Lawrence v. Texas (2003)
Monday, September 7, 2009 at 2:45PM To view the case, click here.
Issue. Does a law criminalizing gay sodomy between consenting adults in private violate the Due Process Clause of the 14th Amendment (liberty right) and/or the Equal Protection Clause?
Background. For some reason, the police in Texas caught Lawrence in the privacy of a bedroom engaging in the consensual act of anal sex. Lawrence was arrested under Texas's anti-sodomy law. Lawrence claimed that the law violated his rights under the Equal Protection Clause, but the trial court rejected that argument. Lawrence pleaded nolo contendre (does not contest the charges) and he was fined $200 plus court costs.
The case was appealed on Equal Proection and Substantive Due Process (liberty and privacy rights) grounds. The Court of Appeals in Texas rejected those constitutional arguments and affirmed the conviction. The Supreme Court granted cert to consider whether: 1.) Texas's statute violated the Equal Proection Clause since it only criminalized same-sex and not different-sex couples; 2.) Texas's statute violated the vital liberty and privacy rights of Lawrence protected by the Due Process Clause of the 14th Amendment; and 3.) Bowers should be overruled.
Court's Analysis. The majority of the Court found that Texas's statute violated the Due Process Clause and overruled the decision in Bowers. The majority criticized the Bowers majority for framing the issue as just a fundamental right to engeg in homosexual sodomy. The issue involved more - a right to engage in private, adult, consensual intimate relations. Cheapening the issue on just gay sodomy is the same as saying that marriage is just a right to have sex.
The majority also noted that the historical prohibition against sodomy applied to both same-sex and opposite-sex couples; that the laws were rarely enforced against acts engaged by consenting adults in the privacy of their homes; and that the Supreme Court has consistenly, in the past 50 years, protected the rights of individuals to arrange their intimate and private lives.
Justice O'Connor, who was in the majority in Bowers, concurred on the grounds that the law violated the Equal Protection Clause. Justice O'Connor did not overturn herself by refusing to address whether such laws, in general (no matter who it applied to) violates the liberty and privacy rights guarnteed under the Due Process Clause.
Justice Scalia, in dissent, tried to make a stare decisis argument that was more targeted towards abortion rulings that sodomy rulings. Scalia did not like how the Court could change its mind in a little over 17 years - based on the makeup of the Court. But, as the majority noted, Bowers was wrong when it was decided in 1986 and it was wrong in 2003. Additionally, Scalia went on an unnecessary tirade on how this decision was influenced by the homosexual agenda and lobby and not the Constitution.
My Analysis. Just as the Court was wrong in Bowers, they were absolutely correct in Lawrence. Now, I believe this liberty and privacy right comes from the 9th Amendment and not the 14th Amendment Due Process Clause. It is crazy that two adults could be criminally prosecuted for engaging in a private consensual sexual act that causes absolutely no harm to others. If that is not a right retained by the people (not enumerated in the first Eight Amendments to the Constitution) then I don't know what one is. This is not the same as gay marriage.
While I am absolutely comfortable with the majority's opinion, I feel O'Connor copped out just because she did not want to overrule her decision from Bowers and I feel Scalia's opinion was disgusting, unnecessary and shows a distasteful bitterness. At least Justice Thomas noted that anti-sodomy laws are silly. Look, if you feel that there is no liberty or privacy interest in the Constitution then say so. Further, even if you disagree with all the other privacy cases involving contraceptives and abortion they are still the law of the land and Bowers was wrong based on those precedents. To attribute this decision to a homosexual lobby and not 50 years of constitutional law is inflammatory, disenguous, plays to a certain segment of our population and is as unnecessary in a judicial opinion as Taney's voluminous dicta in Dred Scott.