Lawrence v. Texas

Context

The social and political landscape for gays and lesbians in the United States in 2003, when Lawrence was decided, was significantly different from that merely seventeen years earlier, when the Court heard Bowers. Those seventeen years saw significant shifts in the country's treatment of gay men and women as well as important changes in the composition of the Supreme Court.

In 1986, the year Bowers was decided, most gay men and lesbian women maintained their sexual orientation as a closely guarded secret. The public revelation of homosexual orientation was unusual and often harmful to those exposed. Reports that gay men and lesbian women were publicly subjected to vitriol, discrimination, and outright violence were not uncommon, and the law offered little protection. In fact, twenty-four states and the District of Columbia deemed sex between members of the same sex to be criminal activity. Only Wisconsin outlawed discrimination on the basis of sexual orientation. The military prohibited gay men and lesbians from service, and no state offered legal recognition of same-sex unions.

By 2003, lesbians and gay men had become a visible presence in American society unlike at any other time in history. Politicians, teachers, judges, athletes, and movie stars had made public their attractions to people of the same sex. Gay and lesbian couples lived openly in many communities, raising children and serving in civic organizations. Universities and high schools saw the formation of gay student unions, in which young people made their sexual orientations a matter of public record. Gay characters appeared as protagonists on television and in movies. Gay rights activists organized large, public, and effective advocacy campaigns.

Some of these changes were, somewhat paradoxically, a result of the AIDS crisis of the 1980s. Bowers v. Hardwick made its way through the courts at the height of the HIV/AIDS epidemic in the United States, an epidemic that decimated the gay community physically and socially. In the 1980s, HIV infection—originally dubbed the “gay cancer”—was widely believed to be transmitted primarily, if not exclusively, by sex between men. Infection with the virus was essentially a death sentence. As a result, HIV stigmatized gay men as potential predators and sex between men as a threat to health and safety. By 2003 medical advances in the treatment of HIV/AIDS had transformed HIV infection from a veritable death sentence into a treatable condition. Educational efforts had successfully informed the public that the virus infected across genders, ages, and sexual orientations, lessening the stigma of the disease. More important, the political activism generated in response to the AIDS epidemic brought gay rights, and the people seeking them, into mainstream U.S. culture.

Laws reflected the social evolution. By 2003, Vermont had recognized legal civil unions between same-sex couples, and California and New York City had adopted domestic partnership laws. A historic case that would ultimately give gay couples the right to marry in Massachusetts was winding its way through the state courts. Many states allowed same-sex couples to adopt children, and half of the states with sodomy statutes on the books in 1986 had decriminalized homosexual behavior. Municipalities and states throughout the country were making it illegal to discriminate on the basis of sexual orientation in housing, education, and employment. The military, in turn, permitted gay men and lesbians to serve. To be sure, many antigay laws remained on the books, including the one at issue in Lawrence v. Texas, but the changes in the political climate and the social status of gay men and women were undeniable.

In addition to the shifts in the social and legal standing of homosexuality, the composition of the Supreme Court changed dramatically in the seventeen years between the decisions in Lawrence and Bowers. Of the five justices who joined or concurred with the Bowers majority opinion (Byron White, Warren Burger, Lewis F. Powell, William Rehnquist, and Sandra Day O'Connor) and the four dissenters (Harry Blackmun, William J. Brennan, Thurgood Marshall, and John Paul Stevens), only O'Connor, Rehnquist, and Stevens were on the bench when the Court heard Lawrence. In the years between the decisions in Bowers and Lawrence, O'Connor, who would concur with the majority in Lawrence, and Kennedy, who would be the author of Lawrence, cast pivotal votes reaffirming the existence of a constitutional right to privacy, which was in doubt at the time Bowers was decided. The other justices who joined the majority in Lawrence—David Souter, Ruth Bader Ginsberg, and Steven Breyer—were all new to the Court.