Lawrence v. Texas
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Lawrence v. Texas was a landmark Supreme Court case where the Court held, by a vote of 6-3, that a Texas anti-sodomy law, which criminalized homosexual behavior, was unconstitutional. Although the court had addressed the same issue in 1986 (Bowers v. Hardwick where it upheld a similar Georgia statute by ruling there was no constitutional "right to privacy") The majority held that intimate consensual sexual conduct was part of the liberty protected under the Fourteenth Amendment. Lawrence invalidated similar laws throughout the United States criminalizing homosexual activity between consenting adults acting in private.
The case attracted much public attention, and the outcome became cause for celebration within the homosexual rights movement. Conversely, Lawrence v. Texas is consistently derided by conservatives as an extreme example of judicial activism.
Facts of the Case, and Appellate Proceedings
The dilemma in Lawrence arose when a police officer, visiting John Geddes Lawrence's home on an unrelated matter, accidentally observed him engaged in homosexual conduct with his partner. The officer charged a violation of the Texas statute criminalizing sodomy between homosexuals. The statute made it clear that the statute only applied to homosexuals, and defined sodomy as sexual conduct per os or per anum, rather than the narrow understanding of the term in common parlance. Much is made of the actual case itself. For one, it is argued that it was a test-case, deliberately staged by the plaintiffs to challenge the Texas statute.
Although a conviction was upheld at the trial level, the state of Texas quickly lost on appeal to the Texas intermediate appellate court, which sought to prevent the case from going to the federal Supreme Court by giving a quick victory to Lawrence, where it perceived that a likely liberal/moderate alliance would strike down the statute, issuing a landmark victory for gay rights which the Texas Supreme Court sought to avoid. Giving Lawrence a victory, after all, would prevent any incentive to appeal. However, after this decision was reached, the full court sought review of the case, and in a vote of 7 to 2 re-instated the conviction, allowing Lawrence's appeal to the Supreme Court. These sorts of procedural mishaps often attend cases of great constitutional moment.
Previous case law had held that regulations against sodomy were legal. Lawrence specifically overruled Bowers.
On certiorari to the Supreme Court, Justice Anthony Kennedy found the law to be unconstitutional on the grounds of substantive due process, writing an opinion which was joined by Justices David Souter, Ruth Bader Ginsburg, Stephen Breyer, and John Paul Stevens. Kennedy defined Lawrence's rights under the Constitution at a high level of abstraction, arguing that the Texas statute violated the right to intimate conduct in a relationship. Such a definition of the right (accomplished without using the word "privacy," which seems the obvious doctrinal hook to Griswold) avoided defining sodomy itself as a specific & fundamental right, and instead simply stated that the state had no right to intrude upon intimate relationships.
By avoiding defining intimate, private conduct as a fundamental right, Kennedy certainly side-stepped strict scrutiny, forestalling recognizing homosexuals as a class protected by the higher standard of review normally reserved for only race and gender classifications. But it must be argued that Kennedy's opinion is in fact something slightly more than rational basis review, for Kennedy states that enforcing the morality of the majority can never be the state interest advanced by a law - an earth-shattering revelation if referring to rational basis review, but not truly groundbreaking if referencing a higher level of review. Kennedy's opinion, then, is perhaps an iteration of a halfway point between the doctrines, an idea of "rational basis review with teeth," that signifies the Court's willingness to apply strict scrutiny to classifications based on sexuality, but just not yet. In that sense, the opinion is puzzling. It disallows moral legislation, but under exactly what standard of review? The answer is unclear.
While working largely within the framework of due process, Kennedy made overtures to the doctrine of the equal protection clause, suggesting that he imagines conduct (protected by the due process clause) and status (protected by the equal protection clause) in very close harmony with each other in the case of sexuality. If Kennedy imagines conduct and status as similar, and legally almost indistinguishable, he is arguably advancing the legal status of homosexuals even more than the opinion suggests prima facie. Indeed, the doctrinal dovetailing can be seen as reminiscent of the watershed case Loving v. Virginia, which blended due process and equal protection doctrines as allies against racism.
This large victory for gay rights, though, is tempered by the fact that Kennedy explicitly rejects the idea that the holding of the case, or its implications, could be used as a foundation for building a case for gay marriage.
In reaching his opinion, Kennedy noted favorably the international trend in support of gay rights.
Justice O'Connor's concurrence
Justice O'Connor concurred in the outcome of the case, but suggested an equal protection basis for the holding. Specifically, she sought to reconcile her concurrence in this opinion with her concurrence in Bowers v. Hardwick, the case which allowed anti-sodomy laws, and which Lawrence specifically overturns.
To avoid this difficulty, and reconcile the cognitive dissonance it may create, she used the equal protection clause (instead of resting the grounds on substantive due process), and deliberately avoiding using or even implying a strict scrutiny standard, O'Connor applied rational basis review to find that since Texas' sodomy law banned the practice only by gays, it classified without a compelling state interest. She argued that she would uphold Bowers again, today, since it banned sodomy outright, and not only sodomy practiced by homosexuals. In this sense Justice O'Connor furthered her opinion in Romer, by again finding an equal protection basis for protecting homosexual conduct.
Justice Scalia's Dissent
Justice Scalia filed a scathing dissent in this case. He argued that if morality is no longer sufficient justification for regulation, then Lawrence contains the dicta that "ate the rule of law." He further argued that the Court's willingness to overrule Bowers is hypocritical, considering that the doctrine of Roe v. Wade is (in his mind) significantly more flawed and less workable, blasting the Court for being unfaithful to its litmus test for overturning bad law as iterated in the stare decisis & reliance-based holding of Casey v. Planned Parenthood. Scalia ended by criticizing the Court for selling out to the "homosexual agenda."
Scalia also argued that, despite Justice Kennedy's promises, the case clearly opens the door for the constitutional legalization of same-sex "marriage". He was proven right with Anthony Kennedy's betrayal in Obergefell v. Hodges.
- Bowers v. Hardwick, 478 U.S. 186. Justice Brennan sharply dissented from this case, in a dissenting opinion in many ways more liberal than the holding the Court ultimately accepted in Lawrence.
- Pamela S. Karlan, Loving Lawrence, preliminary draft.
- Specifically, Kennedy states that the state may still classify on the basis of morality to regulate "an institution that the law protects." This is commonly understood to mean one thing - marriage.
- Casey v. Planned Parenthood, 505 U.S. 833, opinion of the Court, section III.