Lawrence v. Texas: Equal
Justice Under Law
By Philip Chandler
On June 26, 2003, the legal status of
gay and lesbian Americans changed forever.
Whether cultural conservatives and Christian fundamentalists like it or
not, the change was as much the result of a broader social movement as it was
the driving force behind that social movement.
This essay examines the legal changes that were made when Associate
Justice Anthony Kennedy delivered the majority opinion in a much-debated,
watershed case involving the rights of all Americans, both gay
and straight. The case, known as Lawrence
v. Texas, 539 U.S. ___ (2003), involved
the rights of two gay men who have retreated from the public after an ordeal
that lasted literally for years.
Shortly after the US
Supreme Court struck down Colorado's “Amendment 2” in 1996 (in the case of Romer v. Evans, 517 U.S. 620), I predicted
that sodomy statutes would also be struck down using rational basis as the
standard of review. This is precisely what happened in Lawrence. The Court has left open for another day the question of
whether or not gay men and lesbians constitute a "suspect class"
(which would require that the Courts grant strict scrutiny to any
legislation that classifies people on the basis of sexual orientation or
perceived sexual orientation).
Lawrence involved two men who
were arrested when the police conducted a no-knock search of their premises in
response to a false report about a "crazy man with a gun" filed by a
neighbor who had a grudge against the men (the neighbor has since served 30
days for filing a false report with the police). The police barged into
the men's bedroom and caught them having sex. Although the Texas "Homosexual
Conduct" statute (codified at Sec. 21.06 of the Texas Code) had never been
applied before in the history of the law's enactment and existence, these
officers took it upon themselves to arrest the men concerned and to charge them
under this statute. A statewide search
of arrest records in Texas has shown,
definitively, that sec. 21.06 was never
used prior to this occasion, suggesting to the writer that these police
officers must have been a really homophobic bunch to start out with. It
is important to note that sec. 21.06 applied to same-sex conduct only; had the
couple consisted of a man and a woman, no crime would have been
committed. However, since sec. 21.06 applied to couples of the same sex
only, the men were dragged off to jail wearing only their underwear (can
anybody imagine how humiliating and frightening that must have been for them?),
and pled no lo contendre
before a Justice of the Peace the next morning. They were both fined
$200.00 and released. The crime of which they were accused and convicted was
a Class C misdemeanor; the lowest level of misdemeanor in the Texas hierarchy
of legal offenses; but would still have been sufficient, had justice not
prevailed, to bar these men from receiving or keeping state-issued licenses
permitting them to practice in several professions (including those of physician,
therapist, and teacher) for which a state-issued license is a
requirement. In addition, the men would have been required to register as
“sex offenders” in the State of Texas and in at least four
other states, were they ever to fall under the legal jurisdiction of those
states. Therefore, in addition to having the stigma of a criminal
conviction upon their records, both men would also have been forced to carry
the stigma of being labeled “sex offenders”, and both men would have had to
register with the local police as “sex offenders.”
After the men were
convicted before a Justice of the Peace, they demanded a real trial before a
criminal court judge within the Texas state court
system. During the course of their trial, they submitted motions to the
judge requesting that the judge find Sec. 21.06 of the Texas Code
unconstitutional, citing several cases within the Texas court system which had
already made this finding, but in non-criminal contexts or in other
jurisdictions (one case involved a woman who wished to become a Dallas police
officer and who was refused employment because she was considered to be an
"unconvicted criminal;" her case made it to
an intermediate state appellate court in another district of Texas, which found
sec. 21.06 to be unconstitutional under the Texas state constitution).
However, the judge declined to find sec. 21.06 unconstitutional, and upheld the
convictions, also adding court costs to the fines. The men then went to a
middle-tier state appeals court (the Court of Appeals to the Fourteenth
District), where they presented their arguments before a three-judge panel
of that court. At this point, the men won a transient victory. The
three-judge panel found that sec. 21.06 was unconstitutional under the Texas
Equal Rights Amendment (ERA) (a state constitutional amendment that was almost,
if not entirely, identical to the failed federal ERA of the 1970s). The
three-judge panel found that 21.06 was
unconstitutional under the Texas state constitution
because it discriminated on the basis of
sex. The court's reasoning was as follows: if person A
has oral or anal sex with person B, and person B is of the opposite sex from person A, then sec.
21.06 is not implicated and no crime has been committed. If person A has
oral or anal sex with person B, and person B is
of the same sex as
person A, then sec 21.06 has been broken and a crime has been committed.
Thus, whether or not person A is guilty of committing a crime turns solely
on the sex of person B. Therefore, the Texas ERA was violated by
sec. 21.06. This was argued successfully before the three-judge panel,
and the men's convictions and sentences were set aside.
However, the full
Court of Appeals to the Fourteenth District voted to rehear the case en banc, and the men were retried
before a court consisting of a much larger panel of judges. The full
Court of Appeals to the Fourteenth District set aside the ruling of the
three-judge panel and reinstated the men's convictions and sentences,
dismissing the men's state ERA claims and holding that the US Supreme Court's
decision in the Bowers was
controlling. It is important to note that, in placing its reliance upon Bowers, this Court introduced federal
constitutional issues into the case for the first time, thereby rendering any
final decision within the Texas state court system
subject to review by the US Supreme Court.
Unfortunately, the Court of Appeals to the Fourteenth District is an
influential Court of Appeals within the Texas state appellate court
system, and other Courts of Appeals for other districts frequently look to the
Court of Appeals to the Fourteenth District for guidance, particularly with
respect to issues of first impression.
The men did not give
up at this point. They filed a petition for certiorari before the Texas
Court of Criminal Appeals, which is the Texas equivalent of a state Supreme
Court dealing only with criminal matters (the Texas Supreme Court is the Texas
equivalent of a state Supreme Court dealing only with civil matters). The
State of Texas has a bifurcated high court system, and although the Texas
Supreme Court had heard a case involving sec. 21.06 and had pronounced sec.
21.06 to be unconstitutional, it also determined that the case in question had
been filed in the wrong Court, rendering the pronouncement moot; thus, any
comment on the constitutionality of sec. 21.06 by the Texas Supreme Court was
deemed moot, since that case should have gone to the Court of Criminal Appeals.
In a move that reeked
of cowardice, the Court of Criminal Appeals denied the petition for certiorari
(it may have been pointed out to the Justices, or it may have
occurred to the Justices that, were they to hear the case and apply the Texas
constitution correctly, they would have had to reverse the men's
convictions; but since Justices of both the Texas Court of Criminal Appeals and
the Texas Supreme Court have to run for public office, they decided to take a
pass and refused to hear the case).
The men then appealed
their case to the US Supreme Court, thinking that it was just possible that
this Court would vote to rehear their case, despite the Bowers v. Hardwick ruling of just 17
years previously.
Everybody was very
surprised when the US Supreme Court decided to hear the case. The US
Supreme Court demanded that it be briefed on three specific issues:
1) Whether the
convictions under sec. 21.06 should be held unconstitutional because this
statute violated the Equal Protection Clause of the Fourteenth Amendment
to the US Constitution (given that the sexual conduct prohibited by sec. 21.06
applied only to same-sex couples)?
2) Whether the men's
convictions under sec. 21.06 should be held unconstitutional because this
statute, which outlawed consensual sexual activity between adults occurring in
the privacy of a person's bedroom, infringed upon their vital interests in
liberty and privacy protected by the Due Process Clause of the Fourteenth
Amendment to the US Constitution?
3) Whether Bowers v. Hardwick should be
overruled?
The fact that the US
Supreme Court asked for briefs as to whether or not Bowers should be overruled had
both the gay community and conservatives in an uproar, simply because the
US Supreme Court almost never
directly overrules an earlier decision, instead usually preferring to open up
new lines of constitutional analysis and neglecting cases with which it no
longer agrees. Furthermore, the Court demanded that the State of Texas actually brief the
Court as to why these convictions should be sustained; usually, the Court
simply allows the state concerned to rest on the record.
Amicus briefs were
filed and accepted from both sides of the question. The amicus briefs
filed by conservatives dripped with unconcealed hatred of gay men, making
accusations that gay people "recruit" straights, that gay men molest
little boys with disproportionate frequency, that gay men are filthy and disease-ridden, and other tripe of that nature. It
surprised quite a few people when conservative institutions such as the Cato
Institute came out in favor of the gay men, and when a surprisingly large
number of religious denominations came out in favor of the gay men.
The Court handed down
its decision on June 26, 2003. It used
sweeping, broad, and forceful language. The majority opinion was written
by Associate Justice Anthony Kennedy, and was signed by Associate Justices Souter, Stevens, Breyer, and
Ginsburg (the five votes needed to carry the opinion). Associate Justice
Sandra Day O'Connor wrote a concurring opinion, agreeing with the judgment but
using a different line of constitutional analysis. The dissent
was written by Associate Justice Antonin Scalia, and was signed by both Associate Justice Clarence
Thomas and Chief Justice William Rehnquist. A separate dissent was filed
by Thomas, agreeing with the dissent written by Scalia,
but adding Thomas's personal opinion that the Texas statute was
"silly," but that it should have been left to the legislature to
repeal.
From the outset,
the majority offered an almost apologetic tone, admitting with respect to Bowers..."[this] Court's own
failure to appreciate 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 to be said marriage is simply about
the right to have sexual intercourse."
These statements set the tone for the rest of
the decision. As is well known, the right to privacy does not exist
anywhere in the text of
the Constitution. The most thorough search of the Constitution
and all of its Amendments will not locate any mention of a right to
privacy. However, Article II of the US Constitution grants the Courts the
power to say what the law is (see
Marbury v. Madison, 5 U.S. 137
(1803)). It is settled constitutional law that the Due Process Clauses of
the Fifth and Fourteenth Amendments permit the Courts to interpret the word
"liberty," and it is black-letter law that "liberty" means
more than mere freedom from physical restraint. Therefore, the Courts
have developed the doctrine of substantive due process -- a doctrine which
states that the Courts, through their power to interpret the word
"liberty" (which does
appear explicitly in both Due Process Clauses), have the power to review
the substance of state
action, not merely the manner in which state action is implemented.
Therefore, under the doctrine of substantive due process, the Court can
invalidate the substance
of actions taken by the other two branches of the government. The Court
clearly articulated the constitutional moorings of this doctrine
in Palko v. Connecticut, 302 U.S. 319 (1937),
in which the Court held that the states could not act in manners inconsistent
with "the system of ordered liberty"
under which we live. Put differently, the states cannot deny to
persons within their jurisdictions those rights which are such that "neither liberty nor justice would exist if they were
sacrificed." Therefore, the federal Courts have the
ability to decide whether liberty interests exist in particular spheres of life
and in particular behaviors. The Lawrence Court finally acknowledged
that gay men and lesbians have a liberty interest in seeking sexual intimacy
with members of the same sex. Whereas in 1986, the Bowers Court had framed the issue as
being "whether the Federal Constitution confers a fundamental right
on homosexuals to engage in homosexual sodomy," the Lawrence Court apologized for that
mistake in appreciating the magnitude of the right in question. The Lawrence Court opined that
"adults may choose to enter upon this relationship in the confines of
their homes and their own private lives and still retain their dignity as free
persons. When sexuality finds overt expression in intimate conduct with
another person, the conduct can be but one element in a personal bond that is
more enduring. The liberty protected by the Constitution allows
homosexual persons the right to make this choice."
The Court then turned to its own scholarship
in Bowers. The
Court had tried, in Bowers,
to paint homosexuality as a terrible evil which has always been condemned in
the harshest possible manner, from Roman times, through British medieval times,
through Colonial times here in the USA, and finally, in the early 1970s,
when all of the states had sodomy laws on the books. However, the Lawrence Court acknowledged that
which sociologists have known for decades -- that the
concept of homosexual identity
was not formed until some time late into the 19th century. Prior to that
time, homosexuals did not exist as a recognized class. Homosexual acts
were considered to be depraved acts engaged
in by heterosexuals, and were harshly punished along with all other forms of non-procreative
sexual intercourse. Kennedy's genius, both in Lawrence and in Romer (striking down the
Colorado state constitutional amendment that prohibited the State of Colorado
or any of its political subdivisions from ever again enacting any statute,
policy, or ordinance aimed at protecting gay people from discrimination), lay
in his meticulous examination of the historical roots of sodomy laws (in Lawrence) and anti-discrimination
legislation (in Romer).
Kennedy went on to point out that this country has never experienced any period
during which it was police or public policy to punish same-sex conduct when
this conducts was engaged in behind closed doors ("Laws prohibiting sodomy
do not seem to have been enforced against consenting adults acting in
private.") Surviving records of actual sodomy trials and
convictions, Kennedy pointed out, usually detailed cases in which the
defendant engaged in predatory behavior, or in cases in which consent was
lacking, or in cases in which the prosecutor did not want coverage to be lacking
in the event that an accompanying act (e.g., rape) could not be proven.
Furthermore, Kennedy pointed out, 19th century laws of evidence made it
impossible to convict a person of sodomy based upon the testimony of a willing
partner, because the partner was considered to be an accomplice. Thus,
convictions were almost always related to cases in which sex acts had been
forced upon an unwilling victim.
Kennedy pointed out
that it was not until the 1970s that same-sex sodomy statutes were codified,
and that only nine of the 50 states chose to draft such sodomy
statutes. In all the other states, the statutes were of general
application. Kennedy further pointed out that the number of same-sex only
sodomy statutes had dropped steadily in the 17 years since Bowers was decided. This was
largely due to the trend on the part of gay activists to turn to state
constitutions, which frequently offer their citizens more protections against
government intrusion into their private lives than is granted by the US Constitution.
States in which legal challenges to same-sex only sodomy statutes have been
made successfully by invoking state constitutional guarantees include Kentucky, Montana, Arkansas, and Tennessee. The State of Nevada repealed its same-sex
only sodomy law. Additionally, state constitutional challenges
have been filed against states with sodomy laws of general application, and
many of these challenges have also been successful (litigation in Maryland and
Georgia took down those states' sodomy laws). The general trend has been
to eliminate these laws. In those states that have held out (e.g., Kansas), it has not been
public or police policy to pry open bedroom doors, and gay couples have lived
openly without being prosecuted for consensual sodomy.
Kennedy continued his
opinion by noting that the collateral consequences of sodomy laws are
frequently far more reaching and invasive than the actual laws
themselves. For example, couples in gay relationships are criminals by
definition in those states that have sodomy laws, hampering efforts on the part
of gay people in those states to seek the passage of non-discrimination
laws, ordinances, or policies. Lesbian women have lost custody of their
own children to other family members on the grounds that they are unconvicted criminals. As Scalia
stated in his dissent in Romer, "there can hardly be more palpable
discrimination against a class than making the conduct that defines the class
criminal" (internal citations omitted). In Texas prior to Lawrence, it was slander
per se to call somebody a homosexual, because this characterization necessarily
implied that the person was a criminal.
It is striking that
the majority used rational basis review to overturn Bowers. It is uncontested that rational
basis review almost always results in victory for the state. However, in US Department of Agriculture v. Moreno,
413 U.S. 528 (1973), the Court made it clear that a bare desire to harm a
politically unpopular group could never promote a legitimate state
interest. This principle was
affirmed and clarified in Cleburne
v. Cleburne Living Center, 473 U.S. 432. In 1996,
the Court reaffirmed this principle by stating that Colorado's Amendment 2 was
so broad in its sweep yet so narrow in its application (affecting only gay men
and lesbians) as to give rise to the inevitable inference that it was born of
animus towards the class of persons that it affected (gay men and lesbians),
and the Court once again invalidated the challenged legislation (a state
constitutional amendment) using rational basis review (citing once again
the principle that legislation intended to do harm to a politically
unpopular group can never promote a legitimate state interest). In Lawrence, the Court made this
principle abundantly clear. While acknowledging the fact that there may
be people who have very strong religious or moral beliefs against
homosexuality, the Court made it clear that these beliefs could not form a
rational basis for the enactment or enforcement of laws intended to oppress a
group of citizens who neither injure nor coerce others through their own life
choices. Commenting on gay relationships in closing, the Court noted that
the choice to engage in the sex acts prohibited by sec 21.06 "does not
involve public conduct or prostitution. It does not involve whether the
government must give formal recognition to any relationship that homosexual
persons seek to enter. The case does involve two adults who, with full
and mutual consent from each other, engaged in sexual practices common to a
homosexual lifestyle. 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. Their right to liberty under the
Due Process Clause gives them the full right to engage in their conduct without
intervention of their government.....Had those who drew
and ratified the Due Process Clauses of the Fifth Amendment and the Fourteenth
Amendment known the components of liberty in its manifold possibilities, they
might have been more specific. They did not presume to have this
insight. They knew times can blind us to certain truths and later
generations can see that laws once thought necessary and proper in fact only
serve to oppress. As the Constitution endures, persons in every
generation can invoke its principles in their own search for greater
freedom" [emphasis added]
These laws are now
dead throughout the United States. It now falls to activists within the gay
community to ensure that police harassment of homosexuals ceases, so that Lawrence can finally serve as
the epitaph for the remnants of these laws.
The Supreme Court of the Commonwealth of Kentucky made it clear, when
striking down Kentucky’s same-sex only sodomy law, that the idea embodied in
the words carved in stone above the US Supreme Court building signified more
than a mere aspiration for the people of Kentucky. This was the first state in which gay activists
successfully struck down a state sodomy law by turning to the state
constitution in question. It is now time
for America to move forward on
this issue, instead of reverting to fear of the unknown. The highest court in the land has declared it
to be totally irrational to pin a badge of shame on 10% of the population of
this nation. Let now those four simple
words speak their truth:
Equal Justice Under Law.
ÓCopyright 2003 by
Philip Chandler. All rights reserved, subject to reasonable Fair Use.
Reprinted
with permission.
For Chandler’s recent blog “Gay Equality and the Law”, visit this link.
Contact him at PhilipChandler domain earthlink.net
NOTE: We have learned of a
website that is selling or distributing this essay illegally, possibly for
purposes of academic plagiarism. This essay was intended by the author for free
viewing and research only, not for resale by third parties. Other sites may NOT
reproduce the essay in entirety without permission from the author, given
above. Complete reproduction is not “FAIR USE,” brief quotes with
critical comments are. If this
continues, legal action may be taken. Thank you.
Please visit a site that is
set up to catch academic plagiarism, http://www.turnitin.com/
For my plagiarism policy
visit http://www.doaskdotell.com/cheat.htm