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Decriminalizing same-sex behavior: Part 3

Rulings in the U.S. Supreme Court case:
Lawrence v. Texas (2003)

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Developments leading up to the Supreme Court ruling are in a separate essay.

Reactions to the U.S. Supreme Court ruling are covered in a separate essay

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bullet Gays are "entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime." Justice Anthony M. Kennedy, Lawrence v. Texas, 2003-JUN-26. 1

bullet "A conservative Supreme Court has now identified the gay rights cause as a basic civil rights issue." Linda Greenhouse, reporter, The New York Times. 1

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Topics covered in this essay:

bullet Court rulings
bullet Basis of the ruling
bullet Impact of the ruling

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Rulings by the U.S. Supreme Court:

On 2003-JUN-26, the court made two rulings in Lawrence v. Texas. [539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003)].

bullet Unnoticed in almost all media reports was a 5 to 4 decision to overturn the court's famous 1986 decision: Bowers v. Hardwick. 2 That ruling had upheld the constitutionality of a sodomy law in Georgia. Justice Kennedy, writing for the majority, apologized for the court's error. In an amazing passage, he stated that Bowers' "continuance as precedent demeans the lives of homosexual persons....[That decision] was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

bullet Then the court voted 6 to 3 to declare as unconstitutional the Texas anti-sodomy law which criminalized anal and oral sex if performed by two same-sex persons. 3 They appear to have based their decision on the concept of personal privacy and liberty from government intervention, which the court earlier found to be implicit in the U.S. Constitution when the famous Roe v. Wade decision was handed down in 1973. The latter ruling declared early abortions to be legal across the U.S.

Writing for the majority, Justice Anthony Kennedy stated that: "The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under (the Constitution) gives them the full right to engage in their conduct without intervention of the government....[They] are entitled to respect for their private lives...The state cannot demean their existence or control their destiny by making their private sexual conduct a crime....In our tradition the State is not omnipresent in our home...Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." 3 Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O'Connor agreed with the majority decision, but disagreed with portions of Justice Kennedy's rationale. In a separate opinion, she indicated that the law should have been overturned because it violated the 14th Amendment to the U.S. Constitution which guarantees equal protection for all persons. The majority ruling had ignored the 14th Amendment implications of the case. 4 She wrote that the Texas law "brands all homosexuals as criminals," and makes it more difficult for them to be treated in the same manner as heterosexuals. 2

In an obvious reference to same-sex marriage, the majority report stated that the case did not "involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." 5 The decision decriminalized same-sex behavior; it did not guarantee gays and lesbians the right to marry.

" Justice Kennedy was reading excerpts from his decision, the mood in the courtroom went from enormous tension and then -- on the part of the numerous gay and lesbian lawyers seated in the bar section -- to visible relief. By the time he referred to the dignity and respect to which he said gays were entitled, several were weeping, silently but openly." 3

Justice Antonin Scalia wrote the minority opinion and took the unusual step of reading his dissent from the bench. He wrote in part: "The court has largely signed on to the so-called homosexual agenda...The court has taken sides in the culture war....This reasoning leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples." He added: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda though normal democratic means." He commented that the court is "departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed.3,6 Justice Scalia wrote that the majority Justices pretended that they have left enough freedom "... so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada...Do not believe it...[The majority 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." 2 He said that laws against bigamy, adultery, prostitution, bestiality and obscenity were now susceptible to challenges. 1

Chief Justice William H. Rehnquist and Clarence Thomas also dissented. Thomas wrote a separate opinion in which he found the Texas law "uncommonly silly." He wrote that: "Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." 5 He said that if he were a Texas legislator, he would vote to repeal the law. However, he could not agree to strike it down as unconstitutional because he found no guarantee of privacy contained within the words of the U.S. Constitution.

It is interesting to note that the three Justices who voted for retaining the Texas law also were the only three to vote in favor of Colorado's Amendment 2 -- a state constitutional amendment which prevented municipalities from adding "sexual orientation" as a protected criteria in their anti-discrimination laws. 7

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The basis of the court's decision:

There were two obvious approaches that the plaintiff's attorneys could make to  argue against the Texas law. They could base their case:

bullet On an individual's right to privacy -- to be free of government intervention -- or
bullet On the 14th Amendment to the U.S. Constitution, which guarantees that all persons will receive equal treatment under the law.

The 1986 case had challenged a Georgia law which criminalized oral and anal intercourse. It was largely based on a person's right to privacy from government intervention. The appeal was unsuccessful. The 2002/2003 case was mainly based on the 14th amendment to the U.S. Constitution. The latter was a logical approach in the case of the Texas law because the legislation criminalized specific behaviors when they were performed by a same-sex couple which were quite legal in the state if done by a man and woman. Ruth Harlow, of the Lambda Legal Defense Fund, said: the Texas law "brands gay people as second-class citizens....[The plaintiffs were] punished for engaging in consensual sexual intimacy in the privacy of one of their homes. Texas' homosexual conduct law targets gay and lesbian couples while leaving heterosexual couples free to engage in the very same acts." 8 In spite of the plaintiffs' case, the court appears to have based their decision mainly on privacy considerations.

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Impacts of the court's decision:

Gays, lesbians, and their supporters thought that they had a good chance that the U.S. Supreme Court would find the Texas law, and those similar laws in three contiguous states, unconstitutional. In their wildest dreams, they hoped that the decision of the court would be so broad as to declare unconstitutional all 13 state sodomy laws.

Social conservatives and conservative Christians were worried that the Court might overturn the sodomy laws in the four states. Their worst nightmare was that all 13 state sodomy laws would be declared unconstitutional.

Neither side appears to have been prepared for the breadth of the decision by the court. It went well beyond the wildest dreams of one group and the worst nightmare of the other. According to legal experts, the court not only overturned all 13 state sodomy laws, but declared a new principle of constitutional law: states are now severely restricted in criminalizing private, consensual sexual activity by adults.

In the Court's decision:
bullet The Texas "sodomy" law was declared unconstitutional.

bullet Similar laws in Kansas, Missouri, and Oklahoma were invalidated.

bullet The "sodomy" laws in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia were impacted. Since the court ruling implied that the state has no business in criminalizing private, consensual sexual behavior by adults, legal experts have reasoned that the laws in these nine states are now also unconstitutional.

Thus, a single decision of the Supreme Court has invalidated sodomy laws in 13 states and has decriminalized private sexual behavior by any adult couple -- whether heterosexual, homosexual or bisexual -- anywhere in the country. This ruling is expected to accelerate the drive by the gay and lesbian community, and their supporters, for the acceptance of homosexuality as a normal, natural sexual orientation for a minority of humans. It will probably boost their campaign to enlarge the definition of marriage from its current special privilege for opposite-sex couples, and allow same-sex couples to marry. In the past, it has been difficult to argue in favor of same-sex marriage while same-sex sexual activities were still considered criminal acts in some states.

Ken Connor, president of the Fundamentalist Christian Family Research Council issued a media advisory on JUN-25: "In the amicus brief FRC filed for this case and in every public statement we have made, we have acknowledged that this case is not just about Texas' law banning homosexual sodomy. With their ruling in this case, the Supreme Court will either protect the sanctity of marriage or they will put this country on the fast track to recognizing same-sex marriages. The law has historically respected and protected the marital union and has distinguished it from acts outside that union, such as fornication, adultery and sodomy. To extend homosexual sodomy the same protections given to the marital union would undermine the definition of marriage and could open the door for homosexual marriage. The court should demonstrate judicial humility and decline to deconstruct in radical and revolutionary ways the bedrock social institution of marriage." 9 (Emphasis theirs).

Diana Hassel, associate professor of law at the Roger Williams University said that the Supreme Court had established a new benchmark in privacy that had never existed in the past. She said: "This is going to carve out protection for private sexual behavior. As long as it's between consenting adults [in private], this ruling would appear to cover it." 6 There are a many private sexual acts performed by significant numbers of adults in the U.S. which have the theoretical potential of leading to arrest and prosecution in a few states. These may eventually be decriminalized by new legal challenges which cite the privacy and liberty rulings in Lawrence v. Texas. Included might be:

bullet Adultery (sexual activity by one person with a married person),

bullet Father-daughter consensual adult incest, if one partner is sterile,

bullet Fornication (sexual activity by unmarried opposite-sex couples),

bullet Spouse swapping,

bullet Three or more adults engaging in sexual activity together,

bullet Sadomasochism between partners.

bullet Taking pictures of sexual activities for the private use of the couple.

bullet Buying sex toys, like vibrators. Apparently "at least 14 states around the country have passed laws that prohibit the sale of sexual devices....Some states have bans in only certain zip codes; others lackadaisically enforce their law." But Alabama, Georgia and Texas actively prosecute infractions of their laws. 12 Texas law refers to vibrators and similar items as "obscene devices" which are "designed or marketed as useful primarily for the stimulation of human genital organs." A person owning seven or more such devices can be charged with "intent to promote," a class A misdemeanor. The legislators appear to be haunted by the fear that someone, somewhere in their state is unnecessarily happy. 13

It might not be too much of an exaggeration to say that the U.S. Supreme Court has added to the historic wall of separation between church and state by creating a new wall of separation between state and morality. Present and future laws criminalizing what the state considers to be immoral acts may well be unconstitutional. In Canada during 1967, Justice Minister Pierre Trudeau expressed a similar opinion when he said: "The state has no place in the bedrooms of the nation." 14 What is done in private between consenting adults should not be the focus of criminal legislation. The decision in Lawrence v. Texas may have as major an effect on American culture as did Roe v. Wade which legalized access to early abortions for women across the U.S.

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  1. Linda Greenhouse, "Justices, 6-3, legalize gay sexual conduct in sweeping reversal of court's '86 ruling. Cite privacy right. Texas sodomy law held unconstitutional - Scathing dissent," The New York Times, 2003-JUN-27, Page A1 & A19
  2. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.
  3. "High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at:
  4. "Court overturns Texas sodomy law," MSNBC News, 2003-JUN-26, at:
  5. "Excerpts from Supreme Court's decision striking down sodomy law," New York Times, 2003-JUN-27, Page A18.
  6. "Supreme Court strikes down Texas sodomy law," Law Center, 2003-JUN-26, at:
  7. The amendment had been adopted by a vote of 53% in a referendum on 1992-NOV-3. It was overturned by the U.S. Supreme Court in Romer v. Evans. The Court concluded that the Amendment was based on hatred of a specific group and that the fundamental rights of gays and lesbians had been violated. The court declared the amendment null and void.
  8. Charles Lane, "Court to Hear Texas Case on Gay Rights: Challenge to State's Sodomy Statute Could Lead to Landmark Ruling," Washington Post, 2002-DEC-3, Page A12. Online at: You need software to read these files. It can be obtained free from:
  9. "FRC Ready to Respond to Supreme Court Ruling in Texas Sodomy Case," Family Research Council, 2003-JUN-25, at:
  10. "Supreme Court applies sodomy ruling to case involving a gay youth,", 2003-JUN-28 to 30, at:
  11. Tony Rizzo, "Kansas told to rethink gay sex case," The Kansas City Star, 2003-JUN-28, at:
  12. Jenifer Joseph, "Sexual Buzzzz Killer: States banning vibrators and other marital aids," ABC News, at:
  13. Meghan Scott, "Second Sex #1: Outlaw," Society for Human Sexuality, at:
  14. Christine Overall, "Trudeau Was Right. State Should Stay Out Of Nation's Bedrooms," Kingston Whig Standard, Kingston ON, 2004-JUN-28, at:

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See also the secondary ruling in Lawrence v. Texas

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Texts of court documents related to Lawrence v. Texas:

bullet "Petition for a Writ of Certiorari to the Court of Appeals of Texas," 2002-JUL-16, at:

bullet "Syllabus," "Opinion of the Court" etc., 2003-JUN-26, at:

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Copyright © 2003 to 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2003-JUN-26
Latest update: 2005-OCT-22
Author: B.A. Robinson

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