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Photo of a lesbian couple protesting for gay rights.
In 2003, the Court overturned a Texas anti-sodomy law as a violation of the right to privacy and the Equal Protection Clause of the Fourteenth Amendment.

Photo by Robert Sherbow, reproduction courtesy of TIME & LIFE Pictures
Lawrence v. Texas (2003)

In Lawrence v. Texas (2003), the Supreme Court ruled that state laws banning homosexual sodomy are unconstitutional as a violation of the right to privacy. The case began with the arrest of John Geddes Lawrence, a Houston resident, by the Houston Police, dispatched to Lawrence's apartment complex in response to a reported weapons disturbance. When the police entered Lawrence's apartment unit, they found him engaged in a sexual act with another man, Tyron Garner. Both men were detained, held in police custody overnight, and charged with violating the Texas "Homosexual Conduct" law, which provided that a "person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." After the men were convicted and fined, Lawrence appealed, arguing that that the Homosexual Conduct law was unconstitutional because it discriminated against homosexuals in violation of the right to privacy and the Equal Protection Clause of the Constitution. The Texas appeals court affirmed the conviction, however, pursuant to the Supreme Court's ruling in Bowers v. Hardwick (1986), which upheld a Georgia antisodomy law. Lawrence appealed to the Supreme Court, which reviewed the case in 2003.

The Supreme Court, in a 7-2 decision written by Justice Anthony Kennedy, ruled that the Homosexual Conduct law was unconstitutional and overturned the conviction of Lawrence and Garner. The Court ruled that the law violated the Fourteenth Amendment's Due Process Clause because that clause protects a substantive right to personal liberty in intimate decisions. The Court argued that its decision in Bowers, which ruled that the Due Process Clause does not confer a "fundamental right upon homosexuals to engage in sodomy," was misguided. At issue here was not "the right to engage in homosexual sodomy" but "the right to privacy in the home" and "the right to freely engage in consensual, adult sex." In the words of Justice Kennedy, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." That personal bond between adults, as acted upon in the home, is a liberty protected by the Due Process Clause against the states.

The Court also rejected Bowers' method of identifying rights that deserve Court protection against the state. The Court argued that "history and traditions," i.e., America's historic laws, "are the starting point but not in all cases the ending point" in identifying the existence of such rights. From Griswold v. Connecticut (1965) to Roe v. Wade (1973), fundamental rights have been construed broadly, so even activities largely banned by America's laws, such as abortions, may be constitutionally protected. And even when America's "history and traditions" are examined, it is clear that American antisodomy laws have rarely been enforced in the home and did not single out same-sex couples until the 1970s, and that more states are repealing their antisodomy laws. In fact, by 2003, only four states enforced sodomy laws against homosexuals. In her concurring opinion, Justice Sandra Day O'Connor argued that because the law prohibited homosexual sodomy and not heterosexual sodomy, it was a violation of the Equal Protection Clause. The majority did not join her extension of Equal Protection rights to gays.

Lawrence v. Texas was a paramount case in two regards. First and most obviously, the ruling established that consensual and private homosexual sex is part of a substantive right to liberty as protected by the Constitution. Second, and less obviously, Lawrence held that "fundamental rights" (i.e., "substantive due process," or activities implicitly protected by the Constitution) are really broad principles of liberty under which numerous and disparate activities may be protected. This was a stark departure from the Court's conservative methodology in the 1980s and 1990s, which found evidence of fundamental rights only in activities the laws themselves substantially protected ("history and traditions"). In the end, therefore, Lawrence v. Texas both protected the privacy of the bedroom and renewed the Court's power to identify individual rights above and beyond those historically protected under the law.

Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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