Lawrence v. Texas Part II

 

O'Connor's concurrence

Justice O'Connor, argued the statute was unconstitutional under the Equal Protection Clause rather than due process and would have kept Bowers intact.

Justice Sandra Day O'Connor only concurred in the judgment and wrote a concurring opinion in which she offered a different rationale for invalidating the Texas sodomy statute. She disagreed with the overturning of Bowers—she had been in the Bowers majority—and disputed the court's invocation of due process guarantees of liberty in this context. Rather than including sexuality within protected liberty, she would strike down the law as violating the equal protection clause because it criminalized male–male but not male–female sodomy. O'Connor maintained that a sodomy law that was neutral both in effect and application might be constitutional, but that there was little to fear because "democratic society" would not tolerate it for long. O'Connor noted that a law limiting marriage to heterosexual couples would pass rational scrutiny as long as it was designed to "preserv[e] the traditional institution of marriage" and not simply based on the state's dislike of homosexual persons.

Scalia's dissent

Justice Antonin Scalia wrote a dissent, which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit Bowers, pointing out many decisions from lower courts that relied on Bowers that might now need to be reconsidered. He noted that the same rationale used to overturn Bowers could have been used to overturn Roe v. Wade, which some of the Justices in the majority in Lawrence had upheld in Planned Parenthood v. Casey (1992). Scalia also criticized the majority opinion for failing to give the same respect to stare decisis that three of those in the majority had insisted on in Casey. O'Connor's concurrence noted that Scalia's dissent conceded that if cases such as Romer v. Evans "have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review" applied.

Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done in Bowers, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.

He wrote that:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. ... [T]he Court has taken sides in the culture war, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed.

He cited the majority opinion's concern that the criminalization of sodomy could be the basis for discrimination against homosexuals as evidence that the majority ignored the views of most Americans:

So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal.

He continued: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." The majority's "invention of a brand-new 'constitutional right'", he wrote, showed it was "impatient of democratic change".

Thomas's dissent

Justice Thomas wrote in a separate, two-paragraph dissent that the law the Court struck down was "uncommonly silly", a phrase from Justice Potter Stewart's dissent in Griswold v. Connecticut, but he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He added that if he were a member of the Texas legislature he would vote to repeal the law.

Reactions

President George W. Bush's press secretary Ari Fleischer refused to comment on the decision, noting only that the administration had not filed a brief in the case. As governor, Bush had opposed the repeal of the Texas sodomy provision, which he called a "symbolic gesture of traditional values". After quoting Fleischer calling it "a state matter", Linda Greenhouse, writing in The New York Times, commented: "In fact, the decision today ... took what had been a state-by-state matter and pronounced a binding national constitutional principle."

The Lambda Legal's lead attorney in the case, Ruth Harlow, stated in an interview after the ruling that "the court admitted its mistake in 1986, admitted it had been wrong then ... and emphasized today that gay Americans, like all Americans, are entitled to full respect and equal claim to [all] constitutional rights."

Professor Laurence Tribe has written that Lawrence "may well be remembered as the Brown v. Board of Education of gay and lesbian America". Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having "changed the status of homosexual acts and changed a previous ruling of the Supreme Court ... this was a drastic rewrite".

The end result of Lawrence v. Texas was "like the Roe v. Wade of the homosexual issue", according to Peter LaBarbera of Culture and Family Institute and Americans for Truth about Homosexuality, an organization recognized as a homophobic hate group by the Southern Poverty Law Center.

Subsequent cases

Sexual privacy

Age of consent laws

Lawrence invalidated age of consent laws that differed based on sexual orientation. The day after the Lawrence decision, the Supreme Court ordered the State of Kansas to review its 1999 "Romeo and Juliet" law that reduces the punishment for a teenager under 18 years of age who has consensual sexual relations with a minor no more than four years their junior but explicitly excludes same-sex conduct from the sentence reduction. In 2004, the Kansas Appeals Court upheld the law as is, but the Kansas Supreme Court unanimously reversed the lower court's ruling on October 21, 2005, in State v. Limon.

Consensual incest

In Muth v. Frank (2005), following Lawrence a man convicted of criminal behavior by having an incestuous relationship in Wisconsin appealed his ruling in an attempt to apply the logic of sexual privacy in Lawrence. The Seventh Circuit declined to extend the right of privacy stated in Lawrence to cases of consensual adult incest. The case was distinguished because parties were not similarly situated since there is in the latter case an enhanced possibility of genetic mutation of a possible offspring as suggested by geneticists who were witnesses at the trial.

Fornication

In Martin v. Ziherl, the Supreme Court of Virginia ruled the state's fornication law unconstitutional relying on Lawrence and the right to privacy.

Teacher-student relationships

The Connecticut Supreme Court rejected an argument based on Lawrence that a high school teacher had a constitutional right to engage in sexual activity with his consent-aged students. The court rejected the teacher's privacy and liberty arguments in the context of an "inherently coercive relationship wherein consent might not easily be refused".

Adult entertainment

Upon rehearing Williams v. Pryor after Lawrence, the Eleventh Circuit Court of Appeals upheld Alabama's ban on the sale of sex toys. Facing comparable facts, the Fifth Circuit struck down Texas's sex toy ban holding that "morality is an insufficient justification for a statute" and "interests in 'public morality' cannot constitutionally sustain the statute after Lawrence".

Bestiality

According to Leighann Lassiter, director of animal abuse for the Humane Society of the United States, the Lawrence ruling that struck down all statutes in the United States prohibiting consensual human sexual conduct can also block prosecution of bestiality. Issues stem from several states that include human sexual conduct and bestiality in the same "anti-sodomy" statute. "Cases have been turned over on appeal because of unclear language in the law, and often times no charges are brought at all," said Leighann. As of 2018, 45 states have direct prohibitions on bestiality, while others may prohibit it under broader animal cruelty laws, according to the Animal Legal and Historical Center (Michigan State University College of Law).

Same-sex marriage bans

A few months later, on November 18, 2003, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a right to marry. Although deciding the case on the basis of the state constitution, Chief Justice Margaret Marshall quoted Lawrence in its second paragraph: "Our obligation is to define the liberty of all, not to mandate our own moral code."

Aside from Massachusetts, other state case law had been quite explicit in limiting the scope of Lawrence and upholding state bans on same-sex marriage regulations. (See Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. App. 2003); Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005); Hernandez v. Robles (7 NY3d 338 2005).)

In the first successful federal court challenge to a state same-sex marriage ban, Judge Vaughn Walker cited Scalia's dissent in his decision in Perry v. Schwarzenegger that found California's Proposition 8 banning same-sex marriage unconstitutional.

United States military

The United States Court of Appeals for the Armed Forces, the last court of appeals for courts-martial before the Supreme Court, ruled that Lawrence applies to Article 125 of the Uniform Code of Military Justice, the article banning sodomy. It also twice upheld prosecutions under Article 125 when applied as necessary to preserve good order and discipline in the armed forces.

The level of scrutiny applied in Lawrence

Justice Scalia and others have noted that the majority did not appear to apply the strict scrutiny standard of review that would be appropriate if the Lawrence majority had recognized a full-fledged "fundamental right". He wrote the majority, instead, applied "an unheard-of form of rational basis review that will have far-reaching implications beyond this case".

Nan D. Hunter has argued that Lawrence used a new method of substantive due process analysis, and that the Court intended to abandon its old method of categorizing due process rights as either "fundamental" or "not fundamental" as too restrictive. Justice Souter, for example, argued in Washington v. Glucksberg that the role of the Court in all cases, including unenumerated rights cases, is to ensure that the government's action has not been arbitrary. Justice Stevens had repeatedly criticized tiered scrutiny and preferred a more active judicial balancing test based on reasonability.

Lower courts have read Lawrence differently on the question of scrutiny. In Lofton v. Secretary of the Department of Children and Family Services the United States Court of Appeals for the Eleventh Circuit upheld a state law barring adoption of children by homosexuals, holding explicitly that Lawrence did not apply strict scrutiny. In Witt v. Department of the Air Force, the United States Court of Appeals for the Ninth Circuit held that Lawrence applied intermediate scrutiny.

Plaintiffs

John Lawrence died of complications from a heart ailment in 2011, aged 68. Tyron Garner died of meningitis in 2006, aged 39, and Robert Eubanks was beaten to death in 2000, in a case that was never solved.