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The Consequences of Lawrence v. Texas
Justice Scalia Is Right that Same Sex Marriage Bans Are At Risk, But Wrong That A Host of Other Laws Are Vulnerable

Tuesday, Jul. 08, 2003

Recently, and famously, in Lawrence v. Texas, the Supreme Court invalidated Texas' anti-homosexual-sodomy law. It did so by invoking the constitutional right to privacy. But it also indicated that constitutional equal protection doctrines would have provided another reason to invalidate the statute, which targeted only same-sex sodomy.

The decision extended long-overdue recognition of the rights of gays and lesbians. In doing so, it also overturned a notoriously hateful precedent, Bowers v. Hardwick.

Is he right? The answer is surprisingly unclear from the Lawrence opinion. Accordingly, the status of these other laws will remain fodder for lower court challenges.

The Right of Privacy: The Pre-Lawrence Decisions

Prior to Lawrence, the Supreme Court had developed a well-known and sometimes controversial line of cases recognizing a right of privacy surrounding decisionmaking about marriage, family, and procreation.

As it evolved, this constitutional right of privacy became tethered to the Due Process Clause of the Fourteenth Amendment - and specifically, to the liberty interest it protects. The thrust of the right is that individuals have the right to make certain decisions, and engage in certain forms of conduct, without interference from the state.

Claims that the constitutional right of privacy has been infringed are traditionally analyzed in two steps. First, the Court asks whether the decision or conduct is a fundamental right.

In deciding this issue, the Court applies some rather nebulous standards. Is the right "implicit in the concept of ordered liberty"? Is it "deeply rooted in this Nation's history and tradition"? It is helpful if an asserted right is similar to rights that have already been declared fundamental in the past.

Pursuant to Court precedents, fundamental rights include the rights to marry, to use contraceptives, to make decisions about the rearing and education of children, to live with individuals of one's choice, and the right to terminate a pregnancy. (The right, famously established by Roe v. Wade, was reaffirmed, albeit under a slightly different analytic framework, in 1992 in Planned Parenthood v. Casey.)

If the right at issue is indeed fundamental, then the Court applies strict scrutiny to the law. Most laws fail this analysis. For the law to survive, the state must prove both that it had a compelling interest at stake, and that the law at issue was narrowly tailored to achieve that interest.

On the other hand, if the right at issue is not fundamental, the Court simply applies rational basis review. If the state had a legitimate interest in regulating the conduct, and the law at issue was a rational means of achieving that interest, then the law stands.

In 1986, against this backdrop, the Court decided Bowers v. Hardwick. In that case, a man was charged with engaging in sexual conduct, in his bedroom, with another male, in violation of a Georgia statute prohibiting sodomy (regardless of the gender of the individuals participating).

Although not ultimately prosecuted under the law, he challenged the validity of the statute in federal court. The Supreme Court first confronted the issue of whether the right he asserted was fundamental. The majority formulated the question this way: "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy. . . ." But of course, it might have also been phrased in other ways - as a fundamental right to consensual sexual conduct between adults in a private context.

The Court refused to recognize sodomy as a fundamental right, based on its review of history. Indeed, it deemed the claim that there was such a right "at best, facetious."

Finding no fundamental right, the Court applied only the rational basis standard of review. In doing so, the Court found the law valid as an expression of the state's "sentiments about the morality of homosexuality." In other words, the state's belief that homosexual conduct was immoral was a sufficiently "rational" basis to support the law.

The Majority Opinion in Lawrence v. Texas: Strong But Strange

That brings us to the recent Lawrence opinion - in which Bowers was explicitly overruled.

In this case, two men were arrested after the police - dispatched on a report of a weapons disturbance - encountered them in their apartment engaged in a sexual act. They were convicted under a Texas law criminalizing "deviate sexual intercourse with another individual of the same sex."

By a 6-3 majority, the Court, in a majority opinion authored by Justice Anthony Kennedy, invalidated the law - and all anti-sodomy laws, even those that apply to both same-sex and opposite-sex couples. That much is clear. Much else is not.

Oddly, the Court never expressly labeled the conduct at issue a "fundamental" right. It did, however, say that the Texas law sought to "control a personal relationship that . . . is within the liberty of persons to choose without being punished."

All of these statements sound like those used to describe a fundamental right. Thus, one would expect that strict scrutiny would follow. Did it?

All the Court said with respect to the standard of review was that the "Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (Emphasis added.)

That sounds like rational basis review, not strict scrutiny. So what's going on?

It apparently was plain to the Court that the statute would not even survive the lax rational basis standard - let alone strict scrutiny. So the same Court that had avoided the easier equal protection argument to invoke the right of privacy instead, also eschewed the easier application of the more lethal strict scrutiny test, to reach for the rational basis test instead.

(Romer v. Evans, a Supreme Court case striking down an anti-gay civil rights statute stands for the proposition that legislation cannot survive even rational basis review if "it is born of animosity toward the class of persons affected." This would virtually have guaranteed invalidation of the Texas law on equal protection grounds).

In invalidating the Texas law even under the rational basis law, the Court sent this message: "This law is so deeply flawed and reprehensible, we can strike it down with one hand tied behind our backs."

Of course, one could also take an almost diametrically opposite view of the opinion - seeing it as intentionally narrow, not intentionally far-reaching. On this view, the six majority Justices - perhaps because they disagreed among themselves on these points - intentionally withheld two important rulings.

First, they declined explicitly to hold that private sexual conduct, including sodomy, is a fundamental right. Second, they declined explicitly to hold that strict scrutiny applies when this right is infringed. Therefore, on this view, these holdings are not law.

But no one who has read the majority opinion as a whole can plausibly endorse this latter interpretation of the Court's opinion. It is too strong an embrace of rights, and a proclamation of freedom for gays and lesbians, for that interpretation to be sustainable. All five majority justices signed onto the opinion's unequivocal language (Justice O'Connor concurred in the judgment, but would have invalidated the law under the equal protection principles).

But how far does this embrace extend?

The key to developing the privacy line of cases in the past has been analogy--how much does a newly asserted right look like those the Court has already recognized? That will undoubtedly hold true with Lawrence as courts are asked to reconsider the validity of other laws regulating similar conduct.

When laws that regulate analogous conduct are examined, morality justifications alone plainly will not be enough to save them. In Lawrence, the Court explicitly adopted the following language from Justice Stevens's Bowers dissent: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

But which kinds of conduct, exactly, will be deemed similar to the conduct at issue in Lawrence? At one point, Lawrence refers to an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Later, however, the opinion also makes plain that not all statutes regulating sex will be vulnerable to constitutional attack.

Indeed, the Court tries to hem in its holding by listing the factors not implicated by the Texas anti-sodomy law: minors, coercion, public conduct, prostitution, and public or governmental recognition of the relationship. It also points out what is involved here: two adults, mutual consent, and sexual acts common to their lifestyle.

This analysis spells doom for the few remaining anti-fornication laws on the books. Like homosexual sodomy, fornication is a private, consensual, sexual act, and the laws forbidding it have no conceivable justification other than morality. But what about the other laws Justice Scalia lists in his dissent as now being vulnerable?

Laws That May or May Not Be Vulnerable Under Lawrence

Justice Scalia predicts that, besides anti-fornication laws, laws regulating or prohibiting same-sex marriage, prostitution, adultery, bigamy, incest, and bestiality will also come under fire, and be invalidated, after Lawrence. Will they really?

Laws against prostitution and bestiality are the easiest cases. After Lawrence, anti-prostitution laws can still be justified based on concerns about coercion, exploitation of women, and the public health. And bestiality laws plainly can be upheld on a "cruelty to animals" justification, or, in the age of SARS, maybe a public health one. A legislature entirely unconcerned about the morality of either practice could still seek to prohibit both.

But some applications of incest laws may reach too far - beyond either of these concerns - and be struck down. A law that prohibited cousins from marrying might be one example. So might a law prohibiting an adopted sibling from marrying a close-in-age "natural" sibling who shared no genes. Or one that prohibited the marriage of blood relatives who did not know each other as minors.

Adultery and bigamy laws are somewhat harder. They can probably be justified by a state's desire to preserve a monogamous tradition, protect spouses from harm visited by the other spouse (a longstanding feature of state criminal, marriage, and divorce law), maintain an orderly system for assigning the benefits and burdens associated with marriage, and so on.

On the other hand, though, it seems hard to deny that morality concerns are the main motivating force behind such laws: Adultery and bigamy are prohibited not so much for their consequences, but because society sees them as morally wrong.

But unlike private sexual conduct, like sodomy, neither adultery nor bigamy has ever been protected by our society--to the contrary both have always been illegal, and a basis for marital dissolution. And unlike the history of sodomy laws detailed in Lawrence, there is a long history of these laws being enforced.

So to the extent that the due process inquiry is based in tradition, the rights to commit adultery or bigamy look very unlike the right at issue in Lawrence (and thus would not generate heightened scrutiny at all).

Laws Banning Same-Sex Marriage Are Indeed Vulnerable After Lawrence

What about laws banning same-sex marriage?

The Court in Lawrence seemed to limit its holding so as not to decide this question, noting that it was not considering the issue of public or governmental recognition of a relationship. But, importantly, its reasoning may well extend to invalidate such laws anyway.

In Lawrence, the Court dispensed with tradition as the sole determinant of a privacy right, emphasizing the role of autonomy and personhood in assessing what rights are too important to be toyed with. Same-sex marriage has not traditionally been seen as a right, but neither has same-sex sodomy - or sodomy in general - and Lawrence found a right to these latter practices.

Indeed, one would think that, putting tradition aside, the right to marry the person of your choice should be one of the most fundamental of all. If it isn't, the Court will be hard put to say why.

Once a right to same-sex marriage is recognized, any law banning it - or regulating it differently from the way opposite-sex marriage is regulated - will predictably be struck down. Such laws have no valid justification; they are based either on pure animus against homosexual persons, or on so-called "morality" considerations that Lawrence and Romer have made clear cannot alone support a liberty- or equality-infringing law.

In sum, Lawrence is itself a monumental development in Constitutional law, but the future may be even more interesting. After Lawrence, challenges to laws banning same-sex marriage are the logical next step.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Family Law and Sex Discrimination, among other subjects. Grossman's other articles on these and similar subjects may be found in the archive of her pieces on this site.

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