Lawrence v. Texas

Explanation and Analysis of the Document

Majority Opinion

Concurrence

Dissents

Justice Anthony Kennedy's majority opinion, which was joined by Justices Stevens, Souter, Ginsburg, and Breyer, starts with a philosophical description of the concepts of liberty and freedom. Without reference to law, Kennedy notes that liberty protects people from government intrusions in their homes but also reaches beyond the home, to other spheres where the state does not belong. “Freedom,” he states, “extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

Unlike the introduction, part I is all business. Kennedy first defines the specific issue confronting the court: the validity of a Texas statute criminalizing certain sexual conduct between members of the same sex. He then describes the factual situation that gave rise to the case. The petitioners, he explains, are two men who were arrested for deviate sexual intercourse after being observed by two police officers engaging in consensual anal sex in the bedroom of one man's home. Kennedy lists the three questions the Court would consider: Whether the Texas statute was in violation of equal protection, whether convictions for “adult consensual sexual intimacy in the home” violated Fourteenth Amendment due process protections, and whether the 1986 decision in Bowers v. Hardwick should be overruled.

In framing the issues, Kennedy emphasizes that the petitioners were adults at the time of the offense and that the conduct occurred in private and was consensual. These emphases—repeated throughout the opinion—may limit the extent to which the liberty interest identified in Lawrence applies; that is, it would not necessarily apply to relationships involving minors or to public or nonconsensual acts.

In part II, Kennedy declares that resolving the case requires a rethinking of the analysis applied by the Court in Bowers v. Hardwick. In Bowers, the Court had rejected the claim that the due process clause protected individuals from criminal sodomy statutes as “at best, facetious.” The decision to reevaluate the analytic framework applied in Bowers was a marked departure from typical Supreme Court decision making. In the normal course, justices apply established rules and distinguish new cases from older ones by finding that differences in the facts of the cases require new results or reinterpretations of old rules. The Court rarely engages in a wholesale reevaluation of a prior decision.

In this case, Justice Kennedy begins the reevaluation by tracing the “substantive reach of liberty under the Due Process Clause” in relevant circumstances. He finds most instructive the cases that arose in the context of state attempts to regulate human reproductive activity. Collectively, those cases, Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, Meyer v. Nebraska, Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Carey v. Population Services International, firmly establish a right to privacy that includes the right of married and unmarried individuals to make decisions regarding sexual conduct.

Kennedy writes that although Bowers v. Hardwick was decided under the law enunciated in the reproductive freedom cases, the Court's analysis was skewed because it misapprehended the issue at hand. By casting Bowers as a case turning on whether the “Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” the Court failed “to appreciate the extent of the liberty at stake.” The liberty at stake when laws criminalize private sexual conduct, Kennedy asserts, concerns not only the sexual act but also the private personal relationships to which individuals are entitled as part of the greater liberty protected by the Constitution. The state, says Kennedy, should avoid setting boundaries on relationships “absent injury to a person or abuse of an institution the law protects.”

Having established that the Court that heard Bowers addressed too narrow a question, Kennedy attacks the reasoning used by that Court. He asserts that the historical foundation used in Bowers was not correct. Here, Kennedy recharacterizes common history as not definitively opposed to “homosexual” or same-sex conduct until the last third of the twentieth century. He notes that sodomy is seldom prosecuted even in the remaining states that make it a criminal act and that most states have moved to abolish the criminal prohibitions altogether. Kennedy acknowledges the condemnation of same-sex conduct by “powerful voices” but dismisses that condemnation, quoting Planned Parenthood of Southeastern Pa. v. Casey: “The issue is whether the majority may use the power of the State to enforce [its] 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.'”

Kennedy directly challenges the conclusion drawn in Bowers that sodomy has been condemned throughout the history of Western civilization. He cites the nonenforcement of sodomy laws and the reduction in the number of sodomy laws from twenty-five to thirteen in the years following Bowers. Then, in one of the more controversial parts of the decision, he turns to evidence of shifting mores from other countries and from international law. For example, he notes that the European Court of Human Rights held that laws proscribing consensual homosexual conduct were invalid under the European Convention on Human Rights, thus showing that foreign court holdings are at odds with the “the premise in Bowers that the claim put forward was insubstantial in our Western civilization.”

Kennedy goes on to show that two cases decided after Bowers cast its holding into even further doubt. He cites Planned Parenthood of Southeastern Pa. v. Casey, a case challenging certain Pennsylvania abortion laws, which confirmed that the constitutional protections of the autonomy of a person to make personal choices considered “central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” That case, he reasons, requires the Court to recognize for the first time constitutional rights for gays and lesbians: “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” This pronouncement of substantive due process rights is presented in language traditionally used in equal protection cases. Kennedy further supports the Court's reassessment with the second relevant post-Bowers case, Romer v. Evans. In that case the Court cited the equal protection clause in striking down legislation disallowing the protection of gays from discrimination. Kennedy writes that the holding of Romer that laws “born of animosity toward [a] class of persons” fulfilled no legitimate government interest applies equally in the due process analysis: “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked.”

Kennedy next rejects the notion that Bowers remains viable. Bowers, he states, does not reflect “values we share with a wider civilization.” He notes that the values established by that case have been rejected around the world, including by the European Court of Human Rights, and that the right at issue in this case has been accepted as an “integral part of human freedom in many other countries.” As a last justification of the Court's reassessment of the holdings of Bowers, Kennedy explains that the present Court need not apply the doctrine of stare decisis (a policy of following principles set forth in previous judicial decisions) because no one has relied on Bowers to protect his or her individual rights in taking a given action. Accordingly, no individual will be disadvantaged if it is overruled.

With the Court free, then, to decide the issue anew, Justice Kennedy offers what is an almost shockingly thin analysis. Most significantly, he does not complete the threshold step taken in other due process cases, which is to identify the degree of scrutiny applicable to the law at issue. That step normally frames the rest of the analysis by dictating how essential the government's purpose must be to justify the law. Instead, Kennedy makes reference to Justice Stevens's dissent from Bowers, which recognizes a liberty interest in intimate conduct and rejects the notion that a state's view of a practice as immoral is sufficient to uphold the practice, without fitting the conclusion into a traditional analytic framework.

Thus, Kennedy declares, “Bowers was not correct when it was decided, and it is not correct today. … Bowers v. Hardwick should be and now is overruled.” He concludes that the “petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Beyond its specific holding, the meaning and reach of Lawrence is unclear. While the Court adopted a fundamental invalidation through substantive due process, an open question remains as to the standard used by the Court to invalidate the statute: strict scrutiny appropriate for fundamental constitutional rights under due process or rational-basis scrutiny requiring only a legitimate state interest. An interpretation in favor of strict scrutiny is supported by the number of times the Court uses substantive due process in its argument—and rejects “mere” equal protection—and by the way liberty is discussed in the context of the due process clause throughout.

An interpretation favoring rational-basis scrutiny is supported by the failure of the Court to explicitly state the standard in question or use the words fundamental right with respect to the liberty interest identified in Lawrence. In addition, Kennedy states that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” This statement indicates that the Texas statute does not even further a legitimate state interest, much less the compelling interest required under substantive due process.

A third interpretation of the decision holds that Kennedy applied some form of intermediate scrutiny, by which the government is required to show more than a rational basis but not so much as a compelling state interest to justify laws regulating private sexual conduct.

The uncertainty in the analysis presented by Kennedy cannot be viewed as anything but deliberate. In fact, the dissent takes the majority to task for having “laid waste the foundations of our rational-basis jurisprudence” by refusing to classify the importance of the right at issue. Justice Kennedy had the opportunity to perhaps respond to the criticism, modify his opinion, or clarify the analytic structure; his decision to leave the threshold questions to another day undermines the usefulness and clarity of an otherwise momentous decision. Of greatest import in the decision, then, is the majority's rejection of morality as a legitimate basis for law, a concept echoed by Justice O'Connor in her concurrence.

Justice Sandra Day O'Connor wrote separately to concur with the Court's judgment. She does not join the majority to explicitly overrule Bowers but finds the Texas statute unconstitutional as a matter of equal protection, in that it applies to sodomy between members of the same sex but not the opposite sex.

Most critically, O'Connor expressly identifies and applies “a more searching form of rational basis review” than the Court has applied in relevant cases involving economic or tax legislation. Reviewing a series of cases, she correctly observes, “When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”

In scrutinizing the Texas statute and the rationale proffered in its defense by the state of Texas, she finds no basis for the statute other than moral disapproval of sodomy. Echoing the sentiments of the majority in its due process analysis, O'Connor rejects moral disapproval alone as a legitimate basis for a law that discriminates among groups of persons. The Texas law discriminates, she says, because it “serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior.” A law “branding one class of persons as criminals solely based on the State's moral disapproval of that class and conduct associated with that class” cannot stand.

O'Connor goes out of her way to limit the scope of her opinion. She notes, for example, that preserving the traditional institution of marriage is a legitimate state interest. Nevertheless, she admonishes that “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

As joined by Justices Rehnquist and Clarence Thomas, Justice Antonin Scalia takes issue with every part of the majority's analysis in a caustic dissent. His introduction accuses the majority of hypocrisy for its willingness to overrule this particular seventeen-year-old precedent when it had refused to reconsider Roe v. Wade just the previous year. Scalia then mocks the majority for lacking the courage to identify the liberty interest at stake as fundamental, which, Scalia suggests, might have been wrong but would have at least justified the result reached. He also warns that the majority used an “unheard-of form of rational-basis review,” an approach that would have far-reaching implications.

In part I of the dissent, Scalia rants against “the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick.” Of note in this section is the degree to which Scalia renews old battles. Specifically, he engages in a step-by-step analysis of the legitimacy of the Roe v. Wade abortion decision using the analytic framework employed by Justice Kennedy in the majority opinion. Accusing the majority of manipulating the analytic framework employed in Planned Parenthood of Southeastern Pa. v. Casey, Scalia argues that Roe should be overruled. The majority's hypocrisy, he says, has “exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.”

Part I also sets forth one of the two main threads of argument winding their way through the lengthy dissent: The majority's holding that moral reproach is not a rational basis for regulation will wreak havoc with the law. In Scalia's view, “a governing majority's belief that certain sexual behavior is ‘immoral and unacceptable' constitutes a rational basis for regulation.” The majority's decision, he claims, calls into question laws against bigamy, same-sex marriage, incest, prostitution, adultery, bestiality, and obscenity.

Part II develops the second main theme of the dissent: The majority's failure to expressly overrule the part of Bowers rejecting a claim to a fundamental right in the case of same-sex sodomy renders the rest of the majority opinion's conclusions untenable. Here, Scalia sets forth a primer on substantive due process analysis. While the due process clause “prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest,” something is a “fundamental right” only if it is, as stated in the 1997 case Washington v. Glucksberg, “deeply rooted in this Nation's history and tradition.” All other liberty interests must merely be rationally related to a legitimate state interest. Scalia declares that the due process clause is not implicated in this case because, as the Court found in Bowers, with the majority here seeming to agree, homosexual sodomy is not a fundamental right. That the majority “does not have the boldness to reverse” the conclusion reached in Bowers on the fundamental right point, then, means that the only logical conclusion is that the Texas law does not infringe on a constitutionally protected liberty interest. Meanwhile, a rational basis exists here, just as it does with respect to laws criminalizing prostitution or the recreational use of heroin.

In part III, Scalia addresses “some aspersions that the Court casts upon Bowers conclusion that homosexual sodomy is not a fundamental right.” In particular, Scalia quarrels with the historical analysis conducted by the majority. He states that the conclusion in Bowers that “homosexual sodomy is not a fundamental right ‘deeply rooted in this Nation's history and tradition' is utterly unassailable” and that the majority's emphasis on proceedings from only the last fifty years is inappropriate. An “emerging awareness,” he says, citing a term used in the majority opinion, does not create a fundamental right.

Part IV returns to the moral slippery slope argument. Here, Scalia asserts that the majority opinion “effectively decrees the end of all morals legislation,” thus calling into question “criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”

In part V, Scalia responds to Justice O'Connor's concurrence by arguing that the law in question indeed applies equally to all people. The Texas statute, he asserts, merely distinguishes “between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women.” Such treatment, he says, does not violate the equal protection clause because it is the same distinction used to justify same-sex marriage prohibitions and laws against adultery.

Scalia's rhetoric intensifies in his conclusion. He characterizes the majority ruling thus: “Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” The majority, he says, has departed from its role as neutral observer and imposed its own view of morality on the entire nation, even though “many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home.”

Justice Clarence Thomas wrote an additional dissent to state that the Constitution does not actually provide a right to privacy, and therefore the Texas law, while “uncommonly silly”—a quote from the dissent of Potter Stewart from the 1965 case Griswold v. Connecticut—should stand.