THE SUPREME COURT
THE SUPREME COURT; Excerpts From Supreme Court's Decision Striking Down Sodomy Law
Published: June 27, 2003
Following are excerpts from the Supreme Court's ruling yesterday overruling a Texas sodomy law. The vote in Lawrence v. Texas was 6 to 3. Justice Anthony Kennedy wrote the majority opinion and Justice Sandra Day O'Connor wrote a concurrence. Dissents were filed by Justice Antonin Scalia and Justice Clarence Thomas. The full decision is online at nytimes.com/washington
FROM THE DECISION
By Justice Kennedy
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace.
The complaints described their crime as deviate sexual intercourse, namely anal sex, with a member of the same sex (man). . . The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25.
The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.
We granted certiorari to consider three questions:
1. Whether petitioners' criminal convictions under the Texas Homosexual Conduct law which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples violate the Fourteenth Amendment guarantee of equal protection of laws?
2. Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?
3. Whether Bowers v. Hardwick should be overruled?
The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers.
There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, and Meyer v. Nebraska, but the most pertinent beginning point is our decision in Griswold v. Connecticut.
In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom.
After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights. . .
The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade. As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other states were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person. . . .