Lawrence v. Texas

{{title-italics}}{{constnav}}{{caselaw|Lawrence v. Texas|539 U.S. 558|June 26, 2003}}
'''''Lawrence v. Texas''''' was a case decided by the [[United States Supreme Court]] in 2003, invalidating laws forbidding private, consensual [[sex]]ual activities (that are not otherwise legitimately criminal) throughout the [[United States]].<ref>Whether Sen. [[Strom Thurmond]]'s sudden death the same day is coincidental is an open question.</ref>

== Facts of the Case, and Appellate Proceedings ==
The dilemma in ''[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=539&page=558  Lawrence]'' arose when a police officer, visiting John Geddes Lawrence's home on an unrelated report of a weapons disturbance (which was later found to be false), accidentally observed him engaged in consensual [[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. 

Upon appeal, Lawrence and his partner's argument that the Texas statute on sodomy was unconstitutional based on the equal protection and [[due process]] clauses of the [[Fourteenth Amendment]] was rejected based on the precedent ''Bowers v. Hardwick'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=478&invol=186  478 U.S. 186], which held that regulations against sodomy were legal, because they were found to affect all citizens without differentiating between homosexual and [[heterosexual]] activities.<ref> ''Bowers v. Hardwick'', 478 U.S. 186.  Justice Brennan sharply dissented from ''Bowers'', in an opinion in many ways more liberal than the holding the Court ultimately accepted in ''Lawrence''.</ref>  ''Lawrence'' would specifically overrule ''Bowers.''

== Holding of the Majority, by Justice Kennedy ==
On ''[[certiorari]]'' to the Supreme Court, Justice [[Anthony Kennedy]] spoke for a majority of six Justices, in holding the law unconstitutional on the grounds of [[substantive due process]]. 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 an adult, consensual relationship. Such a definition of the right (accomplished without using the word "[[privacy]]", which seems the obvious doctrinal hook to [[Griswold v. Connecticut|''Griswold'']]) avoided defining sodomy itself as a specific and fundamental right, and instead simply stated that the state had no right to intrude upon intimate, adult and consensual relationships.

By avoiding the task of defining intimate, consensual and private conduct as a fundamental right, Kennedy certainly side-stepped [[strict scrutiny]], forestalling the recognizing of homosexuals as a class protected by the higher standard of review — normally reserved for only race and national origin classifications. But it must be argued that Kennedy's opinion is in fact something slightly more than rational basis review, for he stated 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 a 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]].<ref>Pamela S. Karlan, ''Loving Lawrence,'' preliminary draft.</ref>

This large victory for [[gay rights]], though, is tempered by the fact that Kennedy explicitly rejected the idea that the holding of the case, or its implications, could be used as a foundation for building a case for [[Same-sex marriage]].{{efn|Specifically, Kennedy stated 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.}}

In reaching his opinion, Kennedy noted favorably the international trend in support of gay rights.

== Concurring Opinion, by Justice Sandra Day O'Connor==
[[Sandra Day O'Connor|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 v. Evans|''Romer'']], by again finding an equal protection basis for protecting homosexual conduct.

== Justice Scalia's Dissent ==
[[Antonin Scalia|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]]'' and reliance-based holding of ''Casey v. Planned Parenthood.''<ref>''Casey v. Planned Parenthood'', 505 U.S. 833, opinion of the Court, section III.</ref> 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 gay marriage. In 2015, [[Obergefell v. Hodges|it did]].

== Post-''Lawrence'' sodomy laws ==
While the laws are (for now) unenforceable, anti-sodomy laws are still on the books in 13 states:
* Same-sex sodomy only is considered a misdemeanor in [[Kansas]]<ref>Kansas Statutes Ann. 21-5504</ref> and [[Texas]].<ref>Texas Penal Code Ann. § 21.06</ref>
* All sodomy is considered a misdemeanor in [[Florida]],<ref>Florida Crim. Code § 800.02</ref> and a felony in Georgia,<ref>O.C.G.A. § 16-6-2</ref> [[Louisiana]],<ref>Louisiana Pen. Code 14:89</ref> [[Michigan]],<ref>Michigan Pen. Code § 750.158</ref> [[Mississippi]],<ref>Mississippi Code § 97-29-59</ref> [[North Carolina]],<ref>North Carolina Gen. Stat. § 14-177</ref>, [[Oklahoma]],<ref>Oklahoma Statutes § 886</ref> and [[South Carolina]],<ref>South Carolina Code § 16-15-120</ref>
*Three additional states have anti-sodomy laws that were declared invalid in state courts before Lawrence: Kentucky<ref>Kentucky Revised Statues § 510.100</ref> (declares same-sex sodomy a misdemeanor, invalidated 1992), Maryland<ref>Maryland Code, Criminal Law § 3-322</ref> (declares oral sex a misdemeanor), and Massachusetts<ref>Mass. Gen. Laws ch. 272 § 34</ref> (declares all sodomy a felony, invalidated 1972).

[[Alabama]], [[Idaho]], and [[Virginia]] previously had laws prohibiting all forms of consensual sodomy, and Missouri had a law prohibiting homosexual sodomy; however, these laws were each repealed (the first two by unanimous votes) in 2019, 2022, 2014, and 2006, respectively. 

=== Texas ===
Texas itself continues to circumvent the decision in part. In Texas, the age of consent is set at 17. However, Texas has a close-in-age exemption (also known as a "Romeo and Juliet law"), where if the age difference between the parties is less than 3 years, then it is not illegal to have sex with someone under the age of consent. However, the law explicitly states that this exemption only applies to opposite-sex couples. So, it's legal for two people, aged 16 and 17, to engage in sexual activity, but if they were a same-sex couple, the 17-year-old would be charged with a felony and face between 2 and 20 years in prison.<ref>Texas Penal Code Ann. § 21.11</ref>

In addition, while the anti-sodomy law is unenforceable, Texas has two laws that legally require schools to teach students in sex-ed programs that homosexuality is immoral and that sodomy is a criminal offense.<ref>Texas Health & Safety Code § 85.007</ref><ref>Texas Health & Safety Code § 163.002</ref> Currently, three other states maintain similar laws (Louisiana, Mississippi, and Oklahoma).<ref>Louisiana R.S. § 17:281</ref><ref>Mississippi Code § 37-13-171</ref><ref>Oklahoma Statutes Title 70. Schools §70-11-103.3</ref>

=== East Baton Rouge Parish, Louisiana === 
Between 2011 and 2015 in East Baton Rouge Parish, [[Louisiana]], 14 men were arrested for agreeing to, having, or even discussing consensual sodomy, including during sting operations for solely for that purpose, although the charges were inevitably dropped.<ref>{{cite news|last=Maddow|first=Rachel|title=Sodomy laws still enforced in East Baton Rouge|url=https://www.msnbc.com/rachel-maddow-show/sodomy-laws-still-enforced-east-baton-msna75068}}</ref><ref>{{cite news|last=McKinney|first=Matt|title=Arrest on unconstitutional sodomy law prompts Baton Rouge police chief to send memo to all officers|url=http://theadvocate.com/news/11597150-123/arrest-on-unconstitutional-sodomy-law}}</ref> In April 2014, new legislature would have formally removed language prohibiting consensual sodomy between adults, but this bill was defeated 66-27 in the Louisiana State House of Representatives, partially due to [[bullshit|misinformation]] campaigns from [[Christian fundamentalist]] organizations close to the [[Family Research Council]], but also because some of the politicians wanted to keep the law as a symbolic display of [[homophobia]].<ref>{{cite news|last=Human Rights Watch|url=https://www.hrw.org/news/2014/04/22/louisiana-repeal-crime-against-nature-laws|title=Louisiana: Repeal ‘Crime Against Nature’ Laws}}</ref> <ref>{{cite news|first=Gremore|last=Graham|title=Louisiana House of Representatives Votes 27-66 To Keep 200-Year-Old Anti-Sodomy Law|url=https://www.queerty.com/louisiana-house-of-representatives-votes-27-66-to-keep-200-year-old-anti-sodomy-law-20140415}}</ref>

=== Death of [[Roe v Wade]] ===

In June 2022, the [[Supreme Court of the United States]] voted 6-3 to overturn Roe v Wade, claiming that the Constitution did not protect abortion rights. Justice [[Clarence Thomas]], who personally voted in favor of Texas, suggested "reviewing" other decisions based on the constitutional right of privacy, including Lawrence v Texas. If Lawrence is reversed, this will result in sodomy becoming illegal in at least 10 (and possibly in another 3) states, and open the door for Republicans in other state legislatures to criminalize it.

==Notes==
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==References==
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[[Category:Homosexuality]]
[[Category:Texas]]
[[Category:United States Supreme Court cases]]

Categories: Homosexuality, Texas, United States Supreme Court cases