Winter 2004
Supreme Court Vindicates Rights of Gays and Lesbians to Equal Treatment under the Law1
Lawrence v. Texas, No. 02-102
On June 26, 2003, the Supreme Court held 6-3 that a Texas statute criminalizing same-sex sexual activity violates the right to liberty under the Due Process Clause of the Constitution. In so doing, the Court expressly overruled its 1986 decision in Bowers v. Hardwick, which held that a similar statute in Georgia did not violate substantive due process and that the government's interest in promoting morality provided a legitimate rational basis for such criminal prohibitions. Writing for the majority of the Court, in an opinion joined by Justices Breyer, Ginsburg, Souter, and Stevens, Justice Kennedy explained that the state cannot demean the existence of gay people or control their destiny by making their private sexual conduct a crime.
Background
On September 17, 1998, officers of the Harris County Police Department in Houston, Texas were dispatched to a private residence in response to a reported disturbance. The officers entered an apartment and discovered John Geddes Lawrence and Tyron Garner engaged in sex. The officers arrested Lawrence and Garner for engaging in "deviate sexual intercourse" in violation of the Texas Penal Code, and the defendants challenged their subsequent prosecution as in violation of the Equal Protection and Due Process Clauses of the Constitution. The state trial and appellate courts rejected these contentions, considering the Supreme Court's decision in Bowers v. Hardwick controlling.
The Supreme Court granted review to consider three questions: (i) whether the convictions under a statute that criminalizes same-sex sexual activity, but not identical behavior by different sex couples, violate the Equal Protection Clause; (ii) whether the convictions for adult consensual activity in the home violate petitioners' vital interests in liberty and privacy protected by the Due Process Clause; and (iii) whether Bowers v. Hardwick should be overruled.
Majority Opinion: Bowers Overruled
The majority opinion, delivered by Justice Kennedy, found that the constitutional liberty interests protected by the Due Process Clause include a person's right to engage in consensual sexual activity with another person of the same sex within the home. In so doing, the Court expressly overruled Bowers v. Hardwick, explaining that "Bowers was not correct when it was decided, and it is not correct today."
Almost the entire majority opinion discussed the earlier Bowers decision, and the Court's decision to overrule Bowers in this case. Summarizing the line of privacy cases that led up to Bowers, such as Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Carey v. Population Services Int'l., Justice Kennedy stressed that each involved the right of persons, married and unmarried, to make fundamental decisions about matters affecting one's destiny free from unwarranted govern-mental intrusion.
According to the majority, in Bowers, the Court failed to appreciate the extent of the liberty at stake, narrowly framing the issue as involving only the right of a person to engage in certain sexual conduct. Framing the issue in such a way demeaned the claim "just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse." The fundamental error in Bowers, then, was the Court's failure to recognize that intimate conduct with another person is but one element in a more enduring personal bond.
In support of the Court's decision to overturn Bowers, Justice Kennedy discussed at length and debunked the historical premises on which the Bowers decision rested. Explaining that there was in fact no long-standing history in this country of laws directed at homosexual conduct as a distinct matter, the majority stated that the underlying purpose of Bowers was to affirm the powerful voices that for centuries have condemned same-sex sexual activity as immoral. Yet, unlike the Bowers Court, the Lawrence majority did not consider this historical condemnation to be determinative of whether the electorate may use the power of the state to enforce such views on the whole of society through operation of the criminal law. If anything, the Court noted that the emerging awareness of liberty contemplated by the Court’s privacy cases, which gave substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex counsels against such a finding. Justice Kennedy noted that this emerging awareness should have been apparent when Bowers was decided, but that the Bowers majority ignored it.
Lawrence was also unusual in that it used as precedent legislative decisions in other countries to illustrate this emerging awareness of privacy interests. Five years before Bowers, the European Court of Human Rights overturned an Irish statute that, similar to the statutes at issue in Bowers and Lawrence, prohibited private, consensual same-sex sexual activity. That decision alone, the Court concluded, was at odds with the premise in Bowers that the asserted liberty interest was insubstantial in our Western civilization. Justice Kennedy also placed Bowers in historical context within American jurisprudence, noting that 12 of the 25 States with sodomy laws referenced in the Bowers decision have since overturned those laws through judicial order or legislative action and, that only 4 of the remaining 13 have laws that apply only against same-sex sexual activity. To the extent any historical support existed at the time Bowers was decided, the majority concluded such support has since eroded.
The Court also cited its intervening decisions, Planned Parenthood of Southeastern Pa. v. Casey and Romer v. Evans, as evidence that the logical underpinnings of Bowers had been eroded. The Casey Court affirmed that constitutional protections are afforded to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education - "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." Justice Kennedy explained that people in a same-sex relationship may seek autonomy for these purposes, just as do people in opposite-sex relationships, and that the decision in Bowers would deny gay people this right. Similarly, in Romer the Court held that laws born solely of animosity have no rational relationship to a legitimate governmental purpose. Yet in this case the only interest offered by the State was a desire to set moral standards about what behavior is acceptable.
The Court noted, however, that even though it was overruling Bowers it did not take the doctrine of stare decisis lightly. This was a central issue for the justices and the motivating factor for Justice O'Connor's separate concurrence. In Casey, the Court specifically declined to overrule Roe v. Wade, explaining that "[l]iberty finds no refuge in a jurisprudence of doubt." In his dissent, Justice Scalia focused on this very issue, opening his opinion with that passage from Casey.
In this case, however, the Court determined that the foundations of Bowers had been sufficiently eroded by the Court's subsequent decisions in Casey and Romer to justify giving more weight to the substantial and continuing criticism of Bowers in legal scholarship and state judicial rulings. Moreover, the Court explained that its traditional reluctance to overturn precedent was based on a fear that individuals or society at large may rely on the existence of constitutional protections for certain behavior or actions. Removing such protections after they have been relied upon would be unfair and contrary to the fabric of our legal system. The Court concluded that Bowers had not induced such detrimental reliance and, if anything, had created uncertainty since the precedents before and after its issuance contradict its central holding.
While the Court noted that Petitioners' equal protection claim was tenable, it did not take up the equal protection argument directly, explaining that "the instant case requires us to address whether Bowers itself has continuing validity." Invalidating the statute on equal protection grounds could have caused some to question whether a differently-drawn statute, such as a prohibition regardless of sexual orientation, might be valid. The very existence of prohibitions such as the Texas sodomy statute, the majority concluded, "is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres" that must be eliminated. The majority therefore found that Bowers itself must be overruled since "[i]ts continuance as precedent demeans the lives of homosexual persons."
In the end, the Court concluded that the Texas statute furthers no legitimate interest to justify the burden on the plaintiff’s liberty interests and, therefore, that the statute must be struck down. The only asserted interest relied upon by the state was the bare desire to set moral standards for its citizens. At oral argument, in fact, several justices pressed the state on this precise issue, asking whether the state believed it could pass any law solely on the basis of morality. Justice Breyer, for example, asked whether the state could pass a law criminalizing the teaching of German. The state responded that something more than morality would be necessary, yet never explained what that something more was in the case of its sodomy statute. Frustrated with the state's inability to respond, Justice Scalia offered that morality itself was the rational basis, such as in cases of adultery or bigamy. Referring to his own hypothetical of a law criminalizing the teaching of German, Justice Breyer questioned how morality could serve as a justification in that instance. In the end, neither justice received satisfactory answers, placing in stark contrast their own positions on the issue of legislating morality.
O'Connor's Concurrence: Equal Protection Is Violated
In a concurring opinion, Justice O'Connor wrote separately to find that the Texas state violated the Equal Protection Clause of the Fourteenth Amendment. As she noted in her concurrence, Justice O'Connor had joined the majority opinion in Bowers and, therefore, did not join the majority of this Court in overruling that decision. Justice O'Connor was the only justice, in fact, who found herself in this position. Each of the other justices who joined the majority opinion overruling Bowers either had dissented from the Court's decision in that case or had been appointed to the Court after the decision had been issued. Justice O'Connor was likely more sensitive to the majority's decision to overrule Bowers in light of the Court's earlier abortion decisions, some written by her, in which the Court made clear that the doctrine of stare decisis counseled against overturning its decision in Roe v. Wade.
Justice O'Connor instead analyzed the petitioners' claim that the Texas statute violated the Equal Protection Clause by criminalizing identical conduct only when committed by two people of the same sex, and not when committed by two people of the opposite sex. Although Justice O'Connor applied the rational basis test in analyzing the equal protection claim, she noted that the Court has applied "a more searching form of rational basis review" when a law is based on a bare desire to harm a politically unpopular group.
Justice O'Connor began by noting that the effect of the Texas sodomy statute was not limited to the threat or consequences of criminal conviction. The sodomy statute brands all gay people as criminals, making it more difficult for gay people to be treated in the same manner as everyone else. Justice O'Connor pointed out, in fact, that the state already had stipulated in an earlier challenge to the statute that the statute served to legally sanction discrimination against gay people in a variety of ways unrelated to the criminal law, including the areas of employment, family issues, and housing.
Having found that the statute treats gay people differently than straight people, Justice O'Connor turned to the state's asserted interest in enacting and enforcing the statute. As noted above, Texas relied on the promotion of morality, which Bowers had found was a legitimate state interest. Justice O'Connor distinguished Bowers, however, by concluding that the only question before the Court in that case was the application of the Due Process Clause, not the Equal Protection Clause. Whether or not moral disapproval may serve as a legitimate state interest under the Equal Protection Clause was, in her view, left open by the Bowers Court.
Justice O'Connor determined that the moral disapproval relied upon by Texas was nothing more than a bare desire to harm a particular group, an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. For Justice O'Connor, moral disapproval could not be a legitimate governmental interest since legal classifications must not be drawn for the sole purpose of disadvantaging the particular group burdened by the law. In fact, since the state rarely enforced its sodomy statute, it all the more served as a statement of dislike and disapproval against gay people rather than a tool to stop criminal behavior. Quoting Romer, Justice O'Connor concluded that the Texas statute "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected" and, therefore, was not enforceable under the Equal Protection Clause of the Fourteenth Amendment.
Scalia's Dissent: Rely On Democratic Change
In a scathing dissent joined by Chief Justice Rehnquist and Justice Thomas, Justice Scalia accused the majority of having "largely signed on to the so-called homosexual agenda" and "taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of government are observed." In Justice Scalia's view, the proper mechanism for overturning the Texas sodomy statute was through legislative repeal. According to Justice Scalia, those who believe that same-sex sexual activity should be considered private and beyond the scope of governmental intrusion should exercise their right to persuade their fellow citizens accordingly, rather than seek to overturn a particular statutory prohibition through a Court that "is impatient of democratic change."
Criticizing the majority's disregard for the stare decisis doctrine, Justice Scalia questioned how overruling Bowers in this case could be distinguished from the Court's refusal to overrule Roe v. Wade in Casey. Taking issue with the majority, Justice Scalia argued that Casey casts no doubt on the continued legitimacy of Bowers since, in that case, the Court actually cut back on the more expansive right to abortion previously provided in Roe. The dissent asserted that the reasoning of Roe and Casey themselves have been eroded by the Court's subsequent decision in Washington v. Glucksberg, in which the Court affirmed that only fundamental rights that are deeply rooted in this nation's history and tradition qualify for protection under the substantive due process doctrine.
Justice Scalia also criticized the Court's conclusion that there had been no individual or societal reliance on the Bowers decision sufficient to counsel against overruling it. Finding it impossible to distinguish sodomy statutes from other traditional morals offenses such as bigamy, same-sex marriage, adult incest, prostitution, bestiality, and obscenity, Justice Scalia concluded that the Bowers Court properly found that it is permissible to base the laws on commonly-held notions of morality.
Beyond the issue of stare decisis, Justice Scalia also argued that the majority engaged in a results-oriented interpretation of existing substantive due process precedent, claiming that the Court applied an "unheard-of form of rational-basis review that will have far-reaching implications beyond this case." Traditionally, fundamental rights have only been found to include those matters that are deeply rooted in our nation's history and tradition. In Justice Scalia's view, Bowers correctly relied on the longstanding history of laws prohibiting sodomy in general. Justice Scalia did not consider it material that this longstanding tradition applied equally to gay and straight couples, arguing that the only relevant point is that same-sex sexual activity in fact was prohibited by the more general sodomy statutes.
Turning to the majority's ultimate holding that there is no rational basis for the Texas statute, Justice Scalia found a legitimate interest in a state defining for itself what is immoral and unacceptable. As he hinted in his questions at oral argument, Justice Scalia clearly believed that morality - in and of itself - is a sufficient justification for legislation. In his dissent, Justice Scalia therefore warned that the majority opinion threatened all morality legislation, including those addressing fornication, bigamy, adultery, and adult incest. The dissent applied the same criticism to Justice O'Connor's concurrence, arguing that the same legitimate interest in defining what is morally acceptable justifies upholding the statute under the Equal Protection Clause. Justice Scalia concluded, therefore, that the Texas sodomy statute should not be struck down under either the Due Process or Equal Protection Clauses and that Bowers itself should be affirmed.
Justice Scalia ended his opinion by taking both the majority and the concurrence to task for, in his view, failing to recognize the relevance of the Court's decision to the issue of gay marriage. If moral disapprobation of same-sex sexual activity is no longer a legitimate state interest, the dissent questioned how there could be any justification for denying gay couples the benefits of marriage. Although Justice O'Connor sought to maintain such laws by presuming that the preservation of the traditional institution of marriage is a legitimate interest, Justice Scalia argued that is "just a kinder way of describing the State's moral disapproval of same-sex couples." For its part, the majority opinion simply avoided the issue by stating directly that this case did not involve the issue of gay marriage and, instead, focused on Texas's attempt to criminalize sexual conduct. Although Justice Scalia found this unsatisfactory, he likely will have an opportunity to revisit the issue at some point in the future.
Reaction of the Civil Rights Community
"This is an historic day for fair-minded Americans everywhere," said Human Rights Campaign Executive Director Elizabeth Birch. "We are elated and gratified that the Supreme Court, in its wisdom, has seen discriminatory state sodomy laws for what they are - divisive, meanspirited laws that were designed to single out and marginalize an entire group of Americans for unequal treatment."
