Laws against sexual acts not connected to procreation have a long history. We have texts of medieval English laws outlawing sodomy as early as the 14th century, where a conviction resulted in being burned at the stake. The United States derived many of its laws from English legal tradition, and laws against sodomy are no exception. In 1779, Thomas Jefferson proposed "softening" existing criminal laws against sodomy in his home state of Virginia - by offering a bill proposing that men be castrated instead of executed.
While sodomy was long prohibited in America, with all states criminalizing anal sex from its founding until 1961, enforcement tended to vary according to cultural and political trends. But anti-sodomy laws have been strangely resilient to change.
Several state laws are still on the books that prohibit sexual acts not involved in procreation. A dozen states still have some form of them. These laws cover acts such as sex outside of marriage in addition to sodomy.
Of course, laws against sodomy are no longer enforced, but they have been disproportionately used to target members of the LGBTQ+ community, particularly during the 1950s and 60s. In some cases, state legislatures passed laws specifically targeting gay men for "criminal sodomy" — while leaving sexual conduct between opposite-sex couples alone. And when state law criminalized oral sex or anal sex without regard to sexual orientation, states often selectively enforced those laws against gay men.
Today, courts would dismiss such a case even if a prosecutor did want to charge an LGBTQ+ person with violating "crimes against nature" or some similar antiquated law. That's because the Supreme Court, in 2003, declared such laws unconstitutional in Lawrence v. Texas.
This article discusses the landmark case that finally began protecting LGBTQ+ people from persecution.
Court Decisions Prior to Lawrence
By 2003, the year Lawrence was decided, the movement for LGBTQ+ equality had made significant strides. But there was still a long way to go. The Defense of Marriage Act, a federal law passed in 1996, defined marriage as between a man and woman and allowed states to refuse to recognize same-sex marriages. This was true until the U.S. Supreme Court's decision in Obergefell v. Hodges in 2015 granted same-sex couples the constitutional right to marry.
But at the time Lawrence was decided, Supreme Court precedent on the issue was firmly on the side of allowing bans on gay sex. In 1986, the Supreme Court found in Bowers v. Hardwick that anti-sodomy laws were constitutional, even if targeted only at men who have sex with men. Writing for the 5-4 majority, Justice Byron White held that the right to privacy under the Fourteenth Amendment's due process clause does not extend to gay sex. In White's view, considering the long history of persecution of gay people, "to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."
But it was a narrow decision, and Justice Harry Blackmun wrote a scathing dissent, pointing out that "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
Instead, Blackmun argued, "[t]he Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others."
Facts of the Case in Lawrence v. Texas
By 2003, most of the states that had laws criminalizing LGBTQ+ people had revoked them. But a handful of states did not. Texas was one of those states.
John Geddes Lawrence, a resident of Houston, was in his apartment with another man, Tyron Garner, when police entered the home in response to a report of a weapons disturbance. The neighbor who reported this weapons disturbance was lying, and later pleaded no contest when charged with filing a false police report. While the details and motivation behind the false police report are unclear, the neighbor may have previously been romantically involved with Garner, and the false report made out of jealousy or anger.
Police found no weapons, only two men engaged in consensual sex, but that was enough for police to arrest both Lawrence and Garner. Police arrested the two men, held them in custody overnight, and charged them with violating Texas' law prohibiting "deviate sexual intercourse," a misdemeanor. Texas was one of only four remaining states to specifically criminalize gay sex, although more had statutes outlawing oral and anal sex regardless of sexual orientation. The two men pled no contest to the charges and were fined $200.
The Lawrence v. Texas Decision
The question before the court in Lawrence was whether Texas' law was constitutional and whether the court should uphold its decision in Bowers. In a 6-3 decision, the court reversed Bowers and held that the Constitution does protect intimate sexual acts conducted in private between consenting adults.
Justice Anthony Kennedy wrote the majority opinion. Kennedy began by casting doubt on the premise Bowers was based on, which was that the case was specifically about homosexuality. Instead, the majority held that this case was about freedom from government interference in intensely personal choices regarding family, sex, and home. Laws like the one in Texas "seek to control a personal relationship that . . . is within the liberty of persons to choose without being punished as criminals," Kennedy noted.
The opinion next tackled Bower's reliance on historical laws against homosexuality. For one, the majority notes, most anti-sodomy laws derived from British common law included both heterosexual and homosexual relationships. Historically, Christian faiths generally frowned upon any sexual acts not involved in procreation, and homosexuality wasn't understood as something distinct from any other "deviant" sexual act. Plus, enforcement of these laws was inconsistent, at best. The movement to use such laws to persecute gay people really got started in the mid-20th century. In other words, even the rationale the majority used in Bowers — that "Western Civilization" (as Justice William Rehnquist argued) had long criminalized LGBTQ+ individuals — was uncertain.
Protecting Intimate Sexual Acts Under Substantive Due Process
The court's reasoning in Bowers was similar to that used in a much more recent case - Dobbs v. Jackson Women's Health. The majority's argument in both is that to be protected under substantive due process, the act in question must be "deeply rooted in our nation's history and tradition." In both Bowers and Dobbs, the court held that neither intimate sexual acts nor abortion met this standard.
The Due Process clause of the Fourteenth Amendment states that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Under the Constitutional principle of substantive due process, the due process clause protects not only procedural due process (such as not being able to be convicted of a crime without the right to a jury trial) but also encompasses certain "fundamental" rights. These fundamental rights may be protected even if they are not specifically mentioned elsewhere in the Bill of Rights.
In Lawrence, the majority opinion found that intimate sexual acts in the home are one such right under substantive due process. In addition to casting doubt on the history of prosecuting LGBTQ+ people for who they are, the majority discussed how cases since Bowers strengthened privacy rights. Specifically, Planned Parenthood v. Casey and Romer v. Evans.
In Casey, the court upheld its decision in Roe v. Wade that abortion was protected under the Fourteenth Amendment, writing that "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."
In Romer, a 1996 case, the Supreme Court struck down a Colorado constitutional amendment that would prohibit LGBTQ+ residents from getting any protection from discrimination. Justice Kennedy also wrote the majority opinion for that case and found that the government has no legitimate interest in this sort of blatant discrimination.
Justice Kennedy argued in Lawrence that with these two decisions, the Supreme Court had already seriously weakened the underlying arguments in Bowers. As such, it was time to explicitly overturn Bowers and give all Americans the right to conduct private sexual acts in their home without government interference or the threat of criminal prosecution.
Equal Protection and Justice O'Connor's Concurrence
Substantive due process is not the only theory under which Lawrence v. Texas could have been decided. The Fourteenth Amendment also prohibits states from denying equal protection of laws. This is the Equal Protection clause of the Fourteenth Amendment. Since Texas' statute specifically targeted gay men, theoretically the Supreme Court could have declared Texas' statute an unconstitutional violation of equal protection and left its holding in Bowers alone.
But, Justice Kennedy argued, while that argument was "tenable," it would leave open the door to states still banning private sexual acts, so long as it was equally enforced among heterosexual and homosexual partners. Instead, the majority found that the Constitution prohibited the government from criminalizing private, consensual sex acts regardless of gender, sexual orientation, or any other potentially distinguishing characteristic of the people involved. Put simply, the government does not have the authority to get involved in your bedroom.
Justice Sandra Day O'Connor offered a concurring opinion, siding in the majority's judgment but not its reasoning. That means that while she agreed Texas' law was unconstitutional, she would have decided the case based on equal protection grounds instead of substantive due process. This would have left the Bowers decision alone.
The Dissent in Lawrence
Justice Antonin Scalia, as per usual, used forceful language in his dissenting opinion. He was joined by Chief Justice William Rehnquist and Justice Clarence Thomas.
Scalia begins by criticizing the majority's inconsistent — in his view — application of the doctrine of stare decisis. According to Scalia, if Bowers had been eroded by subsequent cases, so too had Roe and Casey. In the dissent's view, the majority was applying stare decisis selectively to reach the holding it desired.
Turning to the merits of substantive due process, Scalia argues that Bowers was correct in pointing out that sodomy was largely criminalized throughout U.S. history and that infrequent prosecution of the crime was irrelevant. The important thing, in Scalia's mind, was that there was no longstanding history associated with the right to be free from government interference in sexual acts.
Scalia also argues that Texas had a legitimate government interest in prohibiting homosexual conduct. According to Scalia, if the government can't prohibit homosexuality, then Lawrence "effectively decrees the end of all morals legislation."
Finally, in discussing the Equal Protection claim, Justice Scalia turned to a now-familiar argument used most recently by Justice Samuel Alito in his dissent in Bostock v. Clayton County. Scalia argued that although it was targeted specifically at gay men, the law didn't violate equal protection because homosexuality was prevented for both men and women. In other words, homosexuality was not gender-specific, so it did not violate equal protection.
The state of Virginia used this same argument to defend its prohibition against interracial marriage as constitutional in Loving v. Virginia. However, Justice Scalia attempted to distinguish between this case and Loving by arguing that, in Loving, the court used a heightened level of review (called strict scrutiny) but that in Lawrence the majority used less severe level of review (rational basis).
Finally, Justice Scalia closed by noting that "[t]oday's opinion is the product of a Court, which is the product of a law-profession culture, that 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."
The Lasting Impact of Lawrence v. Texas
The Supreme Court's decision in Lawrence v. Texas is notable for several reasons:
- It was a landmark legal victory in the LGBTQ+ civil rights movement.
- It reinforced the "right to privacy" found in substantive due process, helping to reinforce other similar cases such as Griswold v. Connecticut (the right to access birth control), Loving v. Virginia (the right to marry interracially), and Roe v. Wade (the right to abortion).
- It helped to pave the way to marriage equality in Obergefell v. Hodges.
Is Lawrence v. Texas In Danger of Being Overturned?
After the court's decision in Dobbs and the end of the constitutionally-protected right to abortion, there has been speculation that Lawrence v. Texas may also soon be revisited. As noted above, substantive due process cases continue to be controversial, and many conservative legal advocates question whether the Supreme Court of the United States should have ever started down this path.
At least one sitting justice, Clarence Thomas, has flat-out argued that the court should eliminate substantive due process, which would once again allow states to ban same-sex marriage, criminalize homosexual conduct, and outlaw birth control. However, others, such as Justice Samuel Alito, have attempted to distinguish abortion from other substantive due process rights such as intimate sexual acts and same-sex marriage. It's important to note, however, that Alito made the same legal arguments in Dobbs that Scalia did in his Lawrence dissent. Put plainly, the only certainty is that a lot of the legal grounds that Lawrence rested on have been shaken by the current court's revocation of a previously constitutionally protected right.
Read the full decision in Lawrence v. Texas on FindLaw.