June 26, 2003 – U.S. Supreme Court Decides Lawrence v. Texas

On June 26, 2003, in a 6-3 opinion delivered by Justice Anthony M. Kennedy, the US Supreme Court in Lawrence v. Texas (539 U.S. 558) struck down state laws criminalizing private homosexual activity, finding that such laws violate the Due Process Clause (Section 1) of the Fourteenth Amendment. The ruling overturned the Court’s previous decision in the 1986 case Bowers v. Hardwick (478 U.S. 186).

Justice Anthony Kennedy

Justice Kennedy, who delivered the opinion for the Court, observed that:

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 said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.

In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here.

Bowers was not correct when it was decided, is not correct today, and is hereby overruled.”

As The New Yorker pointed out in an article summarizing the decision and its implications:

The story told in Lawrence v. Texas was a story of sexual privacy, personal dignity, intimate relationships, and shifting notions of family in America. By the time the tale poured from Justice Anthony Kennedy’s pen, in his decisive majority opinion, it was even about the physical dimension of love: ‘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 opinion used the word “relationship” eleven times.”

Justice Antonin Scalia’s scathing dissent — joined by Justice Clarence Thomas and Chief Justice William H. Rehnquist — accused the majority of taking “sides in the culture war” and claimed it “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.”

Justice Antonin Scalia

Scalia opined:

. . . [the decision] effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws [“fornication, bigamy, adultery, adult incest, bestiality, and obscenity”] can survive rational-basis review.”

Scalia added the inevitable caveat appended to any declaration of prejudice: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”

Nevertheless, there was much to keep Scalia awake at night, one presumes, since he warned:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen 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,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.”

Presumably Justice Scalia took issue with the ideals stated in the Declaration of Independence, that all people have certain inalienable rights, including, foremost, the liberty to pursue their own happiness, and that the only legitimate purpose of government is to secure those rights. At least, per Scalia, if those rights are “morally” acceptable….