Lawrence v. Texas

Lawrence v. Texas was a case decided by the United States Supreme Court in 2003, invalidating laws forbidding private, consensual sexual activities (that are not otherwise legitimately criminal) throughout the United States.

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 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, 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. 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) 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.

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.

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

Concurring Opinion, by Justice 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, 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 and 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 gay marriage. In 2015, 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 and Texas,.
 * All sodomy is considered a misdemeanor in Florida, and a felony in  Georgia, Louisiana, Michigan, Mississippi, North Carolina,, Oklahoma,  and South Carolina,
 * Three additional states have anti-sodomy laws that were declared invalid in state courts before Lawrence: Kentucky (declares same-sex sodomy a misdemeanor, invalidated 1992), Maryland (declares oral sex a misdemeanor), and Massachusetts (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, its 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.

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. Currently, three other states maintain similar laws (Louisiana, Mississippi, and Oklahoma).

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. 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 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.

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 legistlatures to criminalize it.