. Kennedy's opinion crucially grounded the right of consenting adults to have sex on how intimate and personal the conduct was to those involved, not on the conduct being traditionally protected by society (as in Bowers), procreative (as in Eisenstadt and Roe), or conducted by married people (as in Griswold). This opened the door in theory to protection of a whole host of sexual activity between consenting adults not protected by other decisions.

Justice Sandra Day O'Connor filed a concurring opinion, agreeing with the invalidation of the Texas anti-sodomy statute, but not with Kennedy's rationale. O'Connor disagreed with both the overturning of Bowers (she was in the Bowers majority) and with the court's invocation of due process guarantees of liberty in this context. O'Connor instead preferred the equal protection argument which would still strike the law because it was directed against a group rather than an act, but would avoid the inclusion of sexuality under protected liberty.

Under this argument, O'Connor maintained that a sodomy law that was neutral both in effect and application might well be constitutional, but that there was little to fear because "democratic society" would not tolerate it for long. She did leave the door open for laws which distinguished between homosexuals and heterosexuals on the basis of legitimate state interest, but found that this was not such a law. In some ways, however, O'Connor's opinion was broader than the majority's, for as Justice Scalia noted in dissent it explicitly cast doubt on whether laws limiting marriage to heterosexual couples could pass rational-basis scrutiny. However, O'Connor explicity noted in her opinion that a law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to preserve traditional marriage, and not simply based on the state's dislike of homosexual persons.

Adapted from the Wikipedia article "Considerations", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki