Facts—Responding to a report of a weapons disturbance, Houston police legally entered Lawrence’s apartment and discovered another man and him engaged in an intimate sexual act. Both were arrested and convicted by a justice of the peace under a Texas law defining sexual intercourse between individuals of the same sex as deviate. The Harris County Criminal Court and the Texas Fourteenth District Court both upheld these convictions, the latter court relying specifically on the decision in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the U.S. Supreme Court had upheld a Georgia statute prohibiting sodomy.
Questions—(a) Does the Texas statute violate the liberty guaranteed by the due process clause of the Fourteenth Amendment? (b) Is Bowers v. Hardwick still good law?
Decisions—(a) Yes; (b) No.
Reasons—J. Kennedy (6–3). Liberty is designed to protect individuals against undue governmental intrusion. Such liberty has been related to privacy interests going back to decisions in Pierce v. Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska, 262 U.S. 390 (1923), and Griswold v. Connecticut, 381 U.S. 479 (1965). Cases since Griswold have further indicated that privacy interests are personal in nature. In Bowers, the Georgia statute that was sustained technically differed from the case at hand in ostensibly applying to both homosexual and heterosexual sodomy, but the cases are otherwise similar. The majority’s decision in Bowers, linking the decision as to whether individuals had the right to engage in sodomy failed “to appreciate the extent of the liberty at stake.” Bowers’s assertion that laws against sodomy had a long history failed to note that such laws were directed against both homosexual and heterosexual sodomy and that they were rarely enforced in cases of private conduct, other than in the case of “predatory” or nonconsensual acts. Although laws against homosexual sodomy may reflect popular opinions, “The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.” Trends throughout the Western world as well as in the United States have eroded prohibitions against private homosexual conduct. Laws prohibiting homosexual consensual conduct demean the lives of homosexuals and, in addition to criminal conviction, can result in stigma against them. Stare decisis is not “an inexorable command,” and Kennedy accordingly overruled not only this law but the decision in Bowers v. Hardwick that supported it. Kennedy noted that the decision did not involve minors, individuals who might be injured or coerced, public conduct, or prostitution. He also observed that “It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In this case, however, he found “no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
J. O’Connor, concurring, rested her opinion on the equal protection clause of the Fourteenth Amendment and would have struck down the Texas law on the basis that it was not “rationally related to a legitimate state interest.” Unlike the law at issue in Bowers, which she would leave untouched until that issue was specifically raised in Court, the law in question “makes homosexuals unequal in the eyes of the law” by specifically outlawing homosexual but not heterosexual sodomy.
J. Scalia’s dissent pointed to what he believed to be the contradiction between this case and the decision upholding the core of the abortion decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) on the basis of stare decisis. Scalia believed the decision in Lawrence was a return to the discredited idea of “substantive due process,” and he cited a long history of laws against sodomy to demonstrate that the right could not be fundamental. He feared that this decision could have implications for “criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” He further argued that “This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” He accused the majority of having “signed on to the so-called homosexual agenda.” By contrast, he would permit states through democratic decision-making either to permit or to outlaw sodomy.
J. Thomas’s dissent characterized the law as “uncommonly silly” but found no constitutional basis on which to invalidate it.