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''Lawrence v. Texas'', 539 U.S. 558 ( 2003 ), Syllabus, majority opinion, concurrence, and dissents. was a landmark United States Supreme Court case. In the 6-3 ruling, the Justice s struck down the criminal prohibition of Homosexual Sodomy in Texas . The court had previously addressed the same issue in 1986 in '' Bowers V. Hardwick '', but had upheld the 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 homosexual activity between Consent ing Adult s acting in private. It may also invalidate laws against Heterosexual Sodomy based solely on morality concerns. The case attracted much public attention, and a large number of '' Amici Curiae '' ("friends of the court") Brief s were filed. Its outcome was celebrated by Gay Right s advocates, who hoped that further legal advances might result as a consequence. Conversely, it was decried by Social Conservatives as an example of Judicial Activism . HISTORY Prior case law Under the traditional common law, the existence of rights of sexual partners were recognized only in, and through the marriage contract. That is, in common law there was no stand-alone right of anyone to engage in sexual activity, be they male or female, adult or minor. The right to engage in sexual activity was derivative. The right derived from, and was viewed as a consequence of, the existence of a marital contract. And by the common law understanding of a contract, sexual activity was legal in any particular instance, only between the two(2) contracting parties in the contract. Thus, for the individuals who engaged in sex outside of their particular marital contract, there was no legal basis or protection. Their activities were frequently punished by laws prohibiting fornication, adultery, and sodomy, among other crimes. The power to make these laws being based upon the common law idea that the people have the inherent power to proscribe any conduct, they deemed as a matter of public policy, not to be in the individual's or public's interest. By the 1960s, as attitudes towards sexual relations, marriage, and the role of women began to change, taboos against pre-marital sex waned. "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. 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 the 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." The Court was careful to limit 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 recognized in ''Griswold'' "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 all procreative sexual intercourse. In 1973, constitutional abortion rights were found in the highly controversial '' Roe V. Wade '' — thus the area of constitutionally-protected privacy was expanded beyond sex occurring between married partners. 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'' arguing that the majority's conception of liberty was too cramped. 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 Court struck down a Colorado constitutional provision repealing local antidiscrimination ordinances involving sexual orientation. Arrest of Lawrence and Garner The petitioners, medical technologist , 1998 when Harris County sheriff's deputy Joseph Quinn entered the unlocked apartment, with his weapon drawn, arresting the two. The arrests had stemmed from a false report of a "weapons disturbance" in their home — that because of a domestic disturbance or robbery, there was a man with a gun "going crazy." The person who filed the report, neighbor Roger David Nance, then 41, had earlier been accused of harassing the plaintiffs. (Despite the false report, Probable Cause to enter the home was not at issue in the case; Nance later admitted that he was lying, pled No Contest to charges of filing a false police report, and served 15 days in jail.) Lawrence and Garner were arrested, held overnight in jail, and charged with violating Texas's anti- Sodomy statute, the Texas " Homosexual Conduct" law. The law, Chapter 21, Sec. 21.06 of the Texas Penal Code, designated it as a Class C Misdemeanor when someone "engages in deviant sexual intercourse with another individual of the same sex," apparently prohibiting Anal and Oral Sex between members of the same sex, but not between members of the opposite sex. They later posted $200 Bail . On November 20 , Lawrence and Garner pleaded No Contest to the charges. They were convicted by Justice Of The Peace Mike Parrott, but exercised their right to a new trial before a Texas Criminal Court, where they asked the court to dismiss the charges against them on Fourteenth Amendment Equal Protection grounds, claiming that the law was unconstitutional since it prohibits sodomy between same-sex couples, but not between Heterosexual couples, and also on right to privacy grounds (also known as the "substantive Due Process " argument). After the Criminal Court rejected this request, they pleaded no contest, reserving their right to file an Appeal , and were Fine d $125 each (out of a maximum fine of $500 each), plus $141.25 in court costs. On November 4 , 1999 , arguments were presented to a three-judge panel of the Texas Fourteenth Court of Appeals on both equal protection and right to privacy grounds. John S. Anderson and chief justice Paul Murphy ruled in the appellants' favor, finding that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars Discrimination because of sex, race, color, creed, or national origin. J. Harvey Hudson dissented. This 2-1 decision ruled the Texas law was unconstitutional; the full court, however, voted to reconsider its decision, upholding the law's constitutionality 7-2 and denying both the substantive due process and the equal protection arguments. On April 13 , 2001 , the Texas Court Of Criminal Appeals was petitioned to hear the case; the Court, the highest appellate court in Texas for criminal matters, denied review. The case then arrived at the U.S. Supreme Court, with a petition being filed July 16 , 2002 . CONSIDERATIONS The Supreme Court granted a writ of '' Certiorari '' agreeing to hear the case on December 2 , 2002 . Thereafter, a wide array of organizations filed ''amicus curiae'' briefs on behalf of the petitioners as well as the respondents.For a full list of all the organizations and individuals that filed amicus briefs, see here . Paul M. Smith delivered the Oral Argument on behalf of Lawrence on March 26 , 2003 ; the decision was rendered on June 26 . The questions before the court were the following: # 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; and # Whether '' Bowers V. Hardwick '' should be overruled. DECISION 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, "''Bowers'' was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. ''Bowers v. Hardwick'' should be and now is overruled." 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 "the 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. Kennedy was careful however not to extend the opinion to include governmental recognition of such relationships. As Justice Scalia and commentators have noted, the decision did not come from the scrutiny regime imposed by '' West Coast Hotel V. Parrish '' ( 1937 ), which, along with its progeny, established the doctrine that government regulation was constitutional if rationally related to a legitimate government interest (minimum scrutiny, or the "rational-basis" test).Griswold v. Connecticut More important rights could be abridged by government action only if the policy justification substantially furthered an important government interest. O'CONNOR'S CONCURRENCE 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 had been 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. 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 explicitly 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. DISSENTS Justice Antonin Scalia wrote a sharply worded dissent, which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit ''Bowers'', pointing out that there were many subsequent decisions from lower courts based on ''Bowers'' that, with its overturning, might now be open to doubt: More importantly, Scalia noted that the same rationale used to overturn Bowers (looking to (1) "whether its foundations have been 'eroded' by subsequent decisions; (2) it has been subject to 'substantial and continuing' criticism; (3) it has not induced 'individual or societal reliance'") could be applied to overturn the Roe v. Wade decision, which the Justices in the majority in Lawrence had just recently upheld in '' Planned Parenthood V. Casey ''. Scalia also criticizes the writers of the opinion for their unwillingness to give the same respect to the doctrine of '' Stare Decisis '' that some of them applied in Casey . There, Scalia notes, ''stare decisis'' was of the utmost importance, and that there the court gave even more weight to the concept because of the divisive nature of the case. The Lawrence decision "do {Link without Title} not bother to distinguish—or indeed, even bother to mention—the paean to stare decisis coauthored by three Members of today's majority in ''Planned Parenthood v. Casey''. There, when ''stare decisis'' meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it." He goes on to write "Today, however, the widespread opposition to Bowers, a decision resolving an issue as 'intensely divisive' as the issue in Roe, is offered as a reason in favor of overruling it." However, federal courts have recognized that the majority opinion in ''Lawrence'' was a narrow one. In fact, upon rehearing '' Williams V. Pryor '' after Lawrence was decided, the Eleventh Circuit Court Of Appeals concluded: "In short, we decline to extrapolate from ''Lawrence'' and its ''dicta'' a right to sexual privacy triggering strict scrutiny. To do so would be to impose a fundamental-rights interpretation on a decision that rested on rational-basis grounds, that never engaged in Glucksberg analysis, and that never invoked strict scrutiny" Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004). Accordingly, Alabama's ban on the sale of sex toys was upheld. Scalia also averred that, State laws against Bigamy , Same-sex Marriage , adult Incest , Prostitution , Masturbation , Adultery , Fornication , Bestiality , and Obscenity are likewise sustainable only in light of ''Bowers''' validation of laws based on moral choices. With this decision, Scalia concluded, the Court "has largely signed on to the so-called Homosexual Agenda ." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally. In '' Goodridge V. Department Of Public Health '', a later case decided by the Massachusetts Supreme Judicial Court , held that the Massachusetts Constitution requires that marriage be available to homosexual as well as heterosexual couples. In his March 8, 2006 address at the University Of Fribourg in Switzerland , when asked about constitutional rights to gay and lesbian citizens, Scalia said: "Question comes up: is there a constitutional right to homosexual conduct? Not a hard question for me. It's absolutely clear that nobody ever thought when the Bill of Rights was adopted that it gave a right to homosexual conduct. Homosexual conduct was criminal for 200 years in every state. Easy question." Justice Thomas, in a separate short dissenting opinion, wrote that the law which the Court struck down was "uncommonly silly" (a phrase from Justice Potter Stewart 's dissent in '' Griswold V. Connecticut ''), but that he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law. BROADER IMPLICATIONS by the year when they were repealed or struck down. Lighter is earlier; darker is later.]] stated in an interview after the ruling that "the court admitted its mistake in 1986, admitted it had been wrong then...and emphasized today that gay Americans, like all Americans, are entitled to full respect and equal claim to {Link without Title} constitutional rights."http://transcripts.cnn.com/TRANSCRIPTS/0306/26/se.07.html These reactions reflect widespread opinion that ''Lawrence v. Texas'' may ultimately be one of the Supreme Court's more influential decisions. Broader implications of this decision have been speculated, including the following:
Many proponents of same-sex marriage draw upon ''Lawrence'' in their Constitutional reasoning, despite the fact that the High Court stated, " decision does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." ''Lawrence v. Texas'', 539 U.S. 558 (2003). The concurring opinion of Justice O'Connor stated that "preserving the traditional institution of marriage" is indeed a "legitimate state interest" and that "other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." ''Lawrence v. Texas'', 539 U.S. 558 (2003) (O'Connor, J. concurring). Homosexual rights proponents believe that, ''Lawrence'' explicitly analogized homosexual sodomy and heterosexual intercourse, and that ''Lawrence'' severed the link between constitutional protection of sexual conduct and whether the activity is procreative or takes place within the marital relationship or is traditionally protected by society, the logic of ''Lawrence'' casts considerable doubt on laws restricting marriage to opposite-sex couples, notwithstanding the not-so-subtle suggestions in both the majority opinion and in Justice O'Connor's concurrence that the court is not willing to listen to this argument, and that some of the justices (Kennedy and O'Connor specifically) would switch sides to vote with the dissenters in this case if the issue of gay marriage came before them. In fact, subsequent federal and state case law has been quite explicit in limiting the scope of ''Lawrence'' and upholding traditional state regulations on marriage, expressly allowing a marriage-procreation link. (See ''Standhardt v. Superior Court ex rel County of Maricopa'', 77 P.3d 451 (Ariz. App. 2003); ''Morrison v. Sadler'', 2003 WL 23119998 (Ind. Super. Ct.) cert. denied (2003); ''Hernandez v Robles'' (2005 NYSlipOp 25057)). As with all Supreme Court cases, the meaning of ''Lawrence'' will deepen as it is interpreted by lower state and federal courts, legal scholars, and the Supreme Court itself, revealing how broadly its guarantees of liberty extend. Justice Antonin Scalia 's dissent raises the question of whether other prohibitions on the private sexual behavior of consenting adults are unconstitutional, e.g. cases of Incest . In '' Muth V. Frank '', the 7th Circuit declined to extend its reasoning to cases of consensual adult incest, although it did rule that ''Lawrence v. Texas'' was "a new substantive rule and {Link without Title} thus retroactive".
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