Lawrence v. Texas

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Lawrence v. Texas (2003) is a landmark case, in which the Supreme Court of the United States, in 6-3 decision, invalidated sodomy law across the United States, making same-sex sexual activity legal in every State and United States territory. The majority opinion in this case, written by justice Kennedy, overturned the previous ruling of the Supreme Court on the same issue in Bowers v. Hardwick (1986), where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy. The court in Lawrence v. Texas explicitly held that intimate consensual sexual conduct was part of the liberty protected by the substantive due process under the Fourteenth Amendment.

The decision in this case was a breakthrough for the gay rights movement and helped to set the stage for Obergefell v. Hodges, which recognized the same-sex marriage as a fundamental right under the United States Constitution.


Before Lawrence v. Texas, legal punishments for sodomy included fines, life prison sentences or both. In the late 19th and early 20th centuries, several states imposed various laws against anyone deemed to be a “sexual pervert.” Some States (like Illinois starting 1827) denied rights, such as suffrage to anyone convicted of sodomy. In 1970 Connecticut denied driver’s licenses to man who were “admitted homosexuals.” Even though as of 1960, every state had an anti-sodomy law they rarely been enforced in a private setting.

In 1963 the American Civil Liberties Union took its first major case in opposition of sodomy laws, most judges were unsympathetic to these cases, but in 1965 with Griswold v. Connecticut, the Supreme Court of the United States finally got on to a long but fruitful pass that will eventually lead them to Lawrence v. Texas and Obergefell v. Hodges.

In Griswold v. Connecticut (1965), the Supreme Court of the United States for the first time recognized that married couples had a right to privacy based on the Fourth Amendment’s protection from warrantless search and seizure. Additionally, the due process clause of the Fourteenth Amendment and Ninth Amendment guarantee that rights not specified in the Constitution are “retained by the people.” Several years later, in Eisenstadt v. Baird (1972) the Supreme Court of the United States expanded the scope of sexual privacy rights to unmarried individuals. After a short sign of hope major setback followed in Bowers v. Hardwick where the Supreme Court of the United States heard a constitutional challenge to sodomy laws. However, the Court in 5-4 decision rejected this challenge. Justice White’s majority opinion emphasized that Eisenstadt v. Baird and Roe v. Wade (proclaiming that the choice to have an abortion is protected by the Constitution) had simply recognized a right to engage in procreative sexual activity, and that longstanding moral antipathy toward sodomy was enough to support the argument against the right to sodomy.

The events that gave rise to Lawrence v. Texas took place while Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, Michigan, Utah and Virginia still banned consensual sodomy, disregarding the sex of those involved. Texas, Kansas, Oklahoma and Missouri prohibited same sex couples from engaging in oral and anal sex. On September 17, 1998, John Geddes Lawrence Jr. was hosting two gay acquaintances, Tyron Garner and Robert Eubanks, at his apartment in northeast Harris County, Texas.  Lawrence and Eubanks had been friends for more than 20 years. Garner and Eubanks had an on and off romantic relationship since 1990. They did not have the transportation to get home, so they decided to stay the night. Eubanks, had a fit of jealousy after drinking heavily, and left, while outside he called police and reported "a black male going crazy with a gun" at Lawrence's apartment. Four Harris County sheriff's deputies arrived at Lawrence’s place and Eubanks pointed them to the apartment. The first sheriff deputy to arrive, Joseph Quinn, took the lead both in approaching the scene and later in determining what charges to bring. He later reported seeing Lawrence and Garner having anal sex in the bedroom. A second officer reported seeing them engaged in oral sex, and two others did not report seeing the pair having sex.

Deputy Quinn had discretionary authority to charge them for a variety of offenses and to determine whether to arrest them. When Quinn considered charging them with having sex in violation of state law, he had to get an Assistant District Attorney to check the statutes to be certain they covered sexual activity inside a residence. He was told that Texas' anti-sodomy statute, the "Homosexual Conduct" law, made it a Class C misdemeanor if someone "engages in deviate sexual intercourse with another individual of the same sex". Quinn decided to arrest Lawrence and Garner and charge them with having "deviate sex". He wrote separate arrest reports for the couple alleging that he has seen the arrestee "engaged in deviate sexual conduct namely, anal sex, with another man." Lawrence and Garner were held in jail overnight. At a hearing the next day, they pleaded not guilty to a charge of "homosexual conduct". After they were released Eubanks pleaded no contest to charges of filing a false police report. He was sentenced to 30 days in jail but released early.

The Case

On November 20, Lawrence and Garner pleaded no contest to the charges and waived their right to a trial (Lawrence and Garner were represented by Lambda Legal). Justice of the Peace Mike Parrott found them guilty and imposed a $100 fine plus the court costs of $41.25 per defendant. When the defense attorneys realized that the fine was below the minimum required to permit them to appeal the convictions, they asked the judge to impose a higher penalty. Justice Parrott increased it to $125 with the agreement of the prosecutor. All of the parties, including the judge were aware that this case will be used to raise a constitutional challenge

During the appeal, attorneys asked the court to dismiss the charges against Lawrence and Garner on Fourteenth Amendment equal protection grounds, claiming that the law was unconstitutional since it prohibited sodomy between same-sex couples, but not between heterosexual couples. They also asserted a right to privacy and that the Supreme Court's decision in Bowers v. Hardwick was "wrongly decided". On December 22, Judge Sherman Ross denied the defense motions to dismiss. The defendants again pleaded "no contest". Ross fined them $200 each, the amount agreed upon in advance by both sides.

On November 3, 1999 a three-judge panel of the Texas Fourteenth Court of Appeals heard the case. On June 8, 2000 in 2–1 decision they ruled that the Texas law was unconstitutional. Justice John S. Anderson and Chief Justice Paul Murphy found that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on sex, race, color, creed, or national origin. J. Harvey Hudson dissented.

The Court of Appeals decided to review the case en banc. On March 15, 2001, without hearing oral arguments, it reversed the three-judge panel's decision and upheld the law's constitutionality 7–2, denying both the substantive due process and equal protection arguments.

But Attorneys for Lawrence and Garner decided to take it even further and asked the Texas Court of Criminal Appeals, the highest appellate court in Texas for criminal matters, to review the case, a year later on April 17, 2002, that request was denied.

The Review of the Supreme Court

On July 16, 2002 attorneys from Lambda Legal petitioned for certiorari with the Supreme Court of United Stated and asked them to consider:

1.     Whether the petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws;

2.    Whether the petitioners' criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment;

3.    Whether Bowers v. Hardwick should be overruled.

On December 2, 2002, the Court agreed to hear the case. In addition to their own brief Lambda Legal submitted sixteen amicus curiae briefs.. Submitting organizations included the American Bar Association, the American Psychological Society, the American Public Health Association, the Cato Institute, the Log Cabin Republicans, a group of history professors, and a group of religious denominations. Out of the amicus briefs for Texas two were by noteworthy scholars, Jay Alan Sekulow and Robert P. George, while the remainder represented religious and social conservatism. Several of them, depicted homosexuals as self-destructive, disease-prone, and promiscuous. The states of Alabama, South Carolina, and Utah advised the Court that unlike heterosexual sodomy, homosexual sodomy had "severe physical, emotional, psychological, and spiritual consequences."

On March 26, 2003 at oral argument, Paul M. Smith, an experienced litigator who had argued eight cases before the Supreme Court, spoke on behalf of the plaintiffs. Texas Attorney General John Cornyn, then a candidate for the US Senate, refused to have his office argue the case and Charles A. Rosenthal, District Attorney of Harris County, had to take over and represent the state.

The majority opinion

Justice Anthony Kennedy authored the majority opinion which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined. In the majority opinion the Court held that homosexuals had a protected liberty interest to engage in private, sexual activity and that homosexuals' moral and sexual choices were entitled to constitutional protection. Finally, the court stated that moral disapproval did not provide a legitimate justification for Texas's law criminalizing sodomy. "The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."

The rationale of the majority opinion was based on the historical review of the legislation that criminalized certain sexual practices, but without regard for the gender of those involved. Justice Kenndey cited the Model Penal Code's recommendations since 1955, the Wolfenden Report of 1963, and a 1981 decision of the European Court of Human Rights in Case 7525/76 Dudgeon v United Kingdom. He endorsed the views Justice Stevens had outlined in his dissent in Bowers and wrote: "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

The majority opinion also states that the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections. Justice Kennedy said that the Constitution protects "personal decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing" and that homosexuals "may seek autonomy for these purposes."  Holding that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual", the court struck down the anti-sodomy law as unconstitutional. Justice Kennedy emphasized that this decision deals only with sexual conduct in a private setting:

“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”


Justice Sandra Day O'Connor filed a concurring opinion in which she offered a different reason for invalidating the Texas sodomy statute. As one of the justices in the majority in Bowers she disagreed with the overturning of Bowers and disputed the court's application of the due process guarantees of liberty in this context. By choosing a less conflicting approach justice O’Connor argued that rather than including sexuality under protected liberty, she would strike down the law as violating the equal protection clause because it criminalized male–male but not male–female sodomy. In her opinion 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 the 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.


Justice Antonin Scalia wrote a dissent, which was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. Scalia objected to the Court's decision to revisit Bowers, pointing out an overwhelming amount of lower courts decisions that relied on Bowers that might now need to be reconsidered. He also pointed out 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 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 and 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 neutral observer, that the democratic rules of engagement are observed.”


The decision was met with both criticism and praise. President 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 repeal of the Texas sodomy provision, which he called a "symbolic gesture of traditional values". 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.

Just one day after the decision in Lawrence v. Texas, the Kansas Supreme Court ordered reconsideration of a case involving eighteen-year-old who had been sentenced to prison for 17 years for initiating oral sex on a fourteen-year-old boy. In 2005, the case reached the Kansas high court, which ruled that the sentence was unconstitutional, and, citing Lawrence, said the statute’s protections (Romeo and Juliet provision) must be extended to same-sex incidents.

Lawrence v. Texas, had a slow but strong impact on the issue of gay marriage. In 2003, the Massachusetts Supreme Judicial Court invalidated the state’s same sex marriage ban. In its decision the court relied on state constitution but mentioned Lawrence. In 2006, California Supreme Court allowed same-sex marriages and even though the decision was again based on the state constitution, this time the court specifically cited Lawrence v. Texas to say that same-sex couples have fundamental right to civil marriage.

Not all of the cases citing Lawrence v. Texas, have been decided in favor of same-sex plaintiffs. For example, Florida’s ban on adoption by gay couples stood, but Lawrence v. Texas paved the way to bigger positive changes for same-sex couples.


[Last updated in September of 2018 by Krystyna Blokhina Gilkis]