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Lawrence v. Texas, United States Supreme Court (26 June 2003)

Procedural Posture

The defendants were convicted of “anal sex with a member of the same sex” in violation of Section 21.06 of the Texas Penal Code. At trial, they challenged the law on the grounds that it violated the Equal Protection Clause of the 14th Amendment of the United States Constitution. The trial court rejected that challenge and convicted both defendants, fining them $200. The defendants appealed to the Court of Appeals. After hearing the case en banc, the Court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. The Court of Appeals considered the Supreme Court’s 1986 decision in Bowers v. Hardwick to be controlling law. The Supreme Court granted the petition for writ of certiorari (review).


Police officers went to a private residence in response to a reported weapons disturbance. They entered John Geddes Lawrence’s apartment and observed him and Tyrone Garner engaged in a sexual act. Both men were arrested, held in custody overnight, and charged.


Whether the Texas law criminalising sexual conduct between same-sex couples but not opposite-sex partners violated the Constitution’s guarantee of equal protection of the laws; whether the criminalisation of adult consensual sexual conduct violates the Constitution’s guarantee of privacy.

Domestic Law

Constitution of the United States, 14th Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).

Bowers v. Hardwick, United States Supreme Court, 1986 (upholding State law criminalising sodomy against constitutional challenge).

Carey v. Population Services International, United States Supreme Court, 1977 (invalidating State law forbidding sale or distribution of contraceptives to persons under 16 years of age).

Eisenstadt v. Baird, United States Supreme Court, 1972 (invalidating State law that prohibited the distribution of contraceptives to unmarried persons). Griswold v. Connecticut, United States Supreme Court, 1965 (invalidating a State law that prohibited the use of contraceptives by married couples).

Planned Parenthood of Southeastern Pa. v. Casey, United States Supreme Court, 1992 (holding that United States laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education).

Roe v. Wade, United States Supreme Court, 1973 (recognising the right of a woman to make certain fundamental decisions concerning her destiny, including the right to terminate a pregnancy).

International Law

Dudgeon v. United Kingdom, ECtHR, 1981 (finding that the sodomy laws of Northern Ireland violated the right to privacy under the European Convention).

Modinos v. Cyprus, ECtHR, 1993 (finding that the sodomy laws of Cyprus violated the right to privacy under the European Convention).

Norris v. Ireland, ECtHR, 1988 (finding that the sodomy laws of Ireland violated the right to privacy under the European Convention).

Reasoning of the Court

Majority Opinion (per Justice Kennedy).

With respect to Bowers v. Hardwick, the issue was framed as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy”. According to the majority, that initial statement disclosed “the Court’s own failure to appreciate the extent of the liberty at stake”.

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here … seek to control a personal relationship that whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

Next the majority opinion considered Bowers’ use of history. Contrary to Bowers’ claims, the majority found that ancient criminal laws were not directed at “homosexuals” as a particular category, but at certain kinds of non-procreative sex. “The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.”

Although the majority questioned Bowers’ description of historical precedent, it recognised that moral disapproval of homosexual conduct was strong and longstanding, but affirmed that moral disapproval was not the key question. “The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.”

In deliberate but vague language, the Court then addressed the two legal arguments in contention: Bowers’ judgment that the essential issue was whether individuals had the right to engage in homosexual sodomy, and the alternative view that the overriding principle is one of privacy (which should protect the right of individuals to engage in consensual sexual behaviour in private). The majority opinion concluded that history and tradition were not dispositive. It faulted Bowers for deciding that claims made on behalf of homosexual sodomy were unfounded while failing to take into account authorities “pointing in an opposite direction”. The Court cited both the 1957 Wolfenden Committee Report and the European Court of Human Rights’ decision in Dudgeon v. United Kingdom. “Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the [Dudgeon] decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.” The Court returned to this point later in its argument. “To the extent that Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere.” It noted that other nations outside the Council of Europe had also found the right at issue here to be “an integral part of human freedom”.

Reviewing United States cases that developed the notion of liberty protected by the Due Process Clause (sometimes referred to as substantive due process, to distinguish it from procedural due process), the Court relied on Planned Parenthood of Southeastern Pa. v. Casey for the proposition that: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment”.

Noting again the practice of other countries, the majority stated: “There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.” United States laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Bowers v. Hardwick was overruled and the judgment of the Court of Appeals reversed.

Concurrence (per Justice O’Connor)

Justice O’Connor relied on the 14th Amendment’s Equal Protection Clause. Legislation would be presumed valid, and would be sustained, if the classification drawn by the statute was rationally related to a legitimate State interest. In American jurisprudence this is referred to as rational basis review. “We have consistently held that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state interests.” Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the sole purpose of disadvantaging a group.

Justice O’Connor observed that the Texas statute treated the same act (anal sex) differently, based only on the identity of the participants. It thus made “homosexuals unequal in the eyes of the law by making particular conduct – and only that conduct – subject to criminal sanction”. In addition to the consequences that flowed from a conviction, the effect of the sodomy law was to brand “all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else”.

According to Justice O’Connor, “Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalise homosexual sodomy. But the Equal Protection Clause prevents a State from creating a classification of persons undertaken for its own sake. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior.”

Texas argued that the law did not discriminate against homosexual persons, only against homosexual conduct. Justice O’Connor rejected this argument. She found that the conduct in question was closely “correlated” with being homosexual. The law therefore was targeted at more than conduct. It was instead: “directed toward gay persons as a class. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Because of the sodomy law, as the State of Texas admitted, simply being homosexual carried the presumption of being a criminal.

“The State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass … cannot be reconciled with the Equal Protection Clause.”

Lawrence v Texas, United States Supreme Court (full text of judgment, PDF)