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


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