Lawrence v. Texas, 539 U.S. 558

Supreme Court of the United States

2003

Chapter

6

Title

Implied Fundamental Rights

Page

902

Topic

Criminalizing homosexual relations violate substantive due process

Quick Notes

On a report of a weapons disturbance, Houston police entered Lawrence's dwelling, where they discovered him having sexual relations with another man.  The two men were arrested, charged, and convicted for violating a Texas statute prohibiting "deviate sexual intercourse with another individual of the same sex."

Rule

o         State laws criminalizing homosexual relations violate substantive due process.

o         The regulation of sexual expression violates the fundamental right of privacy.

Court - May survive equal protection scrutiny, violate due process scrutiny

o         While an appropriately tailored statute prohibiting homosexual relations may survive equal-protection scrutiny, the inevitable violations of individual liberty interests violate due process.

Promotes discrimination

o         The criminalization of homosexual conduct creates a public stigma and promotes discrimination.

Convictions requires mandatory disclosure

o         A conviction in some states falls within the registration laws and mandatory disclosure on future job applications.

Bears on the liberty of consenting adults

o         Because these consequences bear an important relationship to the liberty interests of consenting adults, Bowers is overruled, and state laws criminalizing homosexual contact between consenting adults in private violate the Due Process Clause.

Rational basis review - With Bite

o         Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

o         "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."

o         The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0

Issue

o         Whether a statute prohibiting private sexual intercourse between consenting homosexual adults violates the Due Process Clause?  Yes.

Procedure

Appellant

o         Court of Appeals of Texas, Fourteenth District, upholding Tex. Penal Code Ann. § 21.06(a) (2003). That state law made it a crime for two persons of the same sex to engage in certain intimate sexual conduct

Supreme

o         Reversed

o         The Court held that there was no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there were compelling reasons to do so. The Court further held that there were compelling reasons to overturn Bowers. The central holding of Bowers demeaned the lives of homosexual persons. Petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. Petitioners were entitled to respect for their private lives. The State could not demean their existence or control their destiny by making their private sexual conduct a crime. The Court also noted that the reasoning and holding of Bowers had been rejected in other nations, and there was no showing that the United States' governmental interest was more legitimate or urgent

Facts/Cases

Discussion

Key Phrases

Rules/Laws

Pl -   Lawrence

Df -  Texas

Description

o         On a report of a weapons disturbance, Houston police entered Lawrence's dwelling, where they discovered him having sexual relations with another man.

o         The two men were arrested, charged, and convicted for violating a Texas statute prohibiting "deviate sexual intercourse with another individual of the same sex."

Texas anti-sodomy statute

o         The Df - were charged with violating a Texas statute that made it a crime to "engage in deviant sexual intercourse with another individual of the same sex."

o         "Deviate sexual intercourse" was defined to include (i) any contact between the genitals of one person and the mouth or anus of another, or (ii) the penetration of the genitals or anus of another by an object.

o         The Df - were not only arrested but, held in custody overnight, then tried, convicted, and fined.

Justice Kennedy

Right of Privacy - Includes Marital relationship decisions.

o         The right of privacy includes the right to make decisions regarding the marital relationship.

Right to Marry - Expanded past procreation

o         That right has been expanded beyond marital relations to include the right of unmarried individuals to decide whether to conceive a child.

Liberty Interests - Unwarranted government intrusion into personal decisions

o         At its core, the right of privacy involves the right to be free from unwarranted government intrusion into fundamental personal decisions and liberty interests.

o         Statutes prohibiting a certain type of sexual expression deprive individuals of more than a chosen sexual behavior.

Consenting rights of adults

o         They infringe upon fundamental personal relationships in private homes between consenting adults.

o         The Constitution protects individual choices to express their personal relationship with intimate conduct. 

No ancient roots

o         Laws against homosexual behavior do not have "ancient roots" that make homosexual contact any less of a fundamental right than intimate conduct in general.

Sodomy enforced on society in general, not just homosexuals

o         Historical sodomy laws were not enforced against homosexuals in particular, but against society in general.

Sodomy not enforced against consenting adults in private

o         Further, sodomy laws have not historically been enforced against consenting adults acting in private.

o         Not until relatively recently in our country's history have states sought to specifically prohibit homosexual activity, and the more recent trend is toward abolishing such laws.

Bowers v. Hardwick

o         Although in Bowers v. Hardwick, 478 U.S. 186 (1986), the Court held that state laws prohibiting homosexual relations withstand constitutional scrutiny, the Court should have acknowledged this growing recognition of homosexual rights.

o         In 1955, the Model Penal Code stated that "criminal penalties for consensual sexual relations conducted in private" were not recommended. 

o         Many states followed this guidance in their statutory schemes.

o         Similarly, other nations had abandoned sodomy laws, indicating the growing tolerance of homosexual liberty interests throughout Western civilization.

May survive equal protection scrutiny, violate due process scrutiny

o         While an appropriately tailored statute prohibiting homosexual relations may survive equal-protection scrutiny, the inevitable violations of individual liberty interests violate due process.

Promotes discrimination

o         The criminalization of homosexual conduct creates a public stigma and promotes discrimination.

Convictions requires mandatory disclosure

o         A conviction in some states falls within the registration laws and mandatory disclosure on future job applications.

Bears on the liberty of consenting adults

o         Because these consequences bear an important relationship to the liberty interests of consenting adults, Bowers is overruled, and state laws criminalizing homosexual contact between consenting adults in private violate the Due Process Clause.

Concurring - Justice OConnor

Violates the Equal Protection Clause

o         The statute in Bowers presented a different issue than presented in this case.

o         In Bowers, the statute criminalized sodomy for ALL individuals, while the Texas statute here punishes ONLY homosexual conduct.

o         Because the statute targets one class of individuals over another, it suffices to strike down the Texas statute as violating the Equal Protection Clause. Bowers, however, should not be overruled.

Dissent - Justice Scalia

Stare Decisis - Eroded by subsequent decision

o         Under the majority's approach to stare decisis, an erroneous decision should be overruled if its foundation has been eroded by subsequent decisions, there has been "substantial and continuing" criticism of the decision, and there has been no societal reliance on the decision counseling against overruling it.

Using this logic, lets overrule Roe v. Wade

o         Accepting those factors, the Court should overrule Roe v. Wade, which the Court has vehemently declined to do.

Still Reliance on Bower

o         Even accepting this approach, there has been overwhelming societal reliance on Bowers' direction that moral offenses involving sexual behavior are supported by the Constitution.

We still sustain laws against bigamy

o         Courts have accepted this approach to sustain laws proscribing bigamy, same-sex marriages, adultery, and obscenity, among others.

o         Reliance on the Bowers decision thus supports stare decisis even under the majority's misguided approach.

Undoubtedly deprives individual liberty interests

o         While the Texas statute undoubtedly deprives individual liberty interests, the Due Process Clause does not prohibit denials of liberty, but rather protects such denials absent due process of law.

Compelling interest - deeply rooted in nations history and tradition

o         Under a due process review, only those rights that are "deeply rooted in this Nation's history and tradition" are fundamental and raise compelling state interests.

Court ignores that sodomy has been criminalized in general throughout American

o         Although the Court points to the lack of historical targeting of homosexual sodomy, the Court ignores that sodomy has been criminalized in general throughout American history, and it matters not whether those laws specifically targeted one class of citizens.

Emerging awareness does not establish a fundamental right

o         Because sodomy has long been criminalized, there is no historical right to such conduct that is deeply rooted in American history and tradition.

o         Moreover, an "emerging awareness" of a protected liberty interest to engage in sexual activity by consenting adults in private does not establish a fundamental right.

Other laws support the same moral agenda

o         In concluding that the Texas law is not rationally related to a legitimate state interest, the majority surmises that the state has no legitimate interest in regulating immoral and unacceptable sexual activity. 

o         Yet, laws against bigamy, fornication, adultery, and incest support the same moral agenda, and one cannot imagine successful constitutional challenges to such regulations.

Dissent - Justice Thomas

o         The Constitution contains no general right of privacy that compels the Court to strike down the Texas statute.

o         Nonetheless, the law at issue should be legislatively repealed because it "does not appear to be a worthy way to expend valuable law enforcement resources."

Rules

Class Notes