| Lawrence v. Texas | ||||||
|---|---|---|---|---|---|---|
 Supreme Court of the United States |
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| Argued March 26, 2003 Decided June 26, 2003 |
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| Full case name | John Geddes Lawrence and Tyron Garner v. Texas | |||||
| Docket nos. | 02-102 | |||||
| Citations | 539 U.S. 558 (more) 123 S. Ct. 2472; 156 L. Ed. 2d 508; 2003 U.S. LEXIS 5013; 71 U.S.L.W. 4574; 2003 Cal. Daily Op. Service 5559; 2003 Daily Journal DAR 7036; 16 Fla. L. Weekly Fed. S 427 |
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| Prior history | Defendants convicted, Harris County Criminal Court (1999), rev'd, 2000 WL 729417 (Tex. App. 2000) (depublished), aff'd en banc, 41 S.W.3d 349 (Tex. App. 2001), review denied (Tex. App. 2002), cert. granted, 537 U.S. 1044 (2002) | |||||
| Subsequent history | Complaint dismissed, 2003 WL 22453791, 2003 Tex. App. LEXIS 9191 (Tex. App. 2003) | |||||
| Argument | Oral argument | |||||
| Holding | ||||||
| A Texas law classifying consensual, adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment. | ||||||
| Court membership | ||||||
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| Case opinions | ||||||
| Majority | Kennedy, joined by Stevens, Souter, Ginsburg, Breyer | |||||
| Concurrence | O'Connor | |||||
| Dissent | Scalia, joined by Rehnquist, Thomas | |||||
| Laws applied | ||||||
| U.S. Const. amend. XIV; Tex. Penal Code § 21.06(a) (2003) | ||||||
Lawrence v. Texas, 539 U.S. 558 (2003),[1] was a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the sodomy law in Texas. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize sodomy between consenting same-sex adults acting in private. It also invalidated the application of sodomy laws to heterosexual sex.[citation needed]
The case attracted much public attention, and a large number of amici curiae ("friends of the court") briefs were filed. Its outcome was celebrated by gay rights advocates, who hoped that further legal advances might result as a consequence.
Contents |
Under the common law, the existence of rights of sexual partners were recognized through the marriage contract. That is, in common law there was no stand-alone right to engage in sexual activity, be they male or female, adult or minor. But, it is a basic legal principle under the common and statutory laws that everything that is not forbidden by the common and statutory law is allowed. As sexual acts usually take place in private, few cases involving engagement in sodomy and fornication came before the courts, and no precedent was established under the common law forbidding fornication; with sodomy, the common law was mixed.
The common law came from Great Britain with the British colonists, and upon the American Revolution, became the law of the United States, except where contradicted by statute, or, above all, the Constitution. Because fornication and sodomy were viewed as evil, several U.S. jurisdictions passed statutes forbidding them.
The precise legal definition of state law prohibiting sodomy (or "crimes against nature") was a frequent legal dispute in the United States as early as the early 1800s. Some state courts ruled that the law only applied to anal sex, while other State courts ruled that their sodomy prohibition also included oral sex.
Legal punishments often included heavy fines and or long prison sentences, with some states (Illinois being the first in 1827) specifically denying other rights, such as suffrage, to anyone convicted of the crime of sodomy. In the late nineteenth and early twenty centuries, several states imposed various eugenics laws against anyone deemed to be a "sexual pervert". As late as 1970, Connecticut denied at least one driver’s license to a man for being an "admitted homosexual".
An organized American gay rights movement emerged in the 1950s, and sought to change, among other things, the various criminal laws used against gay Americans. Sex researcher Alfred Kinsey was one of the early, well known, post-war proponent of reforming these criminal laws, yet few lawyers or judges expressed much public support.
In 1961 the American Law Institute's Model Penal Code expressly advocated repealing sodomy laws as they applied to private, adult and consensual behavior.[2] Yet, it would be a few years later before the ACLU took its first major case in opposition to these laws.[3] Most judges were largely unsympathetic to the substantive due process claims raised.
In 1964, Indiana Supreme Court Justice Amos Jackson became the first appointed State Judge to write a dissent criticizing sodomy laws, and he would continue to oppose the laws in his dissents until he retired in 1970.
By the 1960s, attitudes towards sexual relations, marriage, sexual orientation, and the role of women began to change. This was sped along with the advent of safe and effective birth control devices and medicines. Attitudes strongly discouraging premarital sex decreased in intensity. "No-fault" divorce laws made getting divorces easier, and the number of unmarried partners living together (a relationship formerly frowned upon) soared. As part of this change in societal norms, the acceptance of same-sex relationships and the number of people openly seeking such relationships increased, to the point that many states repealed their sodomy laws in the 1970s. Also at this time, Great Britain's 1957 Wolfenden Report recommended the repeal of British sodomy laws. Ten years later, Britain's Sexual Offences Act 1967 did liberalize British sex crime laws, though it was not a total equalization between gay and straight couples.
In Griswold v. Connecticut (1965), the Supreme Court struck down a law barring the use of contraceptives by married couples. Griswold was the first Supreme Court case to recognize a right to privacy, which was based not on any specific guarantee in the Bill of Rights, but was part of "penumbras, formed by emanations from those guarantees that help give them life and substance", established through case law[4]. Such penumbras include: the Fourth Amendment, which protects private homes from searches and seizures without a warrant based on probable cause; the Fifth Amendment, which prohibits the deprivation of liberty without due process of law; and the Ninth Amendment, which specifies that the enumerated rights in the Bill of Rights cannot be construed as being an exhaustive list of rights. The Court limited its recognition of this right to married couples. Eisenstadt v. Baird, decided in 1972, potentially expanded the scope of sexual privacy rights by holding in dicta that if the "right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." This gave constitutional protection to unmarried persons using and purchasing birth control. In 1973, the choice whether or not to have an abortion was found to be protected by the Constitution in the extraordinarily controversial Roe v. Wade.
In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home. The Court rejected this challenge by a 5 to 4 vote. Justice Byron White's majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that longstanding moral antipathy toward homosexual sodomy was enough to argue against the notion that the Framers of the Constitution would have envisioned a "right" to sodomy. If the court were to hold otherwise, Justice White argued, the Court would be substituting its own moral judgments for those of the people's elected representatives.
Justice Blackmun wrote a dissent in Bowers, in which he argued that the majority's conception of liberty was too narrow. He used the Court's recent precedents on freedom of intimate association, such as Roberts v. U.S. Jaycees (1984), to advocate for a more open-ended balancing test in such cases.
Justice Stevens also believed that the majority had defined the right at stake too narrowly. He filed a dissent, based not on the Court's intimate association cases, but on a thorough analysis of the Court's substantive Due Process liberty cases. Justice Stevens interpreted Eisenstad as fundamentally affecting the scope and nature of substantive Due Process liberty rights, based on the idea that the Constitution protects people as individuals, not as family units.[5] He summarized the Court's then existing substantive Due Process liberty right as such: "[I]ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." He then reasoned that because state intrusions are equally burdensome on an individual's personal life regardless of his marital status or sexual orientation, then there is no reason to treat the rights of citizens in same-sex couples any differently.[6] Thus, Justice Stevens would have applied the substantive Due Process liberty protection equally, "regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes."[7] In 2003, the Lawrence majority relied heavily on Justive Stevens' Bowers dissent, and ultimately decided that "Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today."[8]
The Kentucky Supreme Court declined to follow the Court's analysis in Kentucky v. Wasson (1992), striking down its state's sodomy law on the basis of its state constitution. In 1996's Romer v. Evans, the U.S. Supreme Court struck down a Colorado constitutional provision repealing local antidiscrimination ordinances involving sexual orientation.
The petitioners, John Geddes Lawrence, a medical technologist, then age 55, and Tyron Garner (1967–2006),[9] then 31, were alleged to have been engaging in consensual anal sex in Lawrence's apartment in the outskirts of Houston between 10:30 and 11 p.m. on September 17, 1998 when Harris County sheriff's deputy Joseph Quinn entered the unlocked apartment, with his weapon drawn, arresting the two.
The arrests had stemmed from a false report of a "weapons disturbance" in their home — that because of a domestic disturbance or robbery, there was a man with a gun "going crazy." The person who filed the report, neighbor Robert Royce Eubanks, then 40,[10] had earlier been accused of harassing the plaintiffs. Despite the false report, probable cause to enter the home was not at issue in the case. Eubanks, with whom Garner was romantically involved at the time of the arrest,[11] later admitted that he was lying, pleaded no contest to charges of filing a false police report, and served 15 days in jail.
Lawrence and Garner were arrested, held overnight in jail, and charged with violating Texas's anti-sodomy statute, the Texas "Homosexual Conduct" law. The law, Chapter 21, Sec. 21.06 of the Texas Penal Code, designated it as a Class C misdemeanor when someone "engages in deviant sexual intercourse with another individual of the same sex," prohibiting anal and oral sex between members of the same sex.[12] They later posted $200 bail.
On November 20, Lawrence and Garner pleaded no contest to the charges. They were convicted by Justice of the Peace Mike Parrott, but exercised their right to a new trial before a Texas Criminal Court, where they asked the court to dismiss the charges against them on Fourteenth Amendment equal protection grounds, claiming that the law was unconstitutional since it prohibits sodomy between same-sex couples, but not between heterosexual couples, and also on right to privacy grounds. After the Criminal Court rejected this request, they pleaded no contest, reserving their right to file an appeal, and were fined $200 each (out of a maximum fine of $500 each), plus $141.25 in court costs.
On November 4, 1999, arguments were presented to a three-judge panel of the Texas Fourteenth Court of Appeals on both equal protection and right to privacy grounds. John S. Anderson and chief justice Paul Murphy ruled in the appellants' favor, finding that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination because of sex, race, color, creed, or national origin. J. Harvey Hudson dissented. This 2-1 decision ruled the Texas law was unconstitutional; the full court, however, voted to reconsider its decision, upholding the law's constitutionality 7-2 and denying both the substantive due process and the equal protection arguments. On April 13, 2001, the Texas Court of Criminal Appeals was petitioned to hear the case; the Court, the highest appellate court in Texas for criminal matters, denied review. The case then arrived at the U.S. Supreme Court, with a petition being filed July 16, 2002.
The Supreme Court granted a writ of certiorari agreeing to hear the case on December 2, 2002. Thereafter, a wide array of organizations filed amicus curiae briefs on behalf of the petitioners as well as the respondents.[13]
Paul M. Smith delivered the oral argument on behalf of Lawrence on March 26, 2003; the decision was rendered on June 26. The questions before the court were the following:
The Supreme Court voted 6-3 to strike down the Texas law, with five of the justices holding that it violated due process guarantees, and a sixth justice, Sandra Day O'Connor, found that it violated equal protection guarantees. The majority opinion, which overrules Bowers v. Hardwick, covers similar laws in 12 other states. Justice Anthony Kennedy wrote the majority opinion; Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. Kennedy spent most of his opinion casting doubt on the factual findings of the court in Bowers, that homosexual sodomy is a widely and historically condemned practice. For example, Kennedy cited a 1981 European Court of Human Rights case Dudgeon v. United Kingdom, as part of its argument against the Bowers court's finding that Western civilization condemned homosexuality (the case led to homosexuality being de-criminalised in Northern Ireland, having been decriminalised in the rest of Britain before: England & Wales 1967, Scotland 1980). Chief Justice Burger, concurring in Bowers, had held that "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization"; Kennedy's citation of European law was in part a response to this blanket citation of the values of "Western civilization."
The Court concluded that, "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 decision found 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." 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. Kennedy's opinion crucially grounded the right of consenting adults to have sex on how intimate and personal the conduct was to those involved, not on the conduct being traditionally protected by society (as in Bowers), procreative (as in Eisenstadt and Roe), or conducted by married people (as in Griswold). This opened the door in theory to protection of a whole host of sexual activity between consenting adults not protected by other decisions. Kennedy was careful however not to extend the opinion to include governmental recognition of such relationships.
Justice Sandra Day O'Connor filed a concurring opinion, agreeing with the invalidation of the Texas anti-sodomy statute, but not with Kennedy's rationale. O'Connor disagreed with both the overturning of Bowers (she had been in the Bowers majority) and with the court's invocation of due process guarantees of liberty in this context. O'Connor instead preferred the equal protection argument which would still strike the law because it was directed against a group rather than an act, but would avoid the inclusion of sexuality under protected liberty.
O'Connor maintained that a sodomy law that was neutral both in effect and application might well be constitutional, but that there was little to fear because "democratic society" would not tolerate it for long. She left the door open for laws which distinguished between homosexuals and heterosexuals on the basis of legitimate state interest, but found that this was not such a law. In some ways, O'Connor's opinion was broader than the majority's, for as Antonin Scalia noted in dissent it explicitly cast doubt on whether laws limiting marriage to heterosexual couples could pass rational-basis scrutiny. O'Connor explicitly noted in her opinion that a law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to preserve traditional marriage, and not simply based on the state's dislike of homosexual persons.
Justice Antonin Scalia wrote a sharply worded dissent, which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions from lower courts based on Bowers that, with its overturning, might now be open to doubt:
Scalia noted that the same rationale used to overturn Bowers (looking to (1) "whether its foundations have been 'eroded' by subsequent decisions; (2) it has been subject to 'substantial and continuing' criticism; (3) it has not induced 'individual or societal reliance'") could be applied to overturn the Roe v. Wade decision, which the Justices in the majority in Lawrence had just recently upheld in Planned Parenthood v. Casey.
Scalia also criticizes the writers of the opinion for their unwillingness to give the same respect to the doctrine of stare decisis that some of them applied in Casey . There, Scalia notes, stare decisis was of the utmost importance, and that there the court gave even more weight to the concept because of the divisive nature of the case. The Lawrence decision "do[es] not bother to distinguish—or indeed, even bother to mention—the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it." He goes on to write "Today, however, the widespread opposition to Bowers, a decision resolving an issue as 'intensely divisive' as the issue in Roe, is offered as a reason in favor of overruling it."
Some federal courts have held that the majority opinion in Lawrence was narrow. Upon rehearing Williams v. Pryor after Lawrence was decided, the Eleventh Circuit Court of Appeals concluded: "In short, we decline to extrapolate from Lawrence and its dicta a right to sexual privacy triggering strict scrutiny. To do so would be to impose a fundamental-rights interpretation on a decision that rested on rational-basis grounds, that never engaged in Glucksberg analysis, and that never invoked strict scrutiny" Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004). Accordingly, Alabama's ban on the sale of sex toys was upheld. In contrast, facing identical facts, the Fifth Circuit struck down Texas' 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. Reliable Consultants, Inc., v. Earle, No. 06-51067, 2008 WL 383034 (5th Cir. Feb. 12, 2008).
Scalia also averred that, State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices.
With this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally.
Justice Thomas, in a separate short dissenting opinion, wrote that the law which the Court struck down was "uncommonly silly" (a phrase from Justice Potter Stewart's dissent in Griswold v. Connecticut), but that 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.
Lambda Legal, which brought the case, hailed the decision as "a legal victory so decisive that it would change the entire landscape for the LGBT community."[14] 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."[15] The Lambda Legal Defense and Education Fund'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."[16]
These reactions reflect widespread opinion that Lawrence v. Texas may ultimately be one of the Supreme Court's more influential decisions.[citation needed] Prof. Laurence Tribe has written that Lawrence "may well be remembered as the Brown v. Board of gay and lesbian America."[17]
Broader implications of this decision have been speculated, including the following:
As Justice Scalia and commentators have noted, the majority did not appear to apply the standard of review, strict scrutiny, which would be appropriate if the Lawrence majority had recognized a full-fledged "fundamental right."[28] Had a fundamental right been present, any burden on that right would only have been held constitutional had it survived "strict scrutiny" and been found to be narrowly tailored to further a compelling governmental interest.[29] Scalia insists the majority, instead, applied "an unheard-of form of rational-basis review that will have far-reaching implications beyond this case."[28]
However, Justice Scalia's limited interpretation of Lawrence through the lens of Gluckberg's narrow two-tiered scrutiny fails to reckon with the majority's opinion on its own terms. For example, Nan 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, as too restrictive.[30] This interpretation is more consistent with the open-ended balancing style that the more liberal justices have consistently advocated.[31] For example, in the very case of Washington v. Glucksberg, cited by Justice Scalia in his Lawrence dissent, Justice Souter argued at length 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.[32] Similarly, Justice Stevens has repeatedly criticised tiered scrutiny, and prefers a more active judicial balancing test based on reasonability.[33] Thus, according to the more liberal wing of the Court, in order to ensure that a government's action is not arbitrary, the government must present some evidence to justify their decisions when they interfere with a person's liberty, which they define more broadly. On oral argument in Lawrence, Justice Souter found the justifications Texas presented unconvincing:
Thus, based on the weakness of the justifications presented by Texas, the Court was forced to conclude: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."[35]
Works related to Lawrence v. Texas at Wikisource Works related to Lawrence v. Texas at Wikisource
| ←United States Supreme Court | Lawrence v. Texas Syllabus |
| 'Lawrence v. Texas, 539 U.S. 558 (2003), was a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the criminal prohibition of homosexual sodomy in Texas. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, but had upheld the challenged Georgia statute, not finding a constitutional protection of sexual privacy. — Excerpted from Lawrence v. Texas on Wikipedia, the free encyclopedia. |
| Court Documents |
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| Opinion of the
Court |
| Concurring Opinion O’Connor |
| Dissenting Opinions Scalia Thomas |
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Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S. 186, controlling on that point.
Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3—18.
(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court’s initial substantive statement–“The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy … ,” 478 U.S., at 190–discloses the Court’s 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 said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They 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. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3—6.
(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U.S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers 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. Far from possessing “ancient roots,” ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850. The Nation’s laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U.S. 833, 857. Pp. 6—12.
(c) Bowers’ deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851–which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education–and Romer v. Evans, 517 U.S. 620, 624–which struck down class-based legislation directed at homosexuals–cast Bowers’ holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828. Bowers’ holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855—856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 12—17.
(d) Bowers’ rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life. Pp. 17—18.
41 S. W. 3d 349, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion.
   | Lawrence v. Texas, 539 U.S. 558 (2003) - LAWRENCE V. TEXAS |
| | The Invasion of Sexual Privacy - SSRN-The Invasion of Sexual Privacy by Ali Khan |
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