Much to the surprise of legal commentators and many in the lesbian and gay community, the Supreme Court has issued a landmark gay-positive decision in Lawrence v. Texas. The decision is significant beyond its narrow ruling applying specifically to laws that criminalize same-sex adult behavior in private. The court’s rationale would seem also to disdain laws that allow discrimination in employment, parenting, and marriage.
Lawrence presented a fact pattern that was closely analogous to the court’s infamous Bowers v. Hardwick decision, which upheld a Georgia law criminalizing homosexual acts. On the evening of September 17, 1998, Harris County, Texas, sheriff’s officers entered the home of John Lawrence. Much like what had occurred in Bowers 16 years earlier, the officers found Lawrence and Tyron Garner engaged in sodomy in Lawrence’s bedroom, except now it was anal sex, not oral sex; the state was Texas, not Georgia; and the social position of gays in society had become more acceptable. Nevertheless, the two men were arrested, charged with violating the state’s Homosexual Conduct Law, and jailed overnight. Although the time served and the subsequent fine were comparatively small, the implications of having such a law on the books were substantial. Not only did the law make people who engage in private gay sex criminals, it rendered people thought to engage in such activities unsuitable for many kinds of work.
The state of Texas could offer few reasons for criminalizing same-sex behavior other than the feeling shared by a part of the public that homosexuality violates moral decency. As a consequence, the Supreme Court took the stunning, almost unprecedented step of overruling in less than 17 years its earlier holding in Bowers. The majority opinion, written by Justice Anthony Kennedy, stated: “Bowers was not correct when it was decided, and it is not correct today. … [It] should be and now is overruled.”
The court’s rationale was a return to the substantive due process considerations of the past. But in a larger sense it was a moral argument in which the court identifies a liberty (not directly mentioned in the constitution) that it believes is fundamental to human autonomy. The court recognized that a line of cases beginning with Griswold v. Connecticut, which struck down a law prohibiting married couples from using contraceptives, through Roe v. Wade, which held that a woman has a right to choose abortion, was not consistent with its holding in Bowers. “The right to make certain decisions regarding sexual conduct extends beyond the marital relationship,” the court said. “The Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.”
The court also noted that Bowers had failed to understand the significance of the question of liberty that is integral to adult, consensual, noncommercial sexual acts, including homosexual acts. That interest in liberty was not in performing the act itself, but in the intimate relationship that performance of the act with another adult created, for it was that relationship that could become an important part of their mutual self-identities. At the time of Bowers, Justice Byron White, writing the majority opinion, had failed to see this connection when he wrote, “Proscriptions against that conduct [sodomy] have ancient roots.” Similarly, Chief Justice Warren Burger claimed that “condemnation of [homosexual] practices is firmly rooted in Judeo-Christian moral and ethical standards.” In contrast to this narrower language, Justice Kennedy cited a number of scholars who noted that prior to Bowers the legal and cultural history of same-sex sodomy condemnations was far less consistent and far more circumscribed.
Kennedy continued, “The issue is whether the majority may use the power of the state to enforce these [particular moral] views on the whole society through operation of the criminal law.” Noting that society had moved far beyond such paternalistic considerations, Kennedy added, “We think that our laws and traditions in the past half-century … show an emerging awareness that liberty gives substantive protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
More surprising was Kennedy’s invocation that Western Europe had years earlier struck down such laws. Kennedy’s extraterritorial references are significant in that they acknowledge that the issue the court is dealing with had already become part of a much larger international way of thinking about human dignity and the way humans deserved to be treated simply by being human. In the United States, this notion was enunciated in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the abortion decision in Roe v. Wade, and Romer v. Evans, which struck down Colorado’s state constitutional amendment that prevented its legislature or municipalities from passing antidiscrimination statutes in favor of gays, lesbians, or bisexuals. In Casey the court said that at the heart of the due process clause was a deep-seated connection between the value of personal dignity and human autonomy. In Romer the court said that a law “born of animosity toward the class of persons affected” could never provide a basis for discrimination.
Such moral thinking by the Court is not that unusual, except that in this case it represents an appeal to a much broader level of moral concern. The court’s holding in Lawrence clearly repudiated the view that, in the words of dissenting Justice Antonin Scalia, “a particular practice [traditionally viewed] as immoral … could be a sufficient reason for upholding the practice.” In its place the court substituted a constitutional foundation—and a broad moral vision—that is far more inclusive of the various ways different people might frame their lives. The court quoted Casey: “At 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.” What made Bowers so wrong, according to the court majority, was that its “continuance as precedent demeans the lives of homosexual persons,” both by denying them respect and by putting them in a position to be discriminated against in a way that heterosexuals are not. In Justice Kennedy’s words: “The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. [Lawrence and Garner] are entitled to respect for their private lives.”
Although the majority’s opinion didn’t directly engage the question of equal protection, Justice O’Connor’s did, but without overruling Bowers (perhaps because she did not want to reverse a decision she had earlier participated in creating). Still, even in Kennedy’s majority opinion, equal protection’s presence could be felt as treating like cases alike and rendering to each that which is their due.
Kennedy’s majority opinion undercuts Scalia’s claim that no fundamental right warranting a higher level of scrutiny was present in the majority’s position. The right to liberty Kennedy had in mind suggests he did not mean it to be easily overridden by particular social mores, even the social mores of a majority of legislators. Indeed, O’Connor’s more circumspect equal protection analysis suggests a similar idea. She wrote that while “prosecutions under Texas’ sodomy law are rare … the consequences of conviction are not.” In other words, a conviction under such a statute “would disqualify [the convicted] from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design.” By admitting this impact, O’Connor suggests that access to such social goods is a right that everyone holds, at least so long as they commit no crimes, and, obviously, a violation of a law based solely on social mores cannot be an appropriate crime. Consequently, according to both Kennedy’s and O’Connor’s opinions, the rights of gay people cannot be denied simply because the majority might not approve of all their conduct. This suggests that a higher degree of protection may be afforded in the future if social mores are the only basis for allowing discrimination.
In the end the court’s ruling in Lawrence is a major shift from where the court was when it decided Bowers 17 years earlier. Indeed, Justice Scalia was quite right when he pointed out that the court has taken sides in the “culture war”—that is, in the war between a traditional view of sexual mores and an alternative view that recognizes the legitimacy of gay relationships. But this taking of sides has only occurred because the culture war has been fought in terms of either being in favor of the status quo or against it. Were it that society did not affirm any particular moral view but left everyone to decide such questions for themselves, the court’s position would have been quite neutral. For the court then would have affirmed only an aspect of universal morality that regards all human beings as worthy of mutual respect and concern.
Lawrence presented a fact pattern that was closely analogous to the court’s infamous Bowers v. Hardwick decision, which upheld a Georgia law criminalizing homosexual acts. On the evening of September 17, 1998, Harris County, Texas, sheriff’s officers entered the home of John Lawrence. Much like what had occurred in Bowers 16 years earlier, the officers found Lawrence and Tyron Garner engaged in sodomy in Lawrence’s bedroom, except now it was anal sex, not oral sex; the state was Texas, not Georgia; and the social position of gays in society had become more acceptable. Nevertheless, the two men were arrested, charged with violating the state’s Homosexual Conduct Law, and jailed overnight. Although the time served and the subsequent fine were comparatively small, the implications of having such a law on the books were substantial. Not only did the law make people who engage in private gay sex criminals, it rendered people thought to engage in such activities unsuitable for many kinds of work.
The state of Texas could offer few reasons for criminalizing same-sex behavior other than the feeling shared by a part of the public that homosexuality violates moral decency. As a consequence, the Supreme Court took the stunning, almost unprecedented step of overruling in less than 17 years its earlier holding in Bowers. The majority opinion, written by Justice Anthony Kennedy, stated: “Bowers was not correct when it was decided, and it is not correct today. … [It] should be and now is overruled.”
The court’s rationale was a return to the substantive due process considerations of the past. But in a larger sense it was a moral argument in which the court identifies a liberty (not directly mentioned in the constitution) that it believes is fundamental to human autonomy. The court recognized that a line of cases beginning with Griswold v. Connecticut, which struck down a law prohibiting married couples from using contraceptives, through Roe v. Wade, which held that a woman has a right to choose abortion, was not consistent with its holding in Bowers. “The right to make certain decisions regarding sexual conduct extends beyond the marital relationship,” the court said. “The Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.”
The court also noted that Bowers had failed to understand the significance of the question of liberty that is integral to adult, consensual, noncommercial sexual acts, including homosexual acts. That interest in liberty was not in performing the act itself, but in the intimate relationship that performance of the act with another adult created, for it was that relationship that could become an important part of their mutual self-identities. At the time of Bowers, Justice Byron White, writing the majority opinion, had failed to see this connection when he wrote, “Proscriptions against that conduct [sodomy] have ancient roots.” Similarly, Chief Justice Warren Burger claimed that “condemnation of [homosexual] practices is firmly rooted in Judeo-Christian moral and ethical standards.” In contrast to this narrower language, Justice Kennedy cited a number of scholars who noted that prior to Bowers the legal and cultural history of same-sex sodomy condemnations was far less consistent and far more circumscribed.
Kennedy continued, “The issue is whether the majority may use the power of the state to enforce these [particular moral] views on the whole society through operation of the criminal law.” Noting that society had moved far beyond such paternalistic considerations, Kennedy added, “We think that our laws and traditions in the past half-century … show an emerging awareness that liberty gives substantive protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
More surprising was Kennedy’s invocation that Western Europe had years earlier struck down such laws. Kennedy’s extraterritorial references are significant in that they acknowledge that the issue the court is dealing with had already become part of a much larger international way of thinking about human dignity and the way humans deserved to be treated simply by being human. In the United States, this notion was enunciated in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the abortion decision in Roe v. Wade, and Romer v. Evans, which struck down Colorado’s state constitutional amendment that prevented its legislature or municipalities from passing antidiscrimination statutes in favor of gays, lesbians, or bisexuals. In Casey the court said that at the heart of the due process clause was a deep-seated connection between the value of personal dignity and human autonomy. In Romer the court said that a law “born of animosity toward the class of persons affected” could never provide a basis for discrimination.
Such moral thinking by the Court is not that unusual, except that in this case it represents an appeal to a much broader level of moral concern. The court’s holding in Lawrence clearly repudiated the view that, in the words of dissenting Justice Antonin Scalia, “a particular practice [traditionally viewed] as immoral … could be a sufficient reason for upholding the practice.” In its place the court substituted a constitutional foundation—and a broad moral vision—that is far more inclusive of the various ways different people might frame their lives. The court quoted Casey: “At 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.” What made Bowers so wrong, according to the court majority, was that its “continuance as precedent demeans the lives of homosexual persons,” both by denying them respect and by putting them in a position to be discriminated against in a way that heterosexuals are not. In Justice Kennedy’s words: “The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. [Lawrence and Garner] are entitled to respect for their private lives.”
Although the majority’s opinion didn’t directly engage the question of equal protection, Justice O’Connor’s did, but without overruling Bowers (perhaps because she did not want to reverse a decision she had earlier participated in creating). Still, even in Kennedy’s majority opinion, equal protection’s presence could be felt as treating like cases alike and rendering to each that which is their due.
Kennedy’s majority opinion undercuts Scalia’s claim that no fundamental right warranting a higher level of scrutiny was present in the majority’s position. The right to liberty Kennedy had in mind suggests he did not mean it to be easily overridden by particular social mores, even the social mores of a majority of legislators. Indeed, O’Connor’s more circumspect equal protection analysis suggests a similar idea. She wrote that while “prosecutions under Texas’ sodomy law are rare … the consequences of conviction are not.” In other words, a conviction under such a statute “would disqualify [the convicted] from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design.” By admitting this impact, O’Connor suggests that access to such social goods is a right that everyone holds, at least so long as they commit no crimes, and, obviously, a violation of a law based solely on social mores cannot be an appropriate crime. Consequently, according to both Kennedy’s and O’Connor’s opinions, the rights of gay people cannot be denied simply because the majority might not approve of all their conduct. This suggests that a higher degree of protection may be afforded in the future if social mores are the only basis for allowing discrimination.
In the end the court’s ruling in Lawrence is a major shift from where the court was when it decided Bowers 17 years earlier. Indeed, Justice Scalia was quite right when he pointed out that the court has taken sides in the “culture war”—that is, in the war between a traditional view of sexual mores and an alternative view that recognizes the legitimacy of gay relationships. But this taking of sides has only occurred because the culture war has been fought in terms of either being in favor of the status quo or against it. Were it that society did not affirm any particular moral view but left everyone to decide such questions for themselves, the court’s position would have been quite neutral. For the court then would have affirmed only an aspect of universal morality that regards all human beings as worthy of mutual respect and concern.
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Vincent J. Samar, a Chicago-area adjunct professor of law and philosophy, is the author of The Right to Privacy: Gays, Lesbians and the Constitution.
