Lawrence v. Texas

8 Key excerpts on "Lawrence v. Texas"

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  A Year at the Supreme Court

  • Neal Devins, Davison M. Douglas, Neal Devins, Davison M. Douglas, Mark A. Graber(Authors)
  • 2004(Publication Date)
  • Duke University Press Books

    (Publisher)

  CHAPTER THREE The Supreme Court’s decision in Lawrence v. Texas declaring uncon-stitutional a Texas law criminalizing homosexual sodomy was, without question, a landmark. Not only did the Court find a constitutional right for consenting adults to engage in homosexual sodomy, it also spoke in surprisingly broad terms about the scope of the liberty protected by the due process clauses of the U.S. Constitution. In the aftermath of Lawrence , legal observers have struggled to under-stand all the decision’s ramifications. What does the Lawrence decision mean for a variety of other issues involving gays and lesbians—including most prominently same-sex marriage? And what does the broad language in Lawrence about the scope of constitutional protection for liberty mean in contexts other than gay rights? In other words, how big a landmark will Lawrence v. Texas ultimately prove to be? David Garrow, a frequent commentator on the Supreme Court for ma-jor newspapers and the author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade , a book that examines the Court’s individual liberty and privacy decisions of the past half-century, considers in this chapter the jurisprudential context of the Lawrence decision and its implications for subsequent constitutional claims. In Garrow’s view, Lawrence is best seen as part of a long progression of decisions dating from the 1960s in which the Court has extended constitutional protection for a range of private and intimate activities—decisions that Justice Anthony Kennedy referred to in Lawrence as ‘‘an emerging awareness that liberty

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  Sex and Privacy in American Law

  • Henry F. Fradella(Author)
  • 2023(Publication Date)
  • Academica Press

    (Publisher)

  Lawrence v. Texas in state courts beyond its immediate role decriminalizing certain sexual acts performed in private between consenting adults. Specifically, the study seeks to answer the following research questions:

  1. What are the specific types of cases in which courts grapple with applying Lawrence? Are they limited primarily to cases presenting questions about sexual privacy or LGBTQ+ rights, or do the cases present other types of questions?
  2. In what ways do courts accept litigants’ attempts to broadly construe Lawrence in ways that embrace or expand privacy and liberty protections? Conversely, under what circumstances do courts reject such attempts by narrowly construing Lawrence in ways that limit privacy and liberty protections?
  3. What extra-legal factors, if any, are related to how judges construe Lawrence? Are there geographical differences across the country? Are there differences by the sex, race, or political party of the judge?

  Chapter 3 summarizes the research methods used to answer these research questions.

  1. 64 Portions of this section are adapted from my prior writings on sodomy laws. Fradella, supra note 51, at 280–82; Henry F. Fradella & Kenneth Grundy, The Criminal Regulation of Sex: The Limits of Morality and Consent, in FRADELLA & SUMNER , supra note 5, at 183, 186–87.
  2. 65 John Boswell, On the History of Social Attitudes Toward Homosexuality from Ancient Greece to the Present, in GAYS AND THE MILITARY : THE UNITED STATES VERSUS JOSEPH STEFFAN 40–48, 40 (Marc Wolinsky & Kenneth Sherrill eds., 1993).
  3. 66 Genesis 19:1–29.
  4. 67 See Arthur E. Brooks, Note, Doe and Dronenburg: Sodomy Statutes Are Constitutional, 26 WM . & MARY L. REV . 645, 648 (1985) (citing Leviticus 18:22).
  5. 68 JOHN BOSWELL , CHRISTIANITY , SOCIAL TOLERANCE & HOMOSEXUALITY (1980); Robert K. Gnuse, Seven Gay Texts: Biblical Passages Used to Condemn Homosexuality, 45 BIBLICAL THEOLOGY BULL

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  Sex Wars

  Sexual Dissent and Political Culture (10th Anniversary Edition)

  • Lisa Duggan, Nan D. Hunter(Authors)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  Moving into the mainstream inevitably produces assimilation, with both gains and losses for the newly arrived group, as well as for their long-established new neighbors. In this case, one such gain and loss is the strengthening by extension, albeit with modifications, of conventional social norms regarding sexuality. Many lesbian and gay Americans want nothing as much as they want the freedom to achieve precisely that kind of assimilation, with the attendant protections and comfort which such status carries. They are certainly correct to understand their exclusion from marriage and similar social institutions as evidence of a breathtaking assertion of superiority by those who would perpetuate the exclusion. But being allowed into the institution, and even changing it in the process, will not suffice as freedom for those who object to organizing virtually all of a society’s laws regarding intimate adult relationships around marriage.

  The fact that the Lawrence decision is consistent with the model of neoliberal civil rights does not mean, of course, that it is inherently or necessarily limited in these ways. The adjudication of Lawrence required no consideration of issues beyond the reach of neoliberal equality; indeed the sweep of the Court’s opinion was surprising for its breadth, not its limits. It is simply important not to overstate the zone of freedom that it establishes. The decision leaves enormous flexibility as to how broadly or narrowly future courts will interpret it. Indeed, we have barely begun to create the meaning of Lawrence.

  Conclusion

  The Supreme Court’s decision in Lawrence v. Texas turned an important corner in the history of state regulation of sexuality in the United States. In essence, the decision brought American sex law into the twentieth century, just in time for the twenty-first. Where before there had been enormous variety among state laws, there is now a key point of uniformity: private consensual sexual intimacy between adults cannot be criminalized. Future legal disputes will focus more on openness than on privacy.

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  Section IV Sexual Dissent in the New Millennium

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  Same Sex, Different Politics

  Success and Failure in the Struggles over Gay Rights

  • Gary Mucciaroni(Author)
  • 2009(Publication Date)
  • University of Chicago Press

    (Publisher)

  3 Lawrence was a white, fifty-five-year-old medical technologist at a clinic. Garner was black, thirty-one years old, and unemployed. Neither man had ever been involved in gay rights activ-ism. The authorities jailed the men and charged them with violating the Texas Homosexual Conduct law by 4 legalizing homosexual conduct 115 engaging in “deviate sexual intercourse, namely anal sex, with a member of the same sex (man)” (quoted in opinion of U.S. Supreme Court Jus-tice Anthony Kennedy for its decision in Lawrence v. Texas ). Lawrence and Garner entered pleas of no contest. The magistrate fined each of them $200 and ordered them to pay court costs. The night after the arrests, a local gay rights activist, Lane Lewis, received word of the incident. Lewis procured lawyers for the men and persuaded Lawrence and Garner that a legal challenge to the Texas law could have a far-reaching impact for gay rights (Carpenter 2004). A Harris County Criminal Court convicted Lawrence and Garner, and a Texas court of appeals upheld their convic-tions. Next, the U.S. Supreme Court agreed to hear the case, Lawrence v. Texas, and in 2003, it decided in favor of the two men. The Court ruled that the state’s law ran afoul of the due process rights guaranteed in the Fourteenth Amendment and it overturned the Court’s 1986 precedent, Bowers v. Hardwick, which had found such laws constitutional. As these stories illustrate, sodomy laws had profound impacts on the lives of some gay men. Their elimination could have a similarly profound impact on the gay rights movement. The immediate problem that sodomy laws posed was their threat to privacy. 4 Police and prosecutors often used the laws to harass homosexuals and enforced them selectively against gays even when they applied to heterosexuals as well. Individuals accused of violating them often received unwanted attention from the media, which could ruin their personal and professional lives (Brantner 1992, 498).

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  Courts Liberalism And Rights

  Gay Law And Politics In The United States and Canada

  • Jason Pierceson(Author)
  • 2008(Publication Date)
  • Temple University Press

    (Publisher)

  6 Lessons from Continued Sodomy Adjudication A S LITIGATION EFFORTS spread to other states, a mixed record devel-oped. Some state high courts went the way of Kentucky and Tennessee, while others were more hesitant, not wishing to challenge political and legal moralism. However, sodomy law repeal efforts without litigation achieved even fewer results for reformers. This demonstrates the significant power of courts to achieve change, especially when that change is framed in a way that reinforces powerful strains of a political culture. T EXAS Although the U.S. Supreme Court invalidated the Texas sodomy law in Lawrence v. Texas in 2003, developments in Texas before this decision provide an excel-lent example of the role that liberal legal arguments can play in contemporary U.S. politics, as well as the continued salience of morality politics, especially in socially conservative states where courts are more reluctant to act aggressively. Until recently, Texas was one of four states to criminalize sodomy for persons of the same sex only. A sodomy law dating from 1860 relied on common law inter-pretations from the courts to give it effect, since the wording of the statute was quite general. 1 The law was given specificity by the legislature in 1943, when a discussion of specific body parts and specific sexual acts, including oral sex, were included in the definition of sodomy. 2 This expansion of the law was upheld by the Texas courts as a legitimate exercise of legislative authority and not violative of any fundamental rights. 3 In 1969, the revised law was challenged in federal court. The case first involved a gay man (or as the case opinion stated “a confessed homosexual”) who had been arrested for having sex with another man in a public restroom in Dallas. The case was soon overshadowed with the concerns of heterosexuals, however, since a married couple and a heterosexual male who claimed they lived under the threat of future prosecution joined the case.

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  Diversity and European Human Rights

  Rewriting Judgments of the ECHR

  • Eva Brems(Author)
  • 2012(Publication Date)
  • Cambridge University Press

    (Publisher)

  As a consequence, some lower courts interpreting Lawrence have not taken the majority’s anti- discrimination rhetoric seriously, observing that the Court clearly chose not to rule on the equality claim. See e.g. US Court of Appeals for the First Circuit, Cook v. Gates, 528 F 3d 42, 61, 9 June 2008 (holding that, because Lawrence ‘explicitly declined to base its ruling on equal protection principles . . . there is no basis for arguing that Lawrence changed the standard of review applicable to a legislative classification based on sexual orientation’ (citation omitted)). 77 As explained in the introduction to this chapter, I have proposed revisions only to Lustig- Prean, with the understanding that I would make similar changes to Smith. 78 I use the term ‘privacy’ interchangeably with ‘private life’ in this chapter. See note 6 above. 79 See e.g. X. Arzoz Santisteban, ‘Artículo 8: Derecho al respeto de la vida privada y familiar’, in I. Lasagabaster Herrarte (ed.), Convenio Europeo de Derechos Humanos: Comentario Sistemático (Madrid: Civitas Ediciones, 2004), pp. 260–6; J. Marshall, Personal Freedom Through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2009). lustig-prean and beckett v. united kingdom 311 contextualise and facilitate understanding of the Revisions – particularly given that the Revisions themselves do not cite these US sources. In an influential 1992 article, Kendall Thomas identified ‘three broad con- ceptions of the constitutional right to privacy in contemporary [US] case law and literature’; he called these ‘zonal, relational and decisional’. 80 The right to zonal (or ‘spatial’) privacy refers to the right to a physical space – paradigmati- cally, the home – that is free from government intrusion and surveillance.

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  Culture Wars in America

  A Documentary and Reference Guide

  • Glenn H. Utter(Author)
  • 2009(Publication Date)
  • Greenwood

    (Publisher)

  As long as some states were free to exercise the option of criminalizing sodomy, the question of same-gender marriage appeared to present a diminished threat to those who objected to such marriages on religious and moral grounds. Changes in attitudes toward homosexual individuals in recent decades are reflected in this Supreme Court decision, which recognizes a right to privacy in those situations that involve the private actions of consenting adults. However, with the Supreme Court decision, conservative individuals and groups, viewing the decision as auguring the ultimate judicial sanctioning of same-gender marriage, began to push for laws and constitu- tional amendments at the state and federal levels to ban such marriages, while advocates lobbied for the right of same-gender couples to marry as a basic right of equal treatment. Sex Education, Homosexuality, and Gay Marriage 225 Lawrence et al. v. Texas, Dissenting Opinion • Document: Excerpt from Justice Antonin Scalia’s dissenting opinion, joined by Chief Justice William Rehnquist and Justice Clarence Thomas. • Date: June 26, 2003. • Where: U.S. Supreme Court building, Washington, DC. • Significance: Justice Scalia strongly disagreed with the majority decision, reflecting the views of social conservatives and funda- mentalist Christians. Scalia accused the majority of taking sides in the culture war, supporting a particular view of homosexuality that supposedly pervades the legal profession. DOCUMENT ‘‘Liberty finds no refuge in a jurisprudence of doubt.’’ Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844 (1992). That was the Court’s senten- tious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U.S. 113 (1973). The Court’s response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U.S. 186 (1986), is very dif- ferent. The need for stability and certainty present no barrier.

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  Constitutional Politics in a Conservative Era

  Special Issue

  • Austin Sarat(Author)
  • 2008(Publication Date)
  • JAI Press Inc.

    (Publisher)

  In Romer , the Court relied on the Casey conditions, and its support of a robust PBD, to find unconstitutional an amendment to the Colorado Constitution that would have denied gays the use of regular legislative, executive, and state court means to protect their rights. Finally, in Lawrence , the Court reaffirmed Casey ’s conditions for overturning landmark decisions, and engaged in PBD that resulted not simply in overturning Bowers on minimalist equal protection grounds, but in an expansive opinion extending rights of Expansion of Gay Rights in a Conservative Age 189 personhood and liberty to gays, one that did not preclude the Court from deciding that gays have a right to same-sex marriage under the Constitution. If the Supreme Court chose to be strategic with regard to its institutional needs, in Casey and Lawrence , it would be far more concerned about the political reactions by Congress, the states, and the people. Strategic factors as explanations for Court action in Casey and Lawrence are submerged because Justices accept institutional norms that ask them to consider substantive constitutional questions as to what constitutes privacy, personhood, and liberty through the mutual construction process as described above. The Court does not focus on its strategic institutional interests; it engages in the process to decide whether rights have been violated by government, in comparison to what rights have been protected in the past. This does not mean that Justices never think strategically. Rather, they rarely think in solely strategic terms. 64 There are indications of strategic considerations in Casey and Lawrence . This seems particularly so in O’Connor’s concurrence in Lawrence , where she specifically decides to leave for another day the question of the constitutionality of laws that outlaw sodomy for both heterosexuals and homosexuals, trusting that state legislatures will not pursue such laws given the Lawrence decision.

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