Lawrence v. Texas
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Lawrence v. Texas (2003)

Sheriffs forcibly enter a Houston apartment in response to a weapons disturbance. Two men were having sex in the apartment. Both were arrested, held overnight, and charged the next day. TX statute: prohibits "deviate sexual intercourse with another individual of the same sex." Defines deviate sexual intercourse as any contact between genitals, mouth, and anus. Also, penetration of genitals or anus with an object is prohibited.

Is a Texas statute criminalizing a range of intimate sexual acts between persons of the same sex constitutionally valid?

The statute is unconstitutional. States are not permitted to regulate sex acts based on the heterosexual or homosexual nature of those acts.

J. Kennedy (opinion of the court): Although the petitioners cite the EPC as the relevant 14th A. clause, Kennedy says that the DPC ruling from Bowers (1986) would be more relevant. Griswold established the "protected space of the marital bedroom." Eisenstadt expanded the right to privacy from married couples to all individuals, by striking down a law restricting condom distribution to unmarried persons. In Bowers a Georgia man was intruded upon by a police officer during intimate relations with another man. However, the GA statute applied to the specific sexual act (gay or straight) rather than to all sexual activity among same-sex couples. The man was not prosecuted but he sued anyway to invalidate the statute (why?-was he arrested or what?). The statute was upheld. J. White, writing for the court in Bowers . . .
Historically, American law on the matter has derived from British, which singles out sodomy as a crime against nature and therefore illegal. Similar to GA statute, homosexual activity was not specifically targeted.
Futhermore, American laws regarding private consensual sexual activity have rarely been enforced. Most 19th century prosecutions involve some form of rape, assault, relations between adults of very different status, or bestiality. If the partner was a consenting accomplice, his or her testimony was not valid, although victims could make testimony against the aggressor. So Bowers was as consistent with the general contempt for non-procreative sex as with the tradition of prosecuting homosexual activity.
Only 9 states since 1970s have legislated against homosexual activity, and many have backed off since Bowers. J. Burger in Bowers: Judeo-Chistian and moral and ethical standards provide a basis for anti-sodomy laws. Also, "History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." American Law Institute's Moral Penal Code showed the emerging view in 1955: regulating private relations wrong for 3 reasons: (info) prohibitions on popular activities undermines respect for the law (ii) statutes regulate conduct harmless to others (iii) arbitrary enforcement of these laws encourages blackmail among those who know about it. IL conformed with ALI penal code in 1961 and many states followed. Aside from ALI, the UK and Euro Court of Human Rights had both found any restriction on private sexual conduct was not allowable. (So much for the Judeo-Christian tradition of the West?) US enforcement had all but ceased until Lawrence. Romers v. Evans established that any law singling out a minority (gays, lesbians, etc) for prosecution was "born of animosity toward the class of persons affected."
"When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination." (equality of concern and respect) Also, the court has recently upheld laws that require registration offenders and homosexuals would be convicted of sex crimes under TX statute. Registering as a sex criminal and noting a sodomy conviction on a job application is just wrong.
Kennedy notes that five states have ruled against Bowers in interpreting their own parallel DPC. He observes that Bowers has had no appreciable affect in other jurisdictions. Thus overturning it would be relatively painless. Kennedy formally overrules Bowers.
DPC gives homosexuals right to practice their way of life. He notes that neither prostitution, public nuisance, nor government recognition (i.e. marriage, civil union, etc) are endorsed here. (See Scalia's attack on this statement.) Ratifiers of 14th A. "might have been more specific" if they had more insight. However, they also "knew times can make us blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

J. O'Connor: Agrees with the holding on TX statute in Lawrence without overruling Bowers. She bases opinion on EPC, not on DPC. O'Connor cites many cases where overt discrimination against a class of politically unpopular people is struck down. TX law against homosexual activity fails simply because it is inconsistent with these past rulings. On a prior challenge to the statute, Texas has in fact recognized that the effect of a conviction reaches far beyond criminal law into "employment, family issues, and housing."

O'Connor also notes that the law is really a symbolic statement against a class of people, since it makes a political statement about some way of life without doing anything to efficiently prevent or prosecute the behavior at issue. Texas claims that the law only regulates conduct, not "being homosexual," but how can a person "be" something without also behaving like that thing? O'Connor argues that a prohibition against gay sex is really a prohibition against gays.

"Whether a sodomy law that is neutral both in effect and application would violate the substantive component of the DPC is an issue that need not be decided today." However, heterosexual majority will be loathe to accept very many restrictions on their freedom so this acts to protect other groups by providing, at the very least, equal protection.

J.Scalia (with Rehnquist and Thomas): Most of today's opinion is irrelevant to the case. It is true that TX has no "legitimate state interest" in this activity. However, the court does not ever state that there is fundamental right to homosexual sodomy, which belies that decision re Bowers and also the ruling on Lawrence. The overruling of Bowers argues that (1) its foundations have been eroded by later decisions, state and federal, (2) it is unpopular (3) no one actually uses it so it will not be missed.

Re (1): Bowers has been eroded, but so have Roe and Casey to a great extent. Are we about to overturn Roe as well? Re (2): Roe is unpopular as well, but this decision stands. Re (3): Many laws are in fact based upon the Bowers decision. Any law prohibiting bigamy, same-sex marriage, adult incest, prostitution, masturbation, fornication, adultery, bestiality, and obscenity relies upon Bowers. Roe has none of this corollary legislation, and could be overturned easily. Not so with Bowers.

14th A. expressly allows the State to deprive citizens of liberty so long as "due process of law" is provided. Is right to homosexual activity a fundamental liberty (requiring strict scrutiny) or just a garden variety liberty (requiring only rational basis review)?

The Court points to Griswold as a signpost toward liberty, but that opinion expressly disclaimed any basis in substantive due process, so how can that be used here? Eisenstadt turned on the EPC, not due process, so that is also not a valid precedent. Also, Bowers cited historical basis for prohibiting homosexual activity, and Lawrence has ignored that interpretation of history in favor of another. (How can history change?) It does not matter how sodomy was prohibited (for all people or for homosexuals only), because either demonstrates that sodomy is not a "right deeply rooted in our nations' history and tradition." Scalia also argues that sodomy could not be prosecuted because it was private. Just because prosecution is difficult does not make it wrong. The 203 sodomy prosecutions 1880-1995 make it clear that sodomy has not and is not accepted when it is discovered.

Scalia quotes the "emerging awareness" passage which cites 1955 Moral Penal Code (ALI) and European trends. He disputes that an emerging awareness can be translated in a "fundamental right." Using foreign and subordinate government trends to make federal law is the worst idea ever on principle.

If Bowers does not contain any legitimate State interest, then moral codes are all unconstitutional. Statutes prohibiting fornication, bigamy, adultery, adult incest, bestiality, and obscenity all fail rational basis review. (Smokey's aside: I think that bigamy and obscenity are in a different class as they restructure the community social structure radically. Also, fornication and adultery are both common and totally legal (if sinful) activities when Scalia writes this. Would he like to wind back the clock to 1960?)

EPC not violated here. All men and all women are permitted to have sexual relations with members of the opposite sex. Ruling in favor of a right to homosexual relations forces future courts to rule in favor of homosexual marriage. Loving v. Virginia had a racial component an thus triggered heightened scrutiny. Scalia argues that targeting homosexuals as a class is like targeting nudists as a class: It's totally fine. O'Connor says that a ban on same-sex marriage is OK since for the purpose of "preserving the traditional institution of marriage." This means that she uphold almost law to "preserve the traditions of society" or strike any law down is it "expresses moral disapproval." She is making it up.

"Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best." Best demonstrated by the fact that Texas is alone in prosecuting this behavior.

An advantage to legislative action is that the people may be unprincipled. They may allow freedom of sexual conduct and prohibit homosexual marriage. The court does not (or should not) have this freedom. The right to gay marriage is only a few years away if government is in fact not permitted to "express moral disapproval" in prosecution of deviant behavior. Scalia is right to point out the absurdity of the majority opinion, which notes a right to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education" and then claims that "persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." They say this won't lead to gay marriage but it's mentioned right there in the opinion! It seems like the majority is trying to get a wedge in the door until they can gather support for a future action for expanded gay rights.

J. Thomas: This law is "uncommonly silly," and he would vote to repeal if he were in the TX legislature. However, the statute is not in violation of the 14th A.

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