Homosexuality and the Constitution: A Legal Analysis of the Supreme Court Ruling in Lawrence v. Texas
Released: 2005-05-26T00:00:00

I. Introduction

In a sweeping decision issued on June 26, 2003, the Supreme Court struck down a Texasstate statute that made it a crime for homosexuals to engage in certain private sex acts. Specifically,the Court's ruling in Lawrence v. Texas held that the due process privacy guarantee of the FourteenthAmendment extends to protect consensual gay sex. (1) Although the Court also considered whether the Texas state statuteviolated the constitutional right to equal protection, the Court ultimately based its ruling on broaderprivacy grounds. In addition, the Court also overturned its 1986 decision in Bowers v. Hardwick , acontroversial case in which the Court ruled that there was no constitutional right to privacy thatprotects homosexual sodomy. This report provides an overview of the Supreme Court's opinion in Lawrence v. Texas , coupled with a discussion of its implications for future cases involving gay rights in general and same-sex marriage in particular. For a more detailed discussion of currentdevelopments regarding gay marriage, see CRS Report RL31994 , Same-Sex Marriages: LegalIssues , by [author name scrubbed].

Background in Lawrence v. Texas

In 1998, sheriff's officers, responding to a false report of a weapons disturbance, entered theprivate residence of John Geddes Lawrence, found Lawrence and Tyron Garner engaged inconsensual sex, and arrested the two men for violating a Texas statute that prohibits homosexualsodomy. (2) Under the Texaspenal code, "a person commits an offense if he engages in deviate sexual intercourse with anotherindividual of the same sex;" (3) "deviate sexual intercourse" is defined to include oral or analsex. (4)

Following their convictions, Lawrence and Garner challenged the statute on constitutionalequal protection and due process privacy grounds. Although a panel of the Court of Appeals of Texasruled in their favor, the full Court of Appeals, sitting en banc , reversed, thereby reaffirming theoriginal convictions. (5) When the Texas Court of Criminal Appeals refused to review the case, Lawrence and Garnerappealed to the U.S. Supreme Court. (6) The Supreme Court granted certiorari, (7) and ultimately struck downthe state statute, thereby reversing the Court of Appeals of Texas. (8)

Sodomy Laws in Other States

At the time of the Lawrence decision, twelve other states, in addition to Texas, hadanti-sodomy laws on their books. However, of the thirteen states with anti-sodomy laws, only fourstates, including Texas, had laws that criminalized sodomy between same-sex couples but notbetween heterosexual partners. (9) The remaining states with anti-sodomy laws criminalized sodomyfor all couples, regardless of whether they consisted of same-sex or opposite-sex partners.

Notably, the number of states with anti-sodomy laws had declined significantly in the nearlytwo decades since the landmark Bowers v. Hardwick case upheld a Georgia law that outlawedhomosexual sodomy in 1986. At that time, 24 states and the District of Columbia had anti-sodomylaws on the books, but half of those states, including Georgia, subsequently legislatively repealedor judicially overturned their respective anti-sodomy statutes. (10) By overturning Bowers andby deciding Lawrence on privacy grounds, the Supreme Court simultaneously overturned all stateanti-sodomy laws, including statutes that do not distinguish between heterosexual and homosexualcouples.

Past Supreme Court Decisions in Gay Rights Cases: Bowers v. Hardwick and Romer v. Evans

The Supreme Court's decision in Lawrence v. Texas marks one of the few instances in whichthe Court has agreed to participate in a wider legal debate surrounding "gay rights." Indeed, over thepast two decades, the Supreme Court has heard relatively few cases involving such issues. (11) Of the gay rights cases thatthe Court has heard, two cases, namely Bowers v. Hardwick (12) and Romer v. Evans , (13) are of particularsignificance to the outcome in Lawrence and are therefore discussed in greater detail in thissection. (14)

In Bowers v. Hardwick , the Supreme Court considered a challenge to a Georgia statute thatcriminalized both homosexual and heterosexual sodomy. Ruling that the Due Process clause of theFourteenth Amendment did not provide a fundamental right to engage in consensual homosexualsodomy, even in the privacy of one's own home, the Court upheld the Georgia statute. (15) Although other SupremeCourt rulings have recognized a due process right of privacy that protects personal decisionsregarding activities such as marriage, contraception, and procreation from governmentinterference, (16) the Bowers decision essentially refused to recognize a similar right of privacy to protect individualsengaged in homosexual sodomy.

The other Supreme Court case shaping the Court's decision in Lawrence is Romer v. Evans .Decided in 1996, Romer held that Amendment 2 of the Colorado Constitution, which barredlocalities from enacting civil rights protections on the basis of sexual orientation, violated the EqualProtection Clause of the Fourteenth Amendment. (17) Although classifications based on sexual orientation do notreceive the heightened constitutional scrutiny normally reserved for review of suspect classificationssuch as race or gender, the Court in this case nevertheless determined that the Colorado amendmentviolated the guarantee of equal protection because the law was motivated strictly by animus forhomosexuals and because there was otherwise no rational basis for enacting such a sweepingrestriction on the legal rights of gays and lesbians. According to the Court:

We must conclude that Amendment 2 classifieshomosexuals not to further a proper legislative end but to make them unequal to everyone else. ThisColorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment2 violates the Equal Protection Clause. (18)

Despite the fact that Bowers and Romer were decided on different constitutional grounds,both of the cases involved issues that were raised in the Lawrence case. Ultimately, the SupremeCourt overruled its decision in Bowers , holding that the due process right to privacy extends toprotect private, consensual sexual activity. Although Justice Sandra Day O'Connor, who originallyvoted with the majority to uphold the Georgia statute at issue in Bowers , did not join in the 5-4decision to overrule that case, she did agree with the majority's decision to strike down the Texasstatute for different reasons. In a separate opinion reminiscent of the Court's ruling in Romer ,O'Connor indicated that she was voting to strike down the Texas sodomy law as a violation of theconstitutional guarantee of equal protection (19) . The Court's opinion, O'Connor's concurrence, and the dissent'sargument are detailed in the following section.

II. Supreme Court Review

In their petition seeking Supreme Court review, attorneys for Lawrence and Garner posedthree questions to the Court: (1) did the Texas statute violate the Equal Protection Clause of theFourteenth Amendment; (2) did the Texas statute violate the right to privacy embedded in the DueProcess Clause of the Fourteenth Amendment; and (3) should Bowers be overruled? (20) The Court's considerationof these and other issues is discussed in the following section.

Bowers v. Hardwick and the Right to Privacy

Under the second question presented in Lawrence -- which formed the basis for the Court'seventual ruling -- the Supreme Court was faced with the question of whether or not the homosexualsodomy statute violates the right to privacy embedded in the Due Process Clause of the FourteenthAmendment. Because the Bowers v. Hardwick case specifically considered the same issue, theCourt's decision on the privacy question likewise affected the Court's decision on the third and finalquestion -- whether or not to overrule Bowers . The Court ultimately overruled Bowers and held thatgovernment interference with a private and intimate consensual adult activity is a violation of thedue process right to privacy. This section describes the Court's reasoning and discusses the dissent'sresponse.

The Court began its analysis in Lawrence by summarizing its substantive due process privacydoctrine. Under the Supreme Court's privacy jurisprudence, the Court has recognized a constitutionalright to privacy despite the fact that this right is not specifically enumerated in the Constitution. In Bowers , for example, the Court noted that the Due Process right to privacy protects from governmentinterference a wide range of personal decisions regarding issues such as child rearing, familyrelationships, procreation, marriage, contraception, and abortion. (21) This right to privacy isgrounded in the notion that certain freedoms are so "fundamental" or "implicit in the concept ofordered liberty" that "neither liberty nor justice would exist if they were sacrificed." (22) Alternatively, certainliberties may be deemed fundamental because they are "deeply rooted in this Nation's history andtradition." (23) Becausethese two tests do not always articulate clear standards for determining when a liberty is so"fundamental" that it deserves constitutional protection under the Due Process Clause, extending theright to privacy to liberties that have not previously been deemed fundamental by the Court, such asa right to engage in consensual homosexual sodomy, can sometimes prove controversial.

After outlining its privacy jurisprudence, the Court set forth its reasons for reconsidering itsdecision in Bowers . Of primary importance to the Court was the idea that the Bowers Court had"misapprehended the claim of liberty there presented to it." (24) In the Lawrence Court'sview, the issue in Bowers was about more than a fundamental right to engage in homosexualsodomy. Rather, the case was about whether or not individuals have the right to make personalchoices regarding their intimate relationships free of government interference. (25) Although the Lawrence Court did not explicitly deem homosexual sodomy to be a fundamental right, the Court nonethelessconcluded that the Bowers Court had failed to properly define the liberty interests at stake whenindividuals make private, consensual choices about their sexual conduct.

The Court criticized the Bowers decision on several additional grounds. First, the Court notedthat Bowers had relied in part on a history of condemnation of homosexuality, but the Courtcountered that argument by citing several legal and historical sources demonstrating that "there isno longstanding history in this country of laws directed at homosexual conduct as a distinctmatter." (26) Second,although many believe homosexuality to be immoral, the Court noted that public perceptions on thisissue have shifted over time. The Court pointed to changing trends in state law and international lawas evidence of an "emerging awareness that liberty gives substantial protection to adult persons indeciding how to conduct their private lives in matters pertaining to sex." (27) Indeed, half the states withanti-sodomy laws have legislatively repealed or judicially overruled such statutes over the last twodecades, including Georgia, the state whose anti-sodomy statute was upheld by the Court in Bowers ,and a number of Western democracies have recognized the right to sexual privacy. (28) Finally, the Court notedthat its own constitutional doctrine has evolved over the years that have elapsed since the Bowers decision was handed down, specifically citing its decisions in Romer and in Planned Parenthood ofSoutheastern Pa. v. Casey , a privacy case involving abortion rights. (29) In addition to thesecriticisms of the Bowers decision, the Court also took special note of the stigma imposed by statelaws that criminalize sodomy. (30)

After finishing this critique of Bowers , the Court next considered whether or not to overturnthe case. In determining whether or not to overrule precedent, the Supreme Court typically considersfour factors: (1) whether the precedent establishes a workable rule, (2) whether the public has reliedon the rule, (3) whether legal doctrine has changed, and (4) whether facts in the case or publicperception of such facts has changed. (31) Although the Court, which recognizes a need for continuity andrespect for the rule of law, does not lightly overrule precedent, neither is the Court willing to refrainfrom doing so when it determines that a previous case has been incorrectly decided. (32) In Lawrence , the Courtdetermined that:

[T]here has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compellingreasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuancecontradict its central holding. The rationale of Bowers does not withstand careful analysis. . . . Bowers was not correct when it was decided, and it is not correct today. It ought not to remainbinding precedent. Bowers v. Hardwick should be and now is overruled. (33)

After noting that the Lawrence case involved a consensual relationship and did not involveminors, public conduct, prostitution, or other legitimate state concerns, the majority concluded itsopinion with the following strongly worded statement in support of its holding:

The petitioners are entitled to respect for their privatelives. The State cannot demean their existence or control their destiny by making their private sexualconduct a crime. Their right to liberty under the Due Process Clause gives them the full right toengage in their conduct without intervention of the government. It is a promise of the Constitutionthat there is a realm of personal liberty which the government may not enter. The Texas statutefurthers no legitimate state interest which can justify its intrusion into the personal and private lifeof the individual. (34)

In an equally strongly worded dissent, Justice Antonin Scalia criticized the majority'sdecision in Lawrence . He accused the majority of being inconsistent for failing to adhere to theprecedent established in Bowers after some of the same Justices had insisted on strong adherenceto the rules of precedent in the 1992 Casey decision, in which the Court upheld abortion rights andrefused to overturn Roe v. Wade . (35) He also accused the majority of misapplying the Court'ssubstantive due process doctrine, asserting that homosexual sodomy has not achieved the status ofa fundamental constitutional right in the years since Bowers was decided, (36) and he warned that themajority's opinion signaled "the end of all morals legislation." (37) Arguing that the Court "hastaken sides in the culture war," the dissent concluded by arguing that the majority's opinion opensthe door to legal challenges against an array of laws that regulate sexual activity and personalrelationships, including laws that prohibit same-sex marriage. (38)

Equal Protection

Although Justice O'Connor did agree that the Texas statute was unconstitutional, she did notagree with the majority's reasoning. Rather than ruling on due process privacy grounds, O'Connorbased her concurring opinion on the Equal Protection Clause of the Fourteenth Amendment. (39)

Under the Supreme Court's equal protection jurisprudence, "the general rule is that legislationis presumed to be valid and will be sustained if the classification drawn by the statute is rationallyrelated to a legitimate state interest." (40) Laws based on suspect classifications such as race or gender,however, typically receive heightened scrutiny and require a stronger, if not compelling, state interestto justify the classification. (41) Because sexual orientation is not considered to be a suspectcategory, a state need only advance a rational reason for enacting a statute that treats individualsdifferently depending on their sexual orientation. (42)

Since Lawrence involved a statute that criminalized sodomy when engaged in by same-sexcouples but not identical conduct by different-sex couples, O'Connor's concurring opinion relied onthe rational basis standard of review. Acknowledging that most laws that are reviewed under therational basis standard survive constitutional scrutiny, O'Connor nevertheless noted that "[w]hen alaw exhibits such a desire to harm a politically unpopular group, we have applied a more searchingform of rational basis review to strike down such laws under the Equal Protection Clause." (43) Citing Romer , O'Connorextended this argument further, contending that "[m]oral disapproval of this group, like a bare desireto harm the group, is an interest that is insufficient to satisfy rational basis review under the EqualProtection Clause. . . . The Texas sodomy law raises the inevitable inference that the disadvantageimposed is born of animosity toward the class of persons affected." (44) As with the Coloradoconstitutional amendment at issue in Romer , therefore, O'Connor concluded that the Texas statuteviolated the Equal Protection Clause. Despite this conclusion, O'Connor was careful to note that notall laws that distinguish between heterosexuals and homosexuals would violate equal protection,specifically noting that an interest in preserving national security or the traditional institution ofmarriage could constitute a legitimate governmental interest. (45)

Although no other member of the Court signed on to O'Connor's concurring opinion, themajority opinion, which found the equal protection argument "tenable," appeared to favor the privacyapproach because of its broader effect. (46) The dissent, however, disagreed with O'Connor's equal protectionanalysis, arguing that the Texas statute does not discriminate because it applies equally to men andwomen, as well as to heterosexuals and homosexuals, all of whom are subject to the sameprohibition against engaging in same-sex sodomy. (47)

III. Conclusion

Because many observers had expected the Court to issue a ruling on the more narrow equalprotection grounds favored by O'Connor, the Court's privacy ruling was more sweeping thanpredicted. (48) The broaddecision in Lawrence is sure to have lasting consequences for other cases involving, among otherissues, sexual privacy and gay rights. Some of these potential consequences are highlighted below.

Immediate Consequences

One immediate effect of the Court's ruling in Lawrence was to invalidate all thirteen of theexisting state anti-sodomy laws, regardless of whether they applied to homosexual couples only orto all couples both heterosexual and homosexual. Had the Court issued its ruling on the more narrowequal protection grounds favored by O'Connor, the effect of the decision would have been toinvalidate only those state statutes that discriminated against gays by prohibiting homosexualsodomy exclusively. Since the Court issued a broader ruling that the government cannot criminalizeprivate, consensual, adult sexual behavior, the Lawrence case appears to create a more expansiveright to sexual privacy that prohibits the states from making sodomy a crime for anyone, homosexualor heterosexual.

In another development, the Court also vacated the Kansas Court of Appeals' ruling in Limonv. Kansas , a similar case involving an equal protection challenge to a state law that treatshomosexuals and heterosexuals differently. (49) Under Kansas law, sodomy with a child between the ages of 14and 16 is punishable with probation if the partner is an older teenager of the opposite sex, but thesame act is punishable with a prison sentence if the partner is an older teenager of the same sex. Asa result of the Kansas statute, 18-year old Matthew Limon received a 17-year sentence for engagingin consensual gay sex with a 14-year old boy, despite the fact that he would have received a farlighter sentence for engaging in similar conduct with a youth of the opposite sex. The Supreme Courtordered the Kansas court to reconsider the case in light of the Lawrence ruling, (50) but the Court of Appealsof Kansas distinguished the Lawrence case and upheld the sentence, ruling that the state's interestin protecting children provided a rational basis for criminalizing homosexual sodomy more severelythan heterosexual sodomy. (51) The Kansas Supreme Court subsequently issued a petition toreview the lower court's decision, but has not yet ruled in the case. (52)

Implications for Future Cases Involving Gay Rights

The Court's broad decision in Lawrence is likely to prompt a series of challenges to an arrayof governmental policies involving privacy interests and/or gay rights. Indeed, the case, whichappears to greatly expand constitutional protection for sexual privacy, may give rise to challengesagainst statutes that prohibit same-sex marriage, gay adoption, gays in the military, or similar issues.How the courts will resolve these controversies, however, remains unclear.

On the one hand, the Court's ruling emphasized that "our laws and tradition affordconstitutional protection to personal decisions relating to marriage, procreation, contraception,family relationships, child rearing, and education" and that "persons in a homosexual relationshipmay seek autonomy for these purposes." (53) If Lawrence is viewed as establishing a broad constitutional rightto sexual privacy, then the Court's decision may be interpreted as supporting challenges to laws thatprohibit activities such as same-sex marriage or gay adoption.

On the other hand, the Court also distinguished the Lawrence decision from cases involvingminors or prostitution, and it noted that the case "does not involve whether the government must giveformal recognition to any relationship that homosexual persons seek to enter." (54) Indeed, the courts maypoint to other government interests, such as an interest in preserving marriage or national securityfor example, to distinguish the private sexual conduct involved in Lawrence from the issues at stakein cases involving gay marriage or gays in the military.

Like the courts, Congress may also respond to the Lawrence decision. For example, severallegislators in the 108th Congress introduced proposals to amend the Constitution to prevent same-sexmarriage, and similar proposed constitutional amendments have been introduced during the 109thCongress. (55)